Bourgon HR Blog: HR Advice & Outsourcing Tips for Small Companies

Mike Bourgon

Recent Posts

Medical Marijuana Law Clouds Minnesota Employer Drug-Free Workplace

Posted on Mon, Jun 22, 2015

On May 29, 2014, Minnesota Gov. Mark Dayton signed into law legislation making Minnesota the 23rd jurisdiction to adopt a law authorizing the use of medical marijuana.

The new Minnesota medical marijuana law (MML) promises to cloud and add complexity to administration of Minnesota employers' drug-free workplace programs and compliance with and rights under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA).

Does a Minnesota employer have to accommodate an employee with a verified marijuana positive test result because that employee consumed marijuana in accordance with the MML? The MML's terms suggest that the answer may be "yes," at least in some circumstances. While the supreme courts in four states and one federal appeals court have answered "no" to that question, those states' medical marijuana laws do not include employee protections like those provided in the MML.

No Federal Law Protection

Marijuana is designated a Schedule I (illegal) controlled substance under the federal Controlled Substance Act (CSA). Many years ago, the U.S. Supreme Court settled any doubt about whether individuals could lawfully grow or use marijuana for medicinal purposes despite that designation, ruling that Congress has the authority to make such uses unlawful and that the states cannot legalize what Congress had made unlawful.

Given marijuana's illegal status at the federal level, employers have no duty to accommodate its use under the Americans with Disabilities Act. Additionally, the U.S. Department of Transportation and other federally mandated drug-free workplace programs have steadfastly rejected medicinal marijuana use as a basis to report a positive marijuana test result as excused or "negative" on a federally mandated test. Thus, there is no general protection under federal law for marijuana consumption.

The MML is thus directly contrary to the federal CSA, which defines and criminalizes marijuana as including "all parts of the plant Cannabis . . . resin extracted from any part of such plant and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin."

Current Law

Minnesota law presently permits employers to take adverse employment action on the basis of a verified positive marijuana test result, provided the employer is in compliance with the detailed requirements of the DATWA. Significantly, however, DATWA defines "drug" as "a controlled substance as defined in" the Minnesota Controlled Substances Act (MN-CSA).

MN-CSA, like the federal CSA, designates marijuana ("all parts of the plant . . . Cannabis") as a controlled substance, the unlawful use of which is a crime under state law. The MML now amends the MN-CSA to decriminalize certain use of "medical cannabis" ("any species of the genus cannabis plant"), notwithstanding that the MN-CSA continues to criminalize other marijuana use.

General MML Provisions

The MML generally provides state criminal and civil protections to patients who enroll in a state registry program who may use or possess marijuana, and registered caregivers who possess marijuana. Registry participation requires certification by a health care practitioner that a patient has been diagnosed with one of nine qualifying medical conditions:  cancer, glaucoma, HIV/AIDS, Tourette's Syndrome, amytrophic lateral sclerosis (ALS), seizures, Crohn's disease, "severe and persistent muscle spasms," terminal illness (with a probable life expectancy of under one year) as well as any other medical condition or its treatment approved by the Minnesota commissioner of health. Unusually, only marijuana use "delivered" via liquids, pills or a vaporized delivery method that uses liquid or oil and not requiring use of dried leaves/plants is protected. Under the MML, medical marijuana will be distributed through in-state manufacturers registered by the Minnesota Commissioner of Health (there is no provision for patients to grow/process and then use their own medical cannabis).

MML Employment Protections Go Beyond Those Adopted by Any Other State

Unlike the great majority of state medical marijuana legislation, the MML directly prohibits employers from discriminating against MML program participants, with few exceptions. Specifically, unless a failure to take adverse action would violate a federal law or regulation or cause an employer to lose a monetary or licensing benefit under federal law or regulation, the MML prohibits employers from discriminating against or otherwise penalizing a person with respect to hiring or other terms and conditions of employment if the adverse actions are based on the person's status as a patient enrolled in the state registry or "a patient's positive drug test" unless the patient used, possessed, or was impaired by medical marijuana on employer premises or during hours of employment.

The latter prohibition in particular creates significant problems for workplace testing programs, which often rely upon positive test results as the best evidence that an employee has come to work "under the influence" or impaired by illegal drugs. Under this standard, how will employers prove that an employee used, possessed, or was impaired by medical marijuana at work? (Most employer test methods measure recent use, not impairment, which could result from use occurring days or even weeks before the test). Will reasonable suspicion determinations include employee searches, or drug-sniffing dogs? Even more troubling, the MML effectively prohibits employers from denying employment to any applicant with a medical marijuana prescription and a positive pre-employment drug test, even if the applicant is to be placed in a safety-sensitive position, because employers will be unable to show an applicant's use, possession or impairment on employer premises or during hours of employment.

The MML goes further, providing, “An employee who is required to undergo employer drug testing pursuant to [DATWA -- the state workplace testing law] may present verification of enrollment in the patient registry as part of the employee's explanation under [that law].

 This MML "explanation" provision effectively eliminates employers' abilities to take adverse action if an employee's explanation for a positive test result is lawful medical marijuana use, unless the employer can also show impairment, possession, or use while at work.

Minnesota joins Arizona and Delaware as states with medical marijuana laws prohibiting discrimination solely on the basis of a confirmed positive marijuana test. No reviewing court in those states has decided whether, under the federal Controlled Substances Act, an employer must accept as valid an employee's excuse that a positive drug test was the result of medical marijuana use. And none of those states' medical marijuana laws create, as the MML does, an express law endorsing medical marijuana use as an acceptable explanation for a positive workplace test result. Minnesota employers with workplace testing programs will clearly be navigating uncharted waters under the MML.

Minnesota's Lawful Consumable Products Statute Fogs the Issue Further

Minnesota's Lawful Consumable Products (LCP) statute may also be affected by the enactment of the MML. The LCP prohibits Minnesota employers from refusing to hire an applicant or disciplining or discharging an employee on the basis of off-premises use of any lawful consumable product, absent specified exceptions, such as restrictions founded on "bona fide occupational" requirements "reasonably related to employment activities." While Minnesota employers can argue that marijuana continues to be illegal under federal law, it is likely that marijuana advocates will argue medical marijuana use is protected under the LCP as well. Notably, a legal challenge under a similar lawful products statute and state marijuana legislation is now pending before the Colorado Supreme Court, although to date, Colorado's courts have declined to hold that marijuana is lawful within the meaning of the law despite state-regulated sales occurring throughout the state.

Practical Problems in the Testing Process and Additional Due Diligence Steps

The MML creates new practical problems in the drug testing process, and warrants employer preparedness efforts. Testing vendors are not generally equipped to distinguish between positive test results caused by medicinal marijuana use versus smoking marijuana or other uses that will continue to be illegal even under the MML. That technology is either currently unavailable or, if available, very costly. Compliance with DATWA can also limit an employer's ability to make impairment determinations. While saliva samples show more recent use, DATWA testing requirements on sample retention and re-testing may limit the ability to use saliva samples (and DATWA encourages the use of urine samples, which may report use weeks prior to testing). 

As a result, due diligence steps in detection efforts will be critical, even prior to institutional decision-making about employer action in the event of a positive test result. If an employee, for example, claims MML-authorized marijuana use, an employer or the employer's Medical Review Officer should request to see the donor's "registry verification," which is the verification provided by the Minnesota Commissioner of Health that a patient is enrolled in the state registry. Review of the registry verification may generate additional investigation (e.g., if there is any information that suggests the verification is fraudulent). Assuming an employee does produce such a registration, however, employers may find themselves obligated to determine if the worker is in need of any other accommodation in order to perform the essential functions of his or her job. Trained human resources professionals will no doubt play a critical role in navigating these murky waters.

Preparing for Stormy Weather: What Can Employers Do?

Given the direct conflict between federal and state law, we anticipate that the employment law provisions of the MML will be subject to legal challenge. Unless and until the law is found to conflict with federal law, however, employers can take some affirmative steps in response to the MML in support of their drug-free workplace programs. Workplace testing policies may need updating to ensure that an employer's policy clearly defines illegal drug use, and should provide a clear statement that the employer reserves the right to take adverse action based on a verified positive marijuana test result to the fullest extent permitted by the law.

Conversations with vendors would also be prudent. Those conversations should include some direct discussions about test methods, receipt of information and result-reporting protocols.

Finally, when medical marijuana is identified to explain a positive test result, employers should not abandon ship. The employer may be able to show that the employee was impaired at work. If not, there may be some reasonable accommodation available that does not include the use of medical marijuana. Alternatively, an employer may be able to show that the employee is not considered fit for safety-sensitive work while he or she uses the drug. Inevitably, an individualized discussion with each employee who uses medical marijuana will likely be necessary in connection with workplace testing and substance abuse policy administration.

Conclusion

Although the MML is effective on May 30, 2014, the day after it was signed, it will take time for Minnesota to establish rules on recognized and/or lawful sources for medical marijuana, and to set up the state registry program for patients authorized to use medical marijuana. Some of the deadlines identified in the legislation extend into mid-2015. Nevertheless, employers may wish to begin preparing now for those changes.

Mike Bourgon
Bourgon HR Solutions
mike@bourgonhrsolutions.com

Marijuana & Employment In Today’s Changing World

Posted on Thu, Mar 19, 2015

Because the laws governing the possession and use of marijuana for medical and recreational purposes are changing, we thought this brief guide might be of use to readers.

According to Danielle S. Urban, a partner in the Denver office of Fisher & Phillips LLP, representing employers nationally:


Marijuana remains a Schedule I controlled substance under federal law.  If you are an employer subject to federal drug-free workplace laws or federal safety regulations such as the federal Department of Transportation regulations you must maintain a drug-free workplace and will need to continue to comply with federal drug-testing and reporting protocols.  

Unless you are an employer in a state that explicitly protects medical marijuana users from adverse employment action, such as Arizona or Minnesota, you are free to maintain and enforce zero-tolerance drug and alcohol policies in the workplace, and this includes marijuana used for medical purposes.  

According to Urban, employees should start with the following:

Consider workplace policies drug and alcohol policies regarding medical and recreational marijuana prior to being faced with a positive employee test.  If you do not have drug and alcohol policies, now is the time to consider putting them in place.  If your policies do not specifically address marijuana, update your policies to expressly address how marijuana, including medical marijuana use, will be addressed.  

No employer is required to accommodate an employee’s marijuana use at work, nor is any employer required to accommodate employees who may be impaired on the job.  

In fact, employers who permit employees to work impaired may be subject to legal liability.  

If the employer maintains “zero-tolerance” policies, the employer should take steps to remind all employees of this policy and explicitly state that this includes medical marijuana use.  Spell out the consequences for a positive test result.  With few exceptions, most employers are not required to accommodate medical or recreational use of marijuana, and are not required to continue to employ employees who test positive for marijuana, even if the employee shows no signs of impairment at work.           

Read more of Urban's guide including advice on how to deal with positive tests for employees with a prescription for medical marijuana, what is an employer’s potential legal liability should an impaired employee injure someone else at work, and best practices for employers to consider implementing now.

Tags: marijuana

Partnering with AIA for Employee Handbook Seminar in Minneapolis

Posted on Mon, Oct 03, 2011

Bourgon HR Solutions is proud to announce that we're partnering with our friends at Associated Insurance Agents of Minnesota for a seminar on focused on the importance of the small business employee handbook.

We'll be providing HR training on updating or creating an effective employee handbook or manual.

bandaid crackedwall SMLToo many companies take a band-aid approach to fixing the cracks in their HR policies, and the employee handbook ends up leaving the employer open to potential litigation.

We're thrilled to be providing this seminar for Associated Insurance Agents, Inc. and their clients in September. We'll be training them how to:

  • clearly communicate company expectations
  • create an affirmative defense against litigation
  • ensure compliance with state and federal requirements

If you have an interest in having Bourgon HR Solutions conduct a workshop for your company on creating anemployee handbook, please contact us here.

Tags: employee handbook, hr seminar