As the use of medical marijuana gains steam across the nation, the intersection of state and federal laws is unresolved and presents unique challenges for employers. The primary areas of practice for Ohnstad Twichell are in the states of North Dakota and Minnesota – one state in which medical cannabis is legal and one state in which it may become legal in the near future.
In 2015, medical cannabis was legalized in Minnesota. North Dakota voters will likely be deciding in next year’s election whether to join the growing number of states that have legalized marijuana. If passed, qualified North Dakota residents could possess up to three ounces of medicinal marijuana for treatment of certain debilitating medical conditions.
Until North Dakota legalizes medical cannabis, employers may treat the use and possession of medical cannabis in the workplace as an illegal drug. However, under Minnesota law, a state resident who qualifies may use or possess medical cannabis and not be punished under state civil or criminal laws. Minnesota employers must conform their practices in the workplace accordingly. The question is how to accomplish such conformity in line with all laws, including federal laws that have not legalized medical cannabis. Simply put, while more state laws are permitting the use of medical cannabis, its use and possession are criminalized under federal laws, carrying stiff penalties.
It is not entirely clear how the legalization of cannabis affects employers across the board; however, we do know that the legal use of cannabis creates a dilemma in the workplace. With some exceptions, under Minnesota’s medical cannabis law, employers are prohibited from discriminating against a qualified cannabis user/possessor in any term or condition of employment, as well as hiring and firing. A Minnesota employer may not punish a qualified person because they are enrolled in the medical cannabis registry program and they test positive for cannabis use unless the person used, possessed, or was impaired by medical cannabis during working hours or in the workplace. An employer’s drug testing policy may require modification to comply with this law, but that does not end the inquiry.
The conflicts created between state and federal laws are evolving and yet to be resolved. While state law may specifically exempt medical cannabis use from state criminal statutes, medical cannabis remains illegal under federal criminal statutes. For instance, the Americans with Disabilities Act (ADA) has not addressed medical cannabis. While the ADA requires an employer to provide reasonable accommodations to qualified individuals with disabilities, it does not require an employer to provide an accommodation for a person engaged in the use of medical marijuana when it is an illegal drug under federal law. The Drug-Free Workplace Act prohibits illegal drug use by employees working for federal contractors or employers receiving federal money. Federal law may require drug testing of certain employees, but does not allow medical cannabis as an exception for a positive drug test even when it may be legal under state law. An employee may be protected from termination of employment for using medical cannabis under state law, but not under federal law.
On July 1, 2015, manufacturers began supplying medical cannabis to patients in Minnesota. Within days, on July 15, 2015, the Colorado Supreme Court upheld the firing of a quadriplegic employee who tested positive for using medical marijuana outside of working hours. The employee was a registered medical cannabis user permitted by the laws of the State of Colorado. The Colorado court recognized the federal Controlled Substances Act which lists marijuana as an illegal drug. Because the employee’s activity was not lawful under both state and federal law, his termination was upheld.
There are no easy answers to the questions arising from the conflict between state and federal laws. Employers are advised to continually review their employee manuals and policies and to make changes applicable to their individual circumstances. The experienced attorneys at Ohnstad Twichell can assist your company in navigating the state and federal laws and determining the best approach for your business.
The information provided in this letter is of a general nature and should not be acted upon without prior discussion with your Ohnstad Twichell, P.C., attorney.