December 1, 2015 Update:
The Minnesota Department of Health chose Minnesota Medical Solutions and Leafline Labs as the two manufacturers for Minnesota’s medical marijuana program.
Earlier this spring, the Minnesota Legislature and Governor Dayton enacted a law that provides a limited medical cannabis distribution system. Starting in July 2015, access to the drug will be permitted to about 5,000 Minnesotans on an established Patient Registry who suffer from a list of specified conditions. It may not be smoked, or used in plant or leaf form. The Patient Registry System will be created to allow for the purchase and use of the treatment. The Minnesota Medical Marijuana Law (“MML”) is considered to be one of the most restrictive in the country.
The Minnesota Department of Health (MDH) Office of Medical Cannabis published a formal Manufacturer Request for Application (RFA) on September 5, 2014 for interested parties to apply to be medical marijuana manufacturers. Applications are being accepted through October 3rd. The RFA is the state’s formal solicitation of applications from parties interested in becoming one of two registered medical cannabis manufacturers responsible for growing, processing and distributing medical cannabis to Minnesotans with qualifying conditions. The Department expects to register two manufacturers by December 1, 2014.
In addition, the MDH has released for comment the second draft of the proposed medical marijuana manufacturer rules. An official 30-day comment period begins in early October after the next version of rules are proposed. The MDH has indicated it plans on beginning expedited rulemaking in late 2014 for patient and provider rulemaking which will address the requirements to participate in the medical cannabis program. The MDH also published a formal Request For Comments in the State Register on July 28, 2014 (PDF) (page 126) which will address all aspects of the medical cannabis registry program and the MDH has indicated it does not anticipate proposing these rules until early 2015.
The MML provides state criminal and civil protections to eligible patients who enroll in a state registry program, to be created, and who may use or possess marijuana, in the form specified by the new law, and to registered caregivers who possess such marijuana. Only marijuana use “delivered” via liquids, pills or a vaporized delivery method that uses liquid or oil is protected. The new law does not allow marijuana to be smoked or used in plant or leaf form. 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 treatment approved by the Minnesota Commissioner of Health. Medical marijuana will be distributed through two in-state manufacturers registered by the Minnesota Commissioner of Health and distribution of medical cannabis to patients under the registry is to occur by July 1, 2015. The Commissioner is empowered with various duties and authority, including the adoption of rules to implement the new law and already, a second version of proposed rules have been published for comment.
The MML prohibits employers from discriminating against MML enrolled program participants, with several exceptions. Unless a failure to take adverse action would violate federal law or cause an employer to lose a monetary or licensing-related benefit under federal law, the MML prohibits an employer from discriminating against a person with respect to hiring, termination, or other terms and conditions of employment, or otherwise penalizing a person if the discrimination is based on either of the following:
- the person’s status as a patient enrolled in the state registry or
- a patient’s positive drug test for cannabis components or metabolites unless the patient used, possessed, or was impaired by medical cannabis on employer premises or during hours of employment.
A person who undergoes employer drug testing pursuant to the Minnesota Drug Testing law may present verification of enrollment in the patient registry as part of the employee’s explanation of a positive test result. The MML prohibition may create problems for some 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 is impaired by illegal drugs. It is not clear how employers will be able to prove that an employee used, possessed, or was impaired by medical marijuana at work. Most drug and alcohol test methods measure use, not impairment, and in the case of marijuana, the employee could test positive from use occurring days or even weeks before the test. The MML may make it difficult for employers to deny 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, unless the employer is able to establish an applicant’s use, possession or impairment on employer premises or during hours of employment.
The MML provides as follows:
An employee who is required to undergo employer drug testing pursuant to [the Minnesota drug testing law] may present verification of enrollment in the patient registry as part of the employee’s explanation under [the drug testing law]. The MML provision allowing employees to provide such an “explanation” may serve to effectively eliminate an employer’s ability to take adverse action if an employee’s explanation for a positive test result is lawful medical marijuana use unless the employer can also demonstrate impairment, possession, or use while at work.
Minnesota and Federal Law Differences
Marijuana is designated as a Schedule I controlled substance under the federal Controlled Substance Act (CSA) and as a consequence, there is no protection under federal law for marijuana use of any sort. The Minnesota Controlled Substance Act (MN-CSA), like the federal law, designates marijuana as a controlled substance and its unlawful use is a state law crime. The MML amends the MN-CSA, however, to decriminalize certain use of “medical cannabis,” even though the MN-CSA continues to criminalize other marijuana use.
Under the Minnesota Drug Testing statute, employers are permitted to take adverse employment action on the basis of a verified positive marijuana test result. The Minnesota Drug Testing law defines “drug” as “a controlled substance as defined in” the MN-CSA. The MML, however, includes protections prohibiting discrimination solely on the basis of a confirmed positive marijuana test and permits medical marijuana use as an acceptable explanation for a positive workplace test result.
Employers must also remain mindful of the Minnesota Lawful Consumable Products statute. That statute 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. (e.g. restrictions due to “bona fide occupational” requirements “reasonably related to employment activities”). Minnesota employers can anticipate that some marijuana users will assert that medical marijuana use is protected under the Lawful Consumable Products statute even though such use is not legal under federal law.
Testing Process Considerations
For those Minnesota employers who have a proper drug testing policy and utilize the services of testing companies, it is important that the employer ensure how the testing process will work since many testing companies do not distinguish between positive test results caused by medicinal marijuana use versus smoking marijuana. Consequently, focusing on factual behavior in the workplace will be critical before taking employer action. Employers are also encouraged to verify information in the donor’s registry verification provided by the Minnesota Commission of Heath.
In light of the differences between state and federal law, it is possible the employment law provisions of the MML will result in some legal challenges. Employers can certainly be expected to continue to expect compliance with their alcohol and drug-free workplace programs. Workplace testing policies will need to be updated by 2015 to ensure that the policy appropriately defines illegal drug use, and includes a clear statement that the employer reserves the right to take adverse action based on a verified positive marijuana test result as permitted by the law.
In situations where an employee’s positive test result is explained by use of permitted medical marijuana, the employer may be able to show that the employee was impaired at work. Before considering such a decision, the employer needs to ensure that its personnel have appropriate training and expertise to make such a conclusion. Employers also need to consider whether or not some reasonable accommodation may be appropriate depending on the totality of the situation and job-related considerations, including if the employee is in a safety-sensitive position.
Although progress has already begun on the creation of the rules required to effectuate the new law, much more work will be needed to establish the state registry program for patients who will be authorized to use medical marijuana. Minnesota employers will need to be alert to further rule-making by the MDH, as well as legal challenges that are certain to occur.