Drug Testing in the workplace
This spring, Minnesota became the 22nd state in the union to allow residents to use marijuana for medical treatment. The state has also joined a smaller handful of others in banning discrimination against workers who use medical marijuana. Whether or not you support legalizing medical marijuana, this law is certain to pose challenges for companies that require workers to undergo drug testing.
If your business mandates employee drug tests, now is the time to review your policies and ensure that they comply with both Minnesota and federal drug laws—a fine line to walk!
What about safety?
For businesses that employ workers in safety-sensitive positions, developing a clear drug and alcohol policy is essential to maintaining a safe working environment and limiting legal liability. Many businesses deal with this challenge by requiring workers to take drug tests when they’re hired and as a regular part of their employment. If you use drugs, they reason, you shouldn’t be in a safety-sensitive job.
Under the new medical marijuana law, however, employers may not discriminate against workers because they are a patient enrolled in a marijuana program or because they test positive for marijuana (if they use it medically). That means your company cannot simply terminate or refuse to hire any person who repeatedly fails drug tests. Instead, employees who are registered marijuana patients can generally only be terminated for using marijuana if they use or possess marijuana while they are at work or come to work under the influence.
This policy means that managers can no longer rely on drug tests to weed out all drug users. They must be aware of employee behavior and take action if workers are not acting safely and responsibly.
The medical marijuana legislation does allow businesses to treat medical marijuana users differently if federal law or regulations require them to. This means that employers who have federally regulated jobs—like commercial driver or pilots—can be terminated (or never hired) for failing drug tests, even if they are legal medical marijuana users.
Another exception is that employers can still maintain a sober work environment. While you cannot discriminate against workers for using medical marijuana in their off hours, companies may bar workers from bringing marijuana to the office or worksite, and they can ban them from coming to work under the influence.
Employers should have policies in place for dealing with workers that are registered medical marijuana patients. However, the law only allows a limited group of patients access to medical marijuana. In order to qualify, a patient must be suffering from one of the following conditions:
Cancer (if it produces severe pain, nausea, or wasting); glaucoma; HIV, Tourette’s; amyotrophic lateral sclerosis; seizures (including epilepsy); severe and persistent muscle spasms (including multiple sclerosis); Crohn’s disease; or a terminal illness, with a probable life expectancy of under one year (if the illness causes severe pain, nausea, or wasting).
The commissioner may also approve other conditions that would make a patient eligible for medical marijuana.
While the list of eligible conditions may seem long, it is relatively narrow compared to legislation in other states. California for example allows patients with migraine disorder to receive medical marijuana, and Massachusetts gives doctors discretion to determine which patients are suffering from a “debilitating” medical condition.
Minnesota’s medical marijuana law also stands out from other states because it does not allow patients on the registry to smoke marijuana. Instead, they can only use marijuana that is in liquid, oil or pill form. Since current drug tests cannot distinguish between marijuana that’s smoked or ingusted by one of the medically legal methods, however, employers will have no way of knowing whether workers are complying with this requirement.
Patients who qualify to use medical marijuana in Minnesota will need to apply for entry into a state registry. Once a patient is in the registry, they will be able to obtain marijuana products from state licensed distribution facilities.
Importantly, although the law is already in effect, the Department of Health has not yet established the registry and the state has not yet approved any manufacturers. Practically speaking, patients will not be able to obtain medical marijuana legal until July 2015.
Minnesota is part of a wave of states that have recently legalized medical marijuana, but few states have created such explicit protections for workers who qualify for the program. As the new medical marijuana law goes into effect, you should review your company’s drug policy to ensure that it balance the need to comply with state law with the need to maintain a safe working environment.