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New medical marijuana law may be strongest in nation

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in Employment Law,Human Resources

On May 29, Gov. Mark Dayton signed Minnesota’s new medical mari­­juana bill into law. Unlike similar laws in other states, this law specifically amends a state law—the Minne­­sota Con­­trolled Substance Act (MN-CSA)—to carve out exemptions for those permitted to use medical marijuana.

The federal Controlled Substances Act (US-CSA) contains no such exception and does not recognize any legitimate medical uses for marijuana.

The move may cloud workplace drug-testing procedures for some Minnesota employers. Drug testing performed to comply with federal laws—such as for drivers engaged in interstate commerce—would not be affected. However, drug testing performed under the state’s Drug and Alcohol Testing in the Workplace Act (DATWA) may.

DATWA has traditionally permitted employers to take adverse action against employees who test positive for marijuana or other drugs classified as controlled substances under MN-CSA. The new Medical Mari­­juana Law (MML) amends the MN-CSA to decriminalize medical marijuana use.

The MML protects those suffering from a number of medical conditions. Once a health care professional certifies the condition, the person may be placed on a state registry. Registrants may take medical marijuana through several means, but not by smoking the plant’s dried portions.

Employers are barred from discriminating against employees because they are on the state registry or have a positive drug test unless the em­­ployee used or was impaired by the drug on the employer’s premises. Since most workplace drug tests merely test for cannabis in the employee’s blood, that part of the law may be problematic.

Employees may use the fact that their name appears on the MML registry as a defense to positive drug tests. Employers would have to prove the employee used medical marijuana or other cannabis products on the job. The law doesn’t define impairment, making it harder for employers to prove it.

Note: While other states’ medical marijuana laws have carved out clear safe harbors for employer drug-­testing programs, the Minnesota law has not. Consult with your attorney to determine what drug-testing policies you should use.

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