The Act includes specific employment protections for qualified patients. It states that an employer may not discriminate against a person in hiring, termination or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the persons status as a qualified patient or a qualified patients positive drug test for cannabis components or metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment. This protection has an exception if the failure to discriminate would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations[.] Of course, if an employee used, possessed, or was impaired by marijuana on the job, under many employer substance abuse policies, drug testing would be unnecessary prior to the imposition of discipline. The consequences of the law for Minnesota employers seeking to maintain a drug-free workplace can be onerous. Arguably, an applicant who is a qualified patient could not be rejected for testing positive for marijuana, even if he or she was applying to work in a safety-sensitive position (other than as a driver of a commercial motor vehicle, pilot or other position regulated by federal drug testing law). Solace for employers may be found in the narrow restrictions on the population that can use medical cannabis, and the means by which the drug may be administered. The total number of patients, especially those who are not completely disabled and can work, may remain low for the time being. In fact, some patient advocates are refusing to participate or become enrolled because the act does not allow them to smoke marijuana leaf, although a drug test result cannot distinguish between use from smokingand the use of oil or vapor. Drug testing in Minnesota is governed by the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) which has strict requirements for testing, including the requirement of a compliant written policy and a prohibition on termination of employees who test positive for the first time unless they refuse or fail to attend and complete treatment. The Medical Cannabis Act does not directly amend DATWA, but by de-criminalizing marijuana for qualified individuals under the criminal statutes upon which DATWA is built, it may limit the reach of the drug testing statute with regard to qualified patients under the Act. Employers who drug test in Minnesota should take the opportunity to review and revise their policies to ensure compliance.
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