We have a drug testing policy for non-DOT employees. Can I still test for marijuana now that Minnesota has legalized certain forms of cannabis consumption?

Laws regarding medical marijuana usage have been spreading like fire around the country due to successful lobbying efforts. Delaware, Arizona, Maryland, New York, Illinois, Minnesota...all 23 states have legalized some form of marijuana possession and/or use.

Minnesota's law, however, is in select company in that it affirmatively prohibits workplace discrimination against employees and applicants for their lawful use of marijuana (which in Minnesota is of the non-smoking, medicinal purposes variety). Specifically, Minnesota Statute §152.32 provides that no company may take an adverse action because:

  1. Of the person's status as a patient enrolled in the registry program; or
  2. A person's 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.

The problem is No. 2--what does "impairment" mean? Is impairment the same as a positive test? We have no guidance from the government and the law is too new for the courts to have become involved. On its face though, it is foreseeable that impairment creates a higher standard than the minimum level required for a positive test. Until this is sorted out, employers should be very cautious when penalizing an employee or applicant for testing positive for cannabis where that person is a legally authorized user (which the employer will have the opportunity to verify).

 
 
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