Cannabis remains illegal under federal law as a Schedule I drug, leaving states to craft their own marijuana-related laws in true patchwork fashion.  By now, most states have enacted at least some form of medical marijuana law.  State officials increasingly understand the benefits of medical marijuana for patients who have qualifying medical conditions.  But acceptance does not necessarily create clarity in the law.  What happens when an employee with a qualifying medical condition seeks reimbursement for medical marijuana through an employer’s workers’ compensation plan?  As with any cannabis-related question, the answer depends on the state in which the claim is made.

For purposes of workers’ compensation claims, a key question is whether medical marijuana use is considered a reasonable and necessary medical treatment.  Some states expressly permit such claims, others flatly deny them, and still others take a middle approach.  In many states, this issue has resulted in extensive litigation.  Minnesota has avoided the need for such litigation by being one of the few states that permit claims for medical cannabis under an employer’s workers’ compensation plan.

In July 2015, the Minnesota Department of Labor and Industry enacted new rules that redefine “illegal substance” to exclude a patient’s use of medical cannabis permitted by Minnesota law.  In other words, since 2015, medical marijuana has been a reimbursable form of medical treatment for workers’ compensation claims within the state.  In no small part, this is due to an increasing medical consensus that certain prior treatment protocols (i.e., long-term treatment plans involving opiate prescriptions) are no longer advocated for as strongly as they once were, particularly for post-injury intractable pain.  In fact, in Minnesota, legislators have determined that long-term treatment with opioid analgesic medication is expressly not the preferred approach for the treatment of workers’ compensation injuries unless certain stringent requirements are met.

It is important to remember that just because an employee has a qualifying medical condition and is registered in Minnesota’s medical marijuana program does not mean he or she will automatically be entitled to workers’ compensation benefits.  As always, claims are reviewed on an individual basis, treatment must be both medically necessary and reasonable, and there may be other disqualifying reasons.  But for employers based in Minnesota, the state has provided a pathway forward for workers’ compensation claims involving treatment by medical cannabis.   As such, employers should process employee claims involving medical marijuana as they do all other workers’ compensation claims.

If you’re an employer with questions regarding employee marijuana use, you’re not alone.  State and local governments are increasingly paving the way for cannabis use at what is generally viewed as a rapid pace. In addition to states where legislatures are acting independently to pass cannabis-related laws, in every election cycle, more marijuana-related issues find their way onto state ballots and more candidates run on platforms that expressly include marijuana reform. After every election cycle it becomes increasingly clear that marijuana is, with some exception, a “winning issue.”  In fact, the majority of states now have some form of either medical or recreational marijuana laws on the books.

For instance, Minnesota has legalized medical marijuana use. The laws governing medical marijuana use prohibit termination of and discrimination against an employee who tests positive for cannabis on a drug test if the employee is a patient enrolled in Minnesota’s cannabis registry program, unless the employee was impaired by the marijuana during employment. Cannabis remains a Schedule I illegal drug under federal law despite legalization efforts here in Minnesota and elsewhere. Because of this, many crucial questions concerning marijuana use remain unanswered, including in the area of workplace accommodations. The answers to these questions depend largely on how state legislatures, including here in Minnesota, have drafted laws regarding marijuana use.  But not all questions have answers, and some parties are looking to the courts.

There are several key cases currently working their way through federal and state courts that may ultimately affect employee rights when it comes to marijuana use, including issues related to employee accommodations in the workplace. One such case, Terry v. United Parcel Services, Inc., asks a federal court in Arizona to consider whether an employer who terminates an employee based on a positive drug test has violated of the Americans with Disabilities Act (“ADA”) where that employee is a registered cardholder of a state-sponsored medical marijuana program and is not impaired while at work.  Under current federal law, the plaintiff in Terry has a tough case to win. While the ADA prohibits discrimination against individuals with recognized disabilities, the ADA does not consider an employee who engages in the illegal use of drugs a qualified individual with a disability. Because marijuana remains illegal under federal law despite its standing under any state law, the court is unlikely to find a violation of the ADA.  However, that doesn’t mean that parties will not continue to push cases like this because, regardless of the eventual ruling in Terry, the intersection between medical marijuana and the ADA is a natural one and is sure to garner increasing attention.  After all, many individuals who are approved for medical marijuana use often suffer from one or more disabilities or conditions recognized under the ADA.

The Terry case serves as a great example of the kind of marijuana-related litigation that will have the potential to greatly affect employer practices nationwide. Over the next several years, expect to see increased attention on these types of issues as we further transition into a country that more fully legalizes cannabis use.

When I prepare a drug and alcohol testing policy for Minnesota clients, they often tell me it is their understanding that although post-accident testing is permitted under Minnesota law, it is prohibited by OSHA. Their perception that post-accident testing is unlawful is based on a 2016 change in OSHA’s reporting and retaliation policies, to prohibit employers from retaliating against employees for reporting work-related illnesses and injuries. In October 2018, OSHA issued a new memo which clearly states that post-accident testing is permissible.

Under this 2016 rule, employers were prohibited from taking retaliatory actions considered extreme, such as termination, in response to an employee’s report of a work-related accident. The 2016 rule also prohibits employers from taking seemingly less extreme retaliatory actions that might dissuade employees from reporting work-related illnesses or injuries. The 2016 rule stated that retaliatory actions could include, but are not limited to:

  • Workplace safety incentive programs;
  • Use of injury reports as a foundation for advancement of discipline decisions; and
  • Drug and alcohol testing following a workplace injury or illness where there is no suspected connection between the work-related incident and drug or alcohol use.

This 2016 rule was interpreted by many employers as meaning that an employer cannot mandate a drug and alcohol test after a work-related accident. Many employers considered the 2016 regulation to be an example of overregulation since it could potentially paralyze an employer’s efforts to ascertain whether drugs or alcohol played a role in a work-related accident.

OSHA Clarifies Its Position

On October 11, 2018, OSHA issued a memo containing a Standard Interpretation which clarifies the current OSHA stance on post-accident drug and alcohol testing. The Standard Interpretation states that despite the Agency’s formal prohibition on employer reprisal, OSHA does not intend to prohibit well-intentioned efforts by employers to reduce work-related injuries.

Post-Accident Drug Testing

In the 2018 Standard Interpretation, OSHA made it clear that post-incident drug testing can promote workplace safety and health. The Standard Interpretation clarifies that post-accident testing which is used to evaluate the root cause of a workplace incident that harmed or could have harmed employees would be permissible if the employer tests all employees whose conduct could have contributed to the incident, not just the employees who report the injuries.

Safety Incentive Programs

In the 2018 clarification OSHA also supported safety incentive programs as a vehicle to foster safety. “Incentive programs can be an important tool to promote workplace safety and health,” the memo stated. OSHA stated that reward or incentive programs that give a prize or bonus at the end of an injury-free month, or evaluate managers based on their department’s lack of injuries, can be effective tools to reduce the number of work-related injuries. The memo stated that “. . . if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer . . . as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.”

In the Standard Interpretation, OSHA explains that an employer can avoid an inadvertent deterrent effect of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates. For example, an inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

  • An incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • A training program that covers reporting for all employees which, among other things, emphasizes the employer’s non-retaliation policy; and
  • A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
Conclusion

The Standard Interpretation expressly states that it supersedes any previous OSHA interpretative documents that could be construed as inconsistent with the interpretative position stated on October 11. Employers can now feel more confident that they can conduct post-injury or accident testing of employees involved in a work-related accident, provided the testing is not isolated to the employees who report the injuries. Hopefully this clarification will cause reluctant employers to return to post-accident drug and alcohol testing.

Navigating the Minnesota Drug and Alcohol Testing in the Workplace Act (MDATWA) can be a complicated task for employers who want to maintain a drug-free workplace. This is especially true for those operating in safety-sensitive industries like transportation, where such testing is often mandated by state and federal regulations. In light of the country’s continuing opioid crisis and trend towards marijuana de-criminalization and legalization for medical use, employers are asking more questions than ever about their drug testing policies. Unfortunately for employees doing business in Minnesota, the MDATWA is one of the country’s more onerous drug testing laws.

About the Law

The MDATWA governs when and how employers can administer drug tests to both job applicants and current employees. The law has three major components in addition to a host of other reliability, fairness, and privacy safeguards. First, an employer must have a written drug testing policy with specified contents and notice. Second, an employer may only administer drug tests in five categories under specified circumstances: job applicant testing, routine physical examination testing, random testing, reasonable suspicion testing, and treatment program testing. Third, an employer may not discipline or discharge an employee for a positive test result unless it first provides an opportunity to complete a rehabilitation program.

Most claims arise under the MDATWA when an employer runs afoul of one or more of the above three areas. For example, many employers draft excellent drug testing policies, only to forget that they must provide repeated written notice of the policy to employees and job applicants before testing, upon hire, and during transfer from unaffected positions, as well as by posting notice on their premises, and making copies available for inspection. Furthermore, the circumstances under which employers may administer drug tests are quite limited, including the timing, frequency, and grounds for cause. Finally, some employers rush to action upon receipt of a positive result, either without understanding their own right to control the terms of the required rehabilitation opportunity, or without sufficient employee interaction about the terms.

MDATWA and Marijuana

Recently, many employers have been asking questions about the relationship of the MDATWA with Minnesota’s Medical Cannabis Therapeutic Research Act (MCTRA), which allows qualifying patients to use and possess marijuana for medical purposes. The MCTRA contains a provision expressly prohibiting an employer from discriminating against a qualifying patient based on a positive drug test result, unless the failure to do so would otherwise violate federal law. Following a positive result, the MDATWA requires employers to provide job applicants and employees with written notice of their right to explain the result. The MCTRA, in turn, provides that an employee may present verification of their status as a qualifying patient as a satisfactory explanation of the positive result.

The MDATWA can be a minefield for employers. Violations permit employees to recover damages for lost wages, reinstatement, emotional distress, and punitive damages, as well as attorneys’ fees for intentional violations. From drafting a compliant drug testing policy, to administering drug tests, and implementing rehabilitation programs, employers should consult with their attorneys about their drug testing practices to minimize their exposure to claims under the MDATWA.