Dale Deitchler, national expert on workplace substance abuse and drug and alcohol testing programs

What businesses need to know about Minnesota's medical marijuana law

A national expert on workplace substance abuse provides insight into what this means for employers

By Lexy Immerman

Minnesota’s new medical marijuana law, which will be in effect on July 1, permits limited use and possession of medical marijuana by certain residents.

Dale Deitchler, shareholder in the Minneapolis office of Littler Mendelson (a labor and employment firm representing management), and a national expert on workplace substance abuse and drug and alcohol testing programs, provides insight into what small and midsize businesses need to know about the new law and what it could mean for their workplace.

“Nationwide it’s a complex issue, but so far the cases that have come out are employer favorable,” Deitchler says. “Of all these different statutes nationwide, we probably have the most robust medical marijuana statue — from an employment law perspective.”

Essentially, since medical marijuana is illegal under federal law, but will be permitted under state law, businesses need to decide which law they will adhere to, and to what degree. On one end of the spectrum, businesses can say that as marijuana is illegal under federal law, it is not a viable excuse for a positive drug test, despite what impairments the employee may have that warrant their prescription for the drug. On the opposite end of the spectrum, there will be companies that will allow permitted use.

The first step in a business deciding which approach to take, according to Deitchler, would be to “decide what their risk tolerance is, and assess the nature of their business. At a minimum you need to look at the definition of an illegal drug in your policies and see if it includes drugs that are made illegal under federal law.”  

Businesses with safety-sensitive work or on-site dangers will need to take particular care with this issue because of the side effects of the drug and how they can impact sensory perception and awareness, and will likely decide that they will reject registry verification as an excuse or explanation for positive test results.

“If they’re challenged, unless they can show impairment or on-duty use or possession, they will be a guinea pig, they will be a test case,” Deitchler says. “Every business, but small to midsize businesses especially, need to decide what their risk tolerance is, do they have safety sensitive operations and if so, it’s more likely that they would lean toward an approach that would rely on the federal illegality of marijuana.”

“Essentially, you’ve got to look at your policies to make sure they’re consistent with the approach that you use,” Deitchler says.