On May 6th, Minnesota became the 22nd state, along with the District of Columbia, to legalize the use of medical marijuana. With the legalization movement gaining momentum, employers need to be aware of state medical marijuana laws and the impact of such laws on drug testing policies.

A number of states with medical marijuana legislation now provide workplace protections for legal medical marijuana users, also referred to as qualifying patients. These states have enacted one of two forms of protections for qualifying patients. In Illinois and Connecticut, for instance, the protections are limited to prohibiting negative employment actions based solely on the employee’s status as a qualifying patient. However, it is unclear how these statutes would affect an employer who wants to penalize a qualifying patient for a positive drug test. The second approach, taken by Minnesota, provides broader protections for qualifying patients. Under the Minnesota statute, an employer is prohibited from taking any negative employment action against an employee based on either their status as a qualifying patient or a positive drug test. Both approaches provide exceptions for when a failure to consider an employee’s qualifying patient status would violate state or federal law, or licensing regulations, as well as for employees who used, possessed, or were impaired by medical marijuana on the premises of their place of employment or during the hours of employment.

Due to the difficulty of identifying employees who are legal users of medical marijuana as well as the fast changing status of the law in relation to marijuana, employers should contact Kelley Drye when faced with a positive drug test if that employee is in a state that does not prohibit all use of marijuana.