On May 29, 2014, Minnesota signed into law Minnesota’s medical cannabis bill (SF No. 2470), which passed the House 89-to-40 and the Senate 46-to-16. The law establishes a registry program for Minnesota residents to legally use medical cannabis for a qualifying medical condition. According to the new law, medical cannabis may only be delivered in limited forms: liquid, pills, vapor with the use of liquid or oil (but which does not require the use of dried leaves or plant form), or any other method, excluding smoking. While the bill is now law, the sale of medical cannabis won’t happen for several months; once it does it will have impact on employers.
The implementation of the medical cannabis registry program is currently underway and the planned timeline aims to have medical cannabis available for those on the registry by July 1, 2015. Before the July 1, 2015 deadline, the new law requires the Commissioner of the Minnesota Department of Health to register two in-state manufacturers for the production of all medical cannabis within the state of Minnesota, establish a patient registry program, and develop a patient application for enrollment into the registry program.
The Request for Applications (RFA) to become a state-certified medical cannabis manufacturer was released on September 5, 2014. Potential manufacturers have until October 3, 2014, to submit their applications. By November 1, 2014, the Commissioner is required to inform the public and the medical cannabis task force whether or not the state will be able to register a manufacturer by the December 1, 2014, deadline. Assuming the Commissioner is able to register the manufacturers by December 1, medical cannabis products will become available to patients who are on the state registry by July 1, 2015. However, there is a provision in the law for one six-month extension of the December 1 and July 1 deadlines if a manufacturer cannot be registered or if the registered manufacturer cannot provide medical cannabis by the deadline.
Once the medical cannabis registry program becomes fully operational, it will have some significant implications for employers. The law currently reads,
Unless a failure to do so would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, 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 either of the following:
- the person’s status as a patient enrolled in the registry program under sections 152.22 to 152.37; or
- a patient’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.
This means that an employer may not decide whether or not to hire an applicant based solely on the fact that the applicant is on the registry or because he or she tested positive for cannabis as part of a drug test. If an applicant or employee is part of the medical cannabis registry and tests positive for cannabis components or metabolites, he or she may present verification of enrollment in the patient registry as part of his or her explanation under section 181.953, subdivision 6. While an employer may not discriminate against a person in the hiring, termination, or any other term of employment, this law does not alter an employer’s ability to terminate an employee’s employment if he or she uses, possesss, or is impaired by medical cannabis while on the premises of his or her place of employment. Employers still need to comply with Minnesota’s Drug and Alcohol Testing in the Workplace Act.
Jody Ward-Rannow is an associate in the Minneapolis office of Ogletree Deakins.
Cynthia A. Bremer is a shareholder in the Minneapolis office of Ogletree Deakins.
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