Category Archives: Drug and Alcohol Testing

Do Lawful Consumable Product Statutes Protect The Off-Duty Use of Marijuana?

No – the Colorado Supreme Court recently held that because medical marijuana remains illegal under federal law, an employee’s off-duty use of prescribed medical marijuana was not protected by the state’s lawful activity statute.

In Coats v. Dish Network, the employer fired an employee who tested positive for marijuana after using medical marijuana during non-work hours.  The medical marijuana used by the employee was lawfully prescribed under Colorado law, which also recently legalized the recreational use of marijuana.  2015 CO 44 (Colo. June 15, 2015).  The employee sued and alleged that the termination violated the Colorado lawful activity statute.  Unless limited exceptions apply, the Colorado lawful activity statute prohibits employers from terminating “the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.”  See Colo. Rev. Stat. 24-34-402.5.

The Colorado Supreme Court held that the lawful activity statute did not protect the employee’s lawful use of medical marijuana because even though it was legal under state law, it remained illegal under federal law.  The court held that the term “lawful” in the statute only applied to “those activities that are lawful under both state and federal law.”  Although not necessarily binding in other states, the Colorado Supreme Court’s decision is persuasive precedent that suggests that off-duty marijuana use may not be protected under many states’ lawful consumable products statutes.

Like Colorado, Minnesota has a lawful consumable product statute, which generally allows employees to use “lawful” products during non-work hours.  See Minn. Stat. §181.938.  Under the reasoning of Coats, this statute likely does not protect off-duty marijuana use.  Therefore, if an employee tests positive for marijuana because the employee used recreational marijuana in a state where recreational marijuana was legal (such as Colorado or Washington), the lawful consumable products act would arguably not protect that employee.

Employers need to be careful, however, because some states explicitly protect the off-duty use of medical marijuana.  For example, under Minnesota’s new medical marijuana law, which will take effect on July 1, 2015, an employer generally cannot discipline an employee for the lawful, off-duty use of medical marijuana.  If this law had been in effect in Colorado, the Coats case likely would have turned out differently.

Takeaway:  The Coats case suggests that off-duty recreational use of marijuana will not be protected by Minnesota’s lawful consumable products statute even if the use occurs in a state where it is legal.  On the other hand, Minnesota law generally prohibits employers from disciplining employees for the lawful use of medical marijuana, so employers will still need to exercise caution when disciplining employees for marijuana use.

Employment Protections for Medical Marijuana

On May 29, 2014, Governor Dayton signed a law to implement a medical marijuana program in Minnesota.  See S.F. 2470.  In general, the law authorizes the Minnesota Department of Health to create a patient registry for the use of medical marijuana for certain specified conditions (such as cancer, terminal illness, glaucoma, HIV/AIDS, etc…).  The program will not go into effect until July 1, 2015.

The medical marijuana law includes certain employment-related legal protections for patients enrolled in the new program.  Specifically, the law provides that:

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:

(1) the person’s status as a patient enrolled in the registry program under sections 152.22 to 152.37; or

(2) 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.

The law further provides that “[a]n employee who is required to undergo employer drug testing pursuant to section 181.953 may present verification of enrollment in the patient registry as part of the employee’s explanation under section 181.953, subdivision 6.”  These provisions of the law will be codified at Minn. Stat. § 152.32, subd. 3(c–d).

Takeaway:  Before the medical marijuana program goes into effect in 2015, employers will need to familiarize themselves with the new legal protections for employees enrolled in the program.  It’s important to note, however, that the law includes exceptions for compliance with federal laws, regulations, or licensing requirements.  In addition, the new law does not protect an employee’s use, possession, or impairment by medical marijuana “on the premises of the place of employment or during the hours of employment.”

Can an Employer Terminate an Employee For Testing Positive on a Drug Test?

It depends – Minnesota’s drug and alcohol testing statute imposes a number of conditions on an employer’s ability to terminate an employee for a positive drug or alcohol test.  Here’s what employers need to know about the statute’s requirements:

  • General Requirements for Drug Testing:  Minnesota law permits an employer to administer drug tests of employees only pursuant to a written policy that complies with certain statutory requirements.  Among other things, the statute requires that when an employee tests positive for drug or alcohol use:  (i) the result must be confirmed by a “confirmatory test;” (ii) the employee must be given written notice of the right to explain the positive test, for example, by identifying any medications the employee is taking or providing other information concerning the reliability of the test; and (iii) the employee may request a “confirmatory retest” of the original sample at the employee’s own expense.
  • First Time Positive Test By a Current Employee:  If the positive test result was the first time that the employee tested positive, the law requires that, before terminating the employee, the employer must generally provide the employee with an opportunity to participate in counseling or treatment, whichever is more appropriate, as determined by a certified chemical use counselor or a physician trained in the diagnosis and treatment of chemical dependency.  The employee may be terminated only if he or she refuses to participate in counseling or treatment or if he or she fails to complete the program successfully.  This rule does not apply if the employee has tested positive for the employer before.
  • Health and Safety Exception:  If an employer believes that it is reasonably necessary to protect the health or safety of the employee, co-employees, or the public, an employer may temporarily suspend an employee who tests positive or transfer him or her to another position at the same rate of pay pending the outcome of the confirmatory test and, if requested, the confirmatory retest.  If the employee is suspended without pay, and the confirmatory test or retest comes back negative, the employee must be reinstated with back pay.
  • Withdrawal of Job Offer for Job Applicants:  If a job applicant receives a job offer contingent on passing a drug and alcohol test, the employer must verify a positive test result with a confirmatory test before withdrawing the job offer.  Unlike current employees, however, the employer does not need to offer the job applicant an opportunity to participate in counseling or treatment before withdrawing the job offer.

See generally Minn. Stat. § 181.953.

Takeaway:  When an employee or job applicant tests positive on a drug and alcohol test, employers should make sure that they have complied with all statutory requirements before terminating the employee or withdrawing a job offer.

What is the Statute of Limitations for Minnesota’s Drug Testing Statute?

The Minnesota Supreme Court recently determined that claims alleging wrongful termination under the Minnesota Drug and Alcohol Testing in the Workplace statute are subject to a six-year statute of limitations in Sipe v. STS Manufacturing, Inc., No. A11-2082 (Minn. July 31, 2013).  Mr. Sipe had alleged that he was improperly terminated for a first positive drug test without being offered an opportunity for rehabilitation or counseling pursuant to Minn. Stat. § 181.953, subd. 10.  He did not commence his lawsuit until nearly three years later.

The Minnesota Court of Appeals previously held that Mr. Sipe’s claim was subject to a two-year statute of limitations under Minn. Stat. § 541.07(1) and dismissed his lawsuit.  The Court of Appeals determined that Mr. Sipe’s wrongful discharge claim constituted an “other tort resulting in personal injury” bringing it within the two-year limitations period.  The Minnesota Supreme Court, however, held that such “other torts” were limited to common law claims and did not include statutory claims, such as that created by the Minnesota drug testing law.  As a result, the Court held that Mr. Sipe’s claim was subject to the six-year limitations period applicable to “liability created by statute.”  Minn. Stat. § 541.05, subd. 1(2).

Takeaway:  Prior to taking a discharge action, Minnesota employers should be mindful of their statutory obligations, including the obligation to offer rehabilitation or counseling to employees who test positive for drugs for the first time.  If an employer instead fires the employee without making such an offer, the employee has a full six years to bring a claim under Minnesota’s drug testing law.

When is Drug and Alcohol Testing Permissible Under Minnesota Law?

In Minnesota, employers may conduct drug and alcohol testing only if they follow certain rules.  The Minnesota Drug and Alcohol Testing in the Workplace Act says that testing may only be done:

  • For job applicants, but only where a conditional offer has been made and testing is required for all applicants for that position;
  • As part of an annual routine physical examination;
  • On a random basis, but only if the employee is in a safety sensitive position or is a professional athlete and the testing is conducted in accordance with a collective bargaining agreement;
  • Where an employer has ”reasonable suspicion” that the employee is under the influence; has violated written work rules regarding drugs or alcohol, has caused a personal injury or caused a work related accident, or was involved in operating machinery involved in a work related accident; and
  • Where the employee is involved in chemical dependency treatment after being referred by the employer or under an employee benefit plan.

See Minn. Stat. § 181.951.

To conduct testing, an employer must have a written policy that describes who is subject to testing, the circumstances under which testing will be done, the right of any employee or applicant to refuse testing and the consequences, any adverse action that may be taken on test results, the right of employees and applicants to explain positive results and the right to request and pay for confirmatory retests.  See Minn. Stat. § 181.952.

The statute contains certain notice and posting requirements.  Employees have the right to request copies of test results, to have confirmatory retests at the employee’s own expense and to explain test results that may be the result of prescription medications or other information that is relevant to the reliability of a positive test result.  Employers may not discharge employees on a first positive test result unless the employee has first been given the chance to participate in a counseling or rehabilitation program and the employee has either refused to participate or failed to successfully complete the program.  With limited exceptions, test results are to be kept confidential.  See Minn. Stat. § 181.953; see also Minn. Stat. § 181.954.

Takeaway:  Any employer conducting drug or alcohol testing in Minnesota must have a written policy and carefully follow the rules related to such testing.