Medical Cannabis in the Workplace: Massie Article Explores the State of the Law

March 20, 2019 – In early February at the Federal Bar Association’s Rising Professionals Symposium in Las Vegas, Ballion Thome Jozwiak & Wanta LLP attorney Dustin Massie presented on matters relating to medical cannabis in the workplace. Massie drew from his experience representing Chris Sonterre, who was enrolled in Minnesota’s Medical Cannabis Registry program due to a traumatic brain injury and was consequently denied employment from Costco Wholesale. Sonterre’s case was among the first medical cannabis cases in Minnesota following the establishment of the Registry in 2017 and raised important questions regarding employee rights and protections when it comes to the relatively new concept of medical cannabis usage.

In the January/February 2019 issue of The Federal Lawyer, Massie explored the rights employees may have when it comes to prescribed medical cannabis usage. The main question under consideration in Minnesota and in many states that have legalized medical cannabis is whether an employer must accommodate the use of medical cannabis when usage is permitted by state law but prohibited under the federal Controlled Substances Act (CSA), which makes it a federal crime to use, possess or distribute marijuana.

Today, roughly 30 states permit the use of medical cannabis under state law. Of those, only ten, including Minnesota, have laws specifically prohibiting discrimination against medical cannabis users. Currently, there is no federal protection for the use of medical cannabis. Absent state law protection, an employee can be legally terminated because of the CSA. However, even if a state law exists, an employee may still be terminated if the state statute does not explicitly provide employment protection to the medical cannabis user. Even still, if a state statute requires employers to accommodate an employee’s use of medical cannabis, must an employer comply despite the CSA?

When considering this question, some courts have concluded that the CSA does not necessarily preempt state law when it comes to medical marijuana use because it is not meant to be applied to employment matters, but rather to the cultivation, possession and distribution of marijuana. In such a case, the specific state law protecting an employee against discrimination based on medical marijuana use would take precedence over a more generalized federal law against use. Yet, even if usage is protected, employers may be able to show that an accommodation poses an undue burden, such as public safety and the existence of federal contracts. As Massie noted, the ultimate decision that may resolve the issue may need to be made by the Supreme Court.

Dustin Massie is an employment attorney with Baillon Thome Jozwiak & Wanta LLP and represents employees who have experienced discrimination, retaliation, harassment and other forms of unlawful treatment in the workplace. Dustin was named a 2018 Up-and-Coming Attorney by Minnesota Lawyer and made the 2017 and 2018 lists of Minnesota Rising Stars.

Baillon Thome Jozwiak & Wanta LLP is committed to protecting the rights of employees who have suffered employment discrimination, harassment and retaliation. For questions about the firm or employment law rights, contact Dustin or any of our attorneys by clicking here.

 

Related blog posts:

Minnesota Medical Marijuana Law Tested in BTJW Case Against Costco

Employee Protections for Medical Cannabis? Massie Talks to Nevada Morning Radio

Massie to Present on Medical Cannabis at 2019 FBA Rising Professionals Symposium