Minnesota Medical Marijuana Law Tested in BTJW Case Against Costco

May 3, 2018 – In 2013, while working in the North Dakota oil fields, Chris Sonterre suffered a traumatic brain injury when an explosion pelted his head and body with metal shrapnel. He suffered extensive burns to his body, as well as brain trauma that left him with post-traumatic stress disorder (PTSD), among other related mental health issues. He and his physician tried multiple options to treat his PTSD with limited success.  Reflecting on these treatment attempts Mr. Sonterre noted, “The PTSD changed me. Some days I couldn’t get out of bed. I was becoming withdrawn and emotionally distant. The treatments we had been trying weren’t working. I felt hopeless.”

In August 2017, the Legislature approved medical marijuana for the treatment of PTSD, thereby extending hope to many Minnesotans who found little benefit from other forms of treatment. Soon after, Mr. Sonterre’s physician prescribed him medical marijuana to treat his PTSD. In accordance with this new law, Mr. Sonterre sought participation in the Minnesota Medical Cannabis Registry Program. Since the acceptance of his application, Mr. Sonterre has treated his PTSD with medical cannabis: “Medical cannabis has made the everyday challenges of living with a traumatic brain injury and PTSD easier for me. I’m a father, and I need to work and provide for my family. Medical cannabis provided for me what years of other treatments couldn’t.”

Minnesota is one of 29 states that permits the use of medical cannabis, and one of nine states that has enacted explicit employment anti-discrimination protections for medical marijuana registry participants. Under Minnesota Statute 152.32(3)(c), “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 on… (2) a patient’s positive test for cannabis component or metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of employment or during the employment hours.”

The challenges Mr. Sonterre has faced while living with a traumatic brain injury encouraged him to be a source of support to others. He volunteers his time with the Minnesota Brian Injury Alliance where he advocates on behalf of individuals with disabilities and educates the public and legislators on the needs of individuals living with brain injuries. Mr. Sonterre’s advocacy has included sharing his story with others at the Twin Cities Brain Injury Support Network. Mr. Sonterre has received many questions from individuals who, like himself, have been prescribed pharmaceuticals to treat their conditions with limited success. “For some people, medical cannabis is the only thing that allows them to live healthy, productive lives,” explained Mr. Sonterre as he recalled detoxing from addictive pharmaceuticals that had side-effects which included lack of concentration, depression, anxiety, and dizziness.

Around August 31, 2017, Mr. Sonterre applied for a position at Costco Wholesale to work in front-end assistance. Having previously worked for Costco and enjoyed the work, Mr. Sonterre had hopes of returning to his previous role. His former managers and colleagues agreed he would be a wonderful fit and welcomed him back to the store. Mr. Sonterre completed the necessary formalities of applying for the position and interviewing with his former manager. Thereafter, he was given a conditional offer of employment contingent upon a pre-employment drug test.

Mr. Sonterre arrived for his test and presented his patient registry number evidencing membership in the Minnesota Medical Cannabis Program. Further, he presented his prescription and explained he had suffered a traumatic brain injury and suffered from PTSD.

Days after completing the pre-employment drug test, Mr. Sonterre was notified that he had tested positive for cannabis and was thus ineligible for employment with Costco. Despite attempts to explain his situation to Costco’s medical review officer (MRO), management and human resources department, Mr. Sonterre was told that Costco’s policy is to deny employment to anyone who tests positive for cannabis without exception. Recalling his experience, Mr. Sonterre noted, “It was a slap in the face. I felt judged by Costco for my use of medical cannabis. I was denied employment for using the one prescription that has allowed me to live a productive life.”

Costco’s blanket policy not only violates the rights of job applicants and employees who are lawfully enrolled in the medical marijuana registry program, but it discriminates against them because of their disabilities in violation of the Minnesota Human Rights Act. “When I told the Education and Outreach Coordinators at my dispensary that Costco denied me employment, they were shocked. They told me Minnesota law is supposed to protect employees from discrimination if they are participants in the cannabis registry program.”

In January 2018, Mr. Sonterre filed a class action lawsuit on against Costco on behalf of himself and similarly situated individuals who were members of the Minnesota Medical Cannabis Registry and were denied employment or terminated by Costco for testing positive for cannabis. The lawsuit, Sonterre et al. v. Costco Wholesale Corporation, 0:18-cv-00245-PJS-FLN (D. Minn.), alleges the company violated Minnesota Statute 152.32 et seq. by discriminating against Mr. Sonterre and others when it failed to hire, rescinded or terminated their employment based on their participation in Minnesota’s cannabis registry program. In addition, the lawsuit asserts that Costco violated the Minnesota Human Rights Act by discriminating against them on the basis of disability for denying them employment and/or terminating them based on their prescribed use of medical marijuana and by failing to accommodate their disabilities.

In filing the lawsuit, Mr. Sonterre noted that people with disabilities who are legally prescribed marijuana should have the same opportunities as anyone else. He added, “I did this to help other people. I didn’t want Costco to continue getting away with this. I wanted to be a voice for other people.”

Shawn Wanta and Dustin Massie of Baillon Thome Jozwiak & Wanta LLP represent Mr. Sonterre and class members in the lawsuit.