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Pot Testing Up in Smoke?

Pot Testing Up in Smoke?

With broader use of marijuana, will employers need to abandon its prohibition?

The Associated Press recently reported that companies are dropping marijuana testing because they are “desperate to fill jobs.” With a Minnesota unemployment rate that’s fallen to 3.2 percent, does it make sense for local employers to lose potential employees who can’t pass a drug screen for marijuana?

V. John Ella, who has practiced employment law in Minnesota for more than 20 years, anticipates that some Minnesota employers will abandon pot testing. Among his business clients, he says, “I have had conversations with HR about that trend.”

For safety reasons, certain employers are required to administer drug tests to potential employees, such as drivers. “They have to test for drugs and test for marijuana, they have no choice,” says Ella, an attorney with Trepanier MacGillis Battina in Minneapolis.

However, he says, other companies have discretion. In the coming years, he says, marijuana is increasingly likely to be dropped from the list of drugs tested in Minnesota, as well as elsewhere, as it continues to be legalized on a state level.

The use of medical marijuana is the subject of a major employment law case being litigated locally. Chris Sonterre is suing Costco in U.S. District Court. Sonterre, who had previously worked for Costco, applied to rejoin the company in 2017 and was offered a job “contingent upon a pre-employment drug test,” says his attorney, Shawn Wanta of Baillon Thome Jozwiak & Wanta in Minneapolis.

Sonterre, who sustained a traumatic brain injury while working in the North Dakota oil fields, wanted to work in front-end assistance at a Costco facility in the Twin Cities. Wanta says that Sonterre’s doctor had prescribed medical marijuana to treat PTSD.

When he arrived for his test, Sonterre produced documentation that he was enrolled in the Minnesota Medical Cannabis Program. He tested positive for cannabis and didn’t get the job. “Sonterre was told that Costco’s policy is to deny employment to anyone who tests positive for cannabis without exception,” Wanta says.

Sonterre argues Costco violated the Minnesota statutes protecting medical marijuana users as well as the Minnesota Human Rights Act.