Impact of North Dakota’s New Medical Marijuana Law on Employers

The North Dakota Compassionate Care Act is the newly passed medical marijuana law in North Dakota, which was approved by voters in the 2016 election.

This new law allows individuals with certain “debilitating medical conditions” to use medical marijuana to treat those conditions. Included in the list of “debilitating medical conditions” are cancer and its treatments, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), decompensated cirrhosis (Hepatitis C), amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease), post-traumatic stress disorder (PTSD), agitation of Alzheimer’s disease, dementia, or the treatment of these conditions, Crohn’s disease or Fibromyalgia, spinal stenosis or chronic back pain including neuropathy or damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, glaucoma, and epilepsy. In addition, individuals suffering from a chronic or debilitating disease medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe debilitating pain that has not responded to previously prescribed medication or surgical measures for more than three months or for which other treatment options produced serious side effects; intractable nausea; seizures; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis and/or any other medical condition or its treatment added by the North Dakota Department of Health” may legally use medical marijuana.

The new law goes into effect December 8, 2016.

The impact on employers?

Under the new law, North Dakota employers are not required to accommodate any “on-site medical use of marijuana” in any place of employment. However, the law does not address whether employers are required to extend reasonable accommodations to medical-marijuana-using applicants or employees who happen to have the drug in their system while on duty at work or submitting to a pre-hire drug test. It is recommended that employers develop a plan to handle these situations and then enforce that plan consistently.

In addition, the law also does not address the use of drug testing (pre-employment, safety-sensitive, or reasonable suspicion) on an employee who uses medical marijuana. Current drug tests only flag whether THC (the active ingredient in marijuana) is present in the individual’s system and does not determine the level of a tested individual’s impairment. This means that an individual can test positive for marijuana without being “high.” It is recommended that employers train frontline supervisors and managers will need to be more vigilant about documenting independent indications of impairment in the workplace such as unusual sleepiness, slowed perception and motor skills, and red eyes.