Medical Marijuana, Mask Mandates and More

Status of Federal Mask Mandate. On May 13, 2021, the Centers for Disease Control and Prevention (CDC) issued updated recommendations directing that fully vaccinated individuals (defined as persons who are two weeks past their final COVID-19 vaccination), “no longer need to wear a mask or physically distance in any setting,” except where required by local, business, or workplace rules. Per the CDC, fully vaccinated individuals no longer need to quarantine or undergo testing after known COVID-19 exposure. The CDC does recommend all individuals continue to wear masks while using public transportation. Executive Order 13991, issued by President Biden on January 20, 2021, allows for federal agencies to adapt to the CDC’s guidance and revise their mask policies accordingly.

Status of Minnesota State Mask Mandate. On May 14, 2021, Governor Walz signed Executive Order 21-23, rescinding sections of previous Executive Orders mandating mask-wearing in public settings, while still emphasizing that unvaccinated individuals are strongly encouraged to continue to wear masks until they are fully vaccinated. Executive Order 21-23 also directs individuals to comply with CDC Orders, specifically referencing the CDC’s public transportation guidelines. Importantly, even though the State has lifted mask mandates in most situations, mask mandates may continue to be issued, and enforced, at the city level. Mask mandates are currently still in effect in Duluth, Minneapolis, and Saint Paul; however, Duluth is no longer enforcing the mandate and will soon revisit whether it should be rescinded altogether.

DOL Does A Turn-About In Its Employee v Independent Contractor Analysis – Falling Back to the Economic Realities Test. On May 6, 2021, the U.S. Department of Labor (DOL) rescinded a final rule published on January 7, 2021, clarifying the considerations of the economic realities test, and thus the standards for determining whether a worker is an employee or independent contractor. The final rule would have, if it became effective, essentially narrowed the type of worker which qualifies as an “employee,” thus allowing more workers to be classified as independent contractors. The Biden Administration’s revocation of the rule reinstates the former economic realities test. Under the economic realities test, a court will consider seven factors when determining whether a worker is an employee or an independent contractor:

  1. The extent to which the services rendered are an integral part of the principal’s business.
  2. The permanency of the relationship.
  3. The amount of the alleged contractor’s investment in facilities and equipment.
  4. The nature and degree of control by the principal.
  5. The alleged contractor’s opportunities for profit and loss.
  6. The amount of initiative, judgment, or foresight in open market competition with other required for the success of the claimed independent contractor.
  7. The degree of independent business organization and operation.

It’s important to note that the economic realities test is not a “check all the boxes” test, but rather presents various factors that a court will weight and consider when making a status determination. Because there is not a bright-line rule, it can be difficult to determine with certainty whether some individuals who meet some of the considerations, but not all, will be found to be either an employee or an independent contractor. No one factor is dispositive; the fact that a worker works remotely, completes a 1099 form, or signs an independent contractor agreement does not conclusively determine a worker’s employee or independent contractor status.

Medical Marijuana. On May 17, 2021, the Minnesota House of Representatives and Senate passed HF 2128, an, “Omnibus health and human services policy and finance bill.” One of the more notable provisions of the Bill legalizes smokeable marijuana, in addition to the methods already legalized, which include liquid, pill, vaporized, or edible forms. Individuals authorized to use medical marijuana must have been diagnosed with one of several qualifying conditions—HIV/AIDS, autism, ALS, cancer associated with chronic pain, and glaucoma, for example—and must not use marijuana under conditions prohibited by law—such as while operating a vehicle, on school grounds, or on the grounds of a child-care facility. While an employer may not discriminate against a candidate or employee due to that individual’s use of medical marijuana, employers do not have to allow marijuana use by employees while on the job.

If you have questions regarding the above or any other employment-related concerns, please contact Corie Anderson at (952) 921-4615 or, or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A.