Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: On May 30, 2023, Gov. Tim Walz signed the final cannabis bill, making Minnesota the 23rd state to legalize recreational marijuana for adults. The law’s employment provisions go into effect Aug. 1, 2023.
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With just days remaining in the legislative session, Minnesota lawmakers remain on track to legalize recreational marijuana, significantly modify the state’s drug-testing law, and limit employers’ rights to prohibit employee off-duty marijuana use and impose discipline for marijuana-related conduct, among other changes to the laws surrounding marijuana use in the state.
On May 16, a conference committee adopted final provisions of a bill that resolve differences between the versions passed by the House and Senate earlier this month—including Article 6, which addresses employer-mandated testing of applicants and employees for cannabis. The committee bill is expected to return to each chamber for a final vote before the legislative session ends on May 22. Governor Tim Walz has indicated he will sign the bill if given the opportunity. If enacted, the employment-related provisions of the bill would go into effect on August 1, 2023.
Although the bill is not yet law, the conference committee’s adoption of the employment-related provisions and the general momentum toward legalization in Minnesota should prompt employers to reevaluate their drug-testing needs and anticipate rule changes. If enacted, the new law would require employers to treat cannabis differently than other drugs and even alcohol—with limited testing opportunities, higher thresholds for discipline, and more nuanced policy requirements.
Drug, alcohol and “cannabis testing”
Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA) currently allows employers to test for “drugs,” which the statute defines by referring to the state’s schedules of controlled substances. When Minnesota lawmakers legalized low-dose hemp-derived THC edibles in 2022, a question arose regarding whether such products, or cannabis more generally, were controlled substances. The recreational marijuana bill specifies that cannabis1 would no longer be a “drug” under DATWA but would allow testing through a new category of “cannabis testing.” If enacted, this change would require employers to decide whether to test individuals for cannabis, reevaluate the circumstances in which they require cannabis testing, and amend their written policies to address new cannabis testing requirements.
Position classes determine which testing rules apply
The proposed bill addresses cannabis testing by first creating two classes of positions—one class that would remain subject to existing DATWA testing requirements and another class that would be subject to the new cannabis testing rules. The distinction arises from draft language that says, for certain positions, cannabis and its metabolites would continue to be considered a “drug” despite the state’s broader legalization.
The first class of positions—which would continue to be subject to existing DATWA requirements and would be exempt from the new cannabis testing rules—includes (1) safety-sensitive positions; (2) peace officers; (3) firefighters; (4) positions requiring face-to-face care, training, education, supervision, counseling, consultation or medical assistance to children, vulnerable adults, or healthcare patients; (5) positions requiring a commercial driver’s license or subject to federal or state motor vehicle regulations requiring testing; (6) employment positions funded by a federal grant; and (7) positions for which state or federal law requires cannabis testing.
“Safety-sensitive position” would continue to mean a job, including any supervisory or management position, in which impairment caused by drug, alcohol or cannabis usage would threaten the health or safety of any person.
The second class of positions would consist of all positions not included in the first (i.e., positions that are not safety-sensitive and do not fall within another exception). For this class, employers would be prohibited from requiring cannabis testing for the sole purpose of determining the presence or absence of cannabis. That means employers could no longer require pre-employment testing or random testing for cannabis. Employers could conduct reasonable suspicion cannabis testing as defined in the statute. Specifically, the employer could continue to require cannabis testing if it reasonably suspects that the employee: (1) is under the influence of drugs or alcohol; (2) violated the employer’s written rules prohibiting the use, possession, sale or transfer of drugs, alcohol, or cannabis during work; (3) has sustained a personal injury or caused another employee to sustain a personal injury; or (4) has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.
Notably, these changes apply only to testing for cannabis. Testing for other substances, including illegal drugs and alcohol, would remain subject to current DATWA requirements.
Limited discipline for policy violations related to cannabis
The position-class distinction described above would apply only to testing and would not limit employers’ ability to discipline workers for other policy violations related to cannabis.
The committee bill permits employers to prohibit employees from using or being impaired by cannabis during work and clarifies the circumstances under which discipline may be imposed. Specifically, the bill states that employers may discipline, discharge, or take other adverse personnel action against an employee for cannabis use, impairment, sale or transfer while the employee is working, while the employee is on the employer’s premises, or while the employee is operating the employer’s vehicle, machinery, or equipment if the employer has enacted work rules regarding cannabis and cannabis testing in a DATWA-compliant policy.
Employers may also impose discipline if, as the result of consuming cannabis, the employee “does not possess the clearness of intellect and control of self that the employee otherwise would have” or the employee has a confirmed positive result on a cannabis test. Employers are also allowed to take action if authorized under state or federal law or regulations, or if failing to do so would cause the employer to lose a federal monetary or licensing-related benefit.
DATWA’s existing “second chance” rule for employees who test positive for the first time would continue to apply to instances where an employee tests positive for cannabis for the first time, regardless of which job classification the employee held.
Clarification on “lawful consumable products” law
The recreational marijuana bill also provides clarity regarding Minnesota’s “lawful consumable products” law, which generally prohibits employers from refusing to hire or disciplining an individual because the individual uses lawful consumable products outside of work. This law traditionally has protected the off-work use of foods, alcohol, and tobacco. Whether existing cannabis products, such as medical cannabis and low-dose hemp-derived THC products, qualify as lawful consumable products has been a gray area in the law.
With the proposed bill, existing law would be amended to explicitly state that cannabis products are lawful consumable products regardless of their status under federal and other state laws. That change would reinforce the policy that employers generally could not take adverse action based on an individual’s decision to consume cannabis outside of work premises and working hours, similar to the current status of alcohol under the law.
There are important exceptions to this law, however, even with the proposed changes. Mirroring the changes to DATWA, employers would retain the ability to prohibit use, possession, and impairment from cannabis products during work hours, on work premises, or while operating the company’s vehicle, machinery, or equipment. Employers could also take action if failing to do so would violate federal or state law or regulations or cause the loss of federal money or licensing-related benefits. Existing exceptions for bona fide occupational requirements and to avoid conflicts of interest would also remain intact.
If Minnesota lawmakers and the governor approve the recreational marijuana bill, employers should be prepared to reconsider if and when they will test employees for cannabis and how they will respond to cannabis use and impairment in the workplace. Employers that want to continue testing for cannabis will need to evaluate which positions are safety-sensitive or subject to other exceptions and determine when testing can occur. Even employers that will no longer test for cannabis should consider adopting and communicating written rules that expressly prohibit use, possession, impairment, sale, and transfer of cannabis on at work and during work hours.
1 The proposed bill frequently refers to “cannabis flower, cannabis products, lower-potency hemp edibles, hemp-derived consumer products, and cannabis metabolites.” For the sake of simplicity, this article refers to these substances collectively as “cannabis.”