While yet another non-wage and hour topic, certainly it is one that everyone in Minnesota is talking about, so how can I not write about it? In the words of our very own Bob Dylan…the times, they are a-changin’! Effective August 1, 2023, cannabis (marijuana), will be a lawful consumable product for all (not just medical marijuana). You can find the law here. Notably, what many employers do not know, is that Minnesota has a Lawful Consumable Product Act that prohibits employers from disallowing employees to consume lawful products outside of work hours. While it was intended for alcohol and nicotine back in the day, it is now certainly inclusive of cannabis.
Under the new law, employers are prohibited from refusing to hire a job applicant or discharge or discipline an employee who uses cannabis outside of work. Employers can still prohibit the use, impairment, or possession of cannabis during work hours, while on-site, or when operating company vehicles, machinery, or equipment. Employers may establish written work rules regarding cannabis (i.e., add this to your zero-tolerance policy) and may take disciplinary action against employees who violate these policies.
The legalization of cannabis also impacts Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA), which is already one of the most employee-friendly in the nation. Cannabis is no longer included in the definition of “drug” under DATWA, and drug and alcohol testing does not include cannabis testing, unless stated otherwise. Thus, if you test, you will need to update your drug and alcohol testing policy. When it comes to pre-employment drug testing, employers are prohibited from making cannabis testing a condition of employment, unless state or federal law mandates it. Additionally, employers cannot reject job applicants solely based on positive cannabis test results, unless such action is required by state or federal law.
However, employers with a state-compliant drug and alcohol testing policy (I say this because I’ve seen plenty in handbooks that are not compliant) can request cannabis testing if they have a reasonable suspicion that the employee is under the influence of drugs and alcohol, has violated the employer’s written work rules around cannabis, has injured themselves or another employee, or has caused a work-related accident or was operating or helping to operate vehicles, machinery, and equipment involved in a work-related accident.
What about random testing? Employers may require employees to undergo random cannabis testing if they are employed in safety-sensitive positions (defined as jobs where “impairment caused by cannabis usage would threaten the health and safety of any individual”).
In certain positions, cannabis and its metabolites are considered a drug and are subject to the drug and alcohol testing provisions in Minn. Stat. § 181.950 – 181.957. These positions include:
- Safety-sensitive positions;
- Peace officers;
- Positions requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to children, vulnerable adults, or patients receiving healthcare services;
- Positions requiring a commercial driver’s license or operating a motor vehicle for which state or federal law mandates drug or alcohol testing;
- Employment funded by a federal grant; or
- Any other position for which state or federal law requires testing of a job applicant or employee for cannabis.
Parties involved in a collective bargaining agreement may agree upon a cannabis testing policy without specific limitations or restrictions, so long as it meets or exceeds the minimum standards and requirements for employee protection outlined in Minn. Stat. § 181.950 – 181.954. Existing collective bargaining agreements that already provide employee protections related to cannabis testing will remain in effect, as long as those protections exceed the minimum standards and requirements outlined in Minn. Stat. § 181.950 – 181.954.
Employee and job applicant protections provided under these new DATWA amendments do not apply to certain employees and job applicants. Exclusions apply when the nature of the work being performed requires those employees and job applicants to undergo cannabis testing due to specific circumstances where:
- Federal regulations preempt state regulations regarding cannabis testing for those employees and job applicants;
- Federal regulations or requirements are necessary for operating facilities under federal regulation;
- Cannabis testing is conducted for security, safety, or protection of sensitive or proprietary data; or
- State agency rules adopt federal regulations applicable to the interstate component of a federally regulated industry, and the adoption of those rules is for the purpose of conforming the non-federally regulated intrastate component of the industry to identical regulation.
What’s the end result? Employers who do not need to test for cannabis by law, may want to consider whether you wish to continue given the Minnesota Lawful Consumable Products Act, the potential for numerous positive tests for those otherwise not “impaired” based on testing that is not as reliable as say blood alcohol levels, and the fact that it will be hard to prove consumption at work unless actually observed. Recall, you can always discipline or terminate an employee for poor performance, for your reasonably believing they are under the influence, or attendance. None of those need to be supported by a drug test.