The Minnesota legislature has passed a bill permitting recreational marijuana use by adults, making Minnesota the 23rd state to legalize cannabis. Governor Walz is expected to sign the bill, which establishes a complex regulatory framework for the newly legalized product. Among many other statutes, the new law contains a number of provisions that will affect employers doing business in Minnesota.
The new law maintains the state’s medical marijuana program and continues to provide employment protections for a patient enrolled in the registry program. As previously discussed here unless a failure to do so would violate federal or state law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, any term or condition of employment, or otherwise penalize a person, if the discrimination is based on either of the following:
- The person’s status as a patient enrolled in the registry program; or
- A patient’s positive drug test for cannabis components or metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.
The law permits an employee who is a patient to present the employee’s registry verification to explain a positive drug test.
Use of Off-Duty Lawful Consumable Products
Minnesota law already prohibits an employer from discriminating against an applicant or employee because the employee has engaged in the use or enjoyment of lawful consumable products if the use or enjoyment takes place off the employer’s premises during nonworking hours unless the restriction:
- Relates to a bona fide occupational requirement and is reasonably related to employment activities or responsibilities of a particular employee or group of employees; or
- Is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities owed by the employee to the employer.
The new law adds cannabis to the state’s definition of “lawful consumable product.” Thus, an employer may not fire, discipline, or refuse to hire an individual for his or her use or enjoyment of cannabis (or products containing cannabis) outside of work during nonworking hours.
Drug Testing in the Workplace
Minnesota’s Drug and Alcohol Testing in the Workplace Act (“DATWA”) has historically permitted employers to test for cannabis as a substance considered a “drug” under the state’s schedule of controlled substances. The new law amends DATWA in several ways. First, it imposes a general prohibition on testing job applicants for cannabis or otherwise using cannabis test results to make hiring decisions. However, existing testing requirements would continue to apply to (1) a safety-sensitive position; (2) a peace officer; (3) a firefighter; (4) a position working directly with children, vulnerable adults, or healthcare patients; (5) a position requiring a commercial driver’s license or requiring testing for motor vehicle operation; (6) a federally funded grant position; or (7) any other position where state or federal law require testing.
Second, since the new law no longer treats cannabis as an “illegal drug,” a test for cannabis is now considered separate from a test for other prohibited drugs. The practical effect of this is that employers may not, for instance, conduct a random test for cannabis if the employee is not employed in a safety-sensitive position, and reasonable suspicion testing and treatment program testing (for cannabis) may be conducted under circumstances that would generally permit a drug or alcohol test.
DATWA’s requirements that employees be issued written notice of the employer’s drug-testing policy remain unchanged. Therefore, employers should plan on revising any existing drug-testing policies to conform to the new law.
Workplace Cannabis Policies
Despite the enactment of laws permitting the recreational use of cannabis for adults, employers are not required to permit or accommodate cannabis use, possession, sale, transfer, or impairment while at work, on work property, or operating the employer’s vehicle, machinery, or equipment. An employer may create written policies addressing such prohibitions.
Employers with questions about the application of this new statute and the appropriate immediate actions to address it should consult a Larkin Hoffman attorney.