Minnesota Cannabis Testing Impacts

Minnesota Gov. Tim Walz has signed a bill to legalize recreational marijuana for people over the age of 21, making Minnesota the 23rd state to legalize the substance for adults. The full law can be found here and goes into effect on August 1, 2023.

The new law amends Minnesota’s Consumable Products Act (CPA), which prohibits employers from disciplining or discharging employees (or refusing to hire applicants) who use lawful consumable products outside of work. Effective August 1, 2023, the term lawful consumable products will specifically include cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products, as such terms are defined by Minnesota law. The law goes even further to explicitly provide that the aforementioned products are considered lawful consumable products under Minnesota law regardless of whether federal or other state law considers cannabis use, possession, impairment, sale, or transfer to be unlawful.

More specifically with respect to employers, the new law prohibits:

1. Refusing to hire an applicant because they engage in the use of lawful consumable products (including cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products) as long as said use/enjoyment occurs off the premises of the employer and during nonworking hours.
2. Disciplining or discharging an employee because they engage in the use of lawful consumable products (including cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products) as long as said use/enjoyment occurs off the premises of the employer and during nonworking hours.
3. Requesting or requiring an applicant to be tested for cannabis solely for the purpose of determining the presence/absence of cannabis as a condition of employment unless otherwise required by state or federal law.
4. Refusing to hire an applicant solely because they submitted to an authorized cannabis test or drug and alcohol test and returned a positive result indicating the presence of cannabis, unless otherwise required by state or federal law.
5. Requiring or requesting an applicant or employee to undergo cannabis testing on an arbitrary or capricious basis.However, the new law specifically allows an employer to:

1. Discipline, discharge, or take adverse action against an employee for the use, possession, impairment, sale, or transfer of cannabis flower, cannabis product, lower-potency hemp edible, or hemp-derived consumer product while the individual is working, on the employer’s premises, or operating the employer’s vehicle, machinery, or equipment if:
   1. As a result of said consumption, the individual does not possess clearness of intellect and control of self that they would otherwise have.
   2. A cannabis test returns a positive result following a confirmatory test.
   3. Conditions provided in the employer’s written work rules are met, provided that the rules are in a policy that meets the minimum information required by state law.
   4. Authorized or required under state or federal law/regulations, or if a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or regulation.

Moreover, employers may continue pre-employment and routine physical examination cannabis testing for safety-sensitive positions (i.e., a job in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person) as well as positions requiring face-to-face care, training, education, supervision, counseling, consultation or medical assistance to: children, vulnerable adults, or patients who receive health care services from a provider for the treatment, examination, or emergency care of a medical, psychiatric, or mental condition. There are other similar exceptions such as when federally required.

Given the intricacies of this new law, employers should consult with counsel about updating their drug testing policies to comply with the changes.

The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice.  The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage makes no assurances regarding the accuracy, completeness, or utility of the following information. Regulatory developments and impacts are continuing to evolve in this area.