On August 1, 2023, Minnesota became the twenty-third state to legalize the recreational use of cannabis for adults over the age of twenty-one.1 With legalization, many employers may be left asking how they should handle their current drug testing policies related to cannabis. Unlike many of the earlier-adopting states, the Minnesota legislature enacted protections for many categories of workers who may choose to use cannabis outside of work. As a result, significant changes have been made to employers’ ability to test for cannabis.
The legislation legalizing recreational cannabis in Minnesota changed the definition of “drug” as the term is used in the Drug and Alcohol Testing in the Workplace Act (“DATWA”) to exclude “marijuana, tetrahydrocannabinols, cannabis flower, cannabis products, lower-potency hemp edibles and hemp-derived consumer products.”2In doing so, the Minnesota legislature took cannabis testing out of the familiar drug testing regime that most employers have worked under for decades.3 However, cannabis remains within the definition of “drug” for employees in safety-sensitive positions,4 peace officers, firefighters, 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,” positions requiring a commercial driver’s license, and positions funded by a federal grant or for which testing is required by another state or federal law.5 Drug and alcohol testing laws for such employees remain unchanged.6
Employers Can No Longer Test Most Job Applicants for Cannabis as a Condition of Employment
Pre-employment drug tests for cannabis are now banned in Minnesota for most types of employees. Previously, employers could test for drugs and alcohol, including cannabis, pursuant to a specific written policy through participating laboratories, and employers may still do so for alcohol and other drugs.7 However, Minnesota employers are now generally no longer allowed to require or request pre-employment cannabis testing as a condition of employment unless testing is otherwise required by state or federal law.8
Even if a job applicant is tested for cannabis, employers are not allowed to refuse to hire the applicant based on a positive test.9
Since 1992, Minnesota employers have been prohibited from refusing to hire job applicants because the applicant lawfully uses or enjoys food, alcoholic or nonalcoholic beverages, or tobacco outside of work hours and off of the employer’s premises under the Lawful Consumable Products Act (LCPA).10 As of August 1, 2023, the scope of non-work activities that an employer cannot take adverse action based on has been expanded to include using “cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products.”11 However, there are exceptions. Perhaps most importantly, an employer can refuse to hire an applicant or discipline or discharge an employee based on the person’s “past or present job performance.”12 For example, if an applicant’s former employer reported that the applicant’s cannabis use causes him to frequently sleep in and forget to set alarms, leading to chronic lateness, a decision not to hire the applicant likely would not violate Minnesota law if the lateness, not the related cannabis use, was the actual cause of the adverse hiring decision. Other exceptions include refusal to comply with chemical dependency treatment or aftercare program conditions and the requirements of other state and federal laws.13
Random Testing of Safety-Sensitive Employees, Reasonable Suspicion Testing, and Treatment Program Testing for Cannabis Remains Legal, but Routine Physical Examination Testing of Employees is Not
Employers may still conduct random testing for safety-sensitive employees and reasonable suspicion testing of employees for cannabis and may continue to test employees for whom cannabis and related compounds remain a “drug” as defined in the DATWA as they would under written policies for drug and alcohol testing.14 An employee in substance use disorder treatment or evaluation ordered or subsidized by an employer may be tested for cannabis during the treatment or evaluation period and up to two years after completion.15 For those employees who are not within the excluded categories, routine physical examination testing must not include cannabis.16 Employees who are not safety-sensitive, even if they are in one of the other excluded categories, cannot be randomly tested for cannabis.17 Despite restrictions on testing, it is important to note that employers may still ban the use of cannabis during work hours and on its premises.18
The LCPA is relevant to current employees as well, as adverse employment action based on off-duty, off-premises consumption of cannabis is prohibited.19 The LCPA specifically states that “cannabis flower, cannabis products, lower-potency hemp edibles and hemp-derived consumer products are lawful consumable products” regardless of any state or federal law to the
contrary.20 This sets up a potential trap for employers who test for cannabis even within the confines of the DATWA, as currently available drug tests for cannabis can detect cannabis used within three days for a one-time user and within more than thirty days for chronic heavy users, without a method for determining how recently the use may have occurred.21 This makes it possible that an employee would test positive for cannabis consumed off-duty and off-premises, after the effects of consumption have worn off,22 leaving the employer in an awkward position between the DATWA and the LCPA.
What Should Employers Do
Employers faced with the new regime of cannabis testing regulations will undoubtedly have questions and concerns. However the most immediate action employers should take is the elimination of cannabis and cannabinoids from their drug and alcohol testing panels, except with respect to safety-sensitive positions, peace officers, firefighters, positions providing “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,” positions requiring a commercial driver’s license, and positions funded by a federal grant or for which testing is required by another state or federal law.23 Employers should also review the wording of their drug and alcohol testing policies to ensure that the new changes to Minnesota law are incorporated properly. Beyond testing, employers should also ensure that all of their drug-use policies are reviewed and updated to reflect the changing cannabis landscape and train employees involved in hiring, firing, and discipline on the new laws surrounding cannabis users.
1 Steve Karnowski, What to Know as Recreational Marijuana Becomes Legal in Minnesota in August, PBS NewsHour (July 29, 2023, 8:47 PM), https://www.pbs.org/newshour/politics/what-to-know-as-recreational-marijuana-becomes-legal-in-minnesota-in-august.
2 Minn. Stat. § 181.950, subd. 4 (2023). “cannabis flower,” “cannabis product,” “lower-potency hemp edibles,” and “hemp-derived consumer products” are defined in Minn. Stat. § 342.01 (2023).
3 1987 Minn. Laws. Ch. 388.
4 A “safety-sensitive position” is “a job, including any supervisory or management position, in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person.” Minn. Stat. § 181.950, subd, 13 (2023).
5 Minn. Stat. § 181.951, subd. 9 (2023).
6 Id.
7 Minn. Stat. § 181.938, subd. 1 (b) (2023).
8 Minn. Stat. § 181.951, subd. 8 (a) (2023).
9 Id. at subd. 8 (b). If an employer is required by state or federal law to refuse to hire an applicant who tests positive for cannabis, then the employer should follow that requirement. Id.
10 1992 Minn. Laws Ch. 538.
11 Minn. Stat. § 181.938, subd. 2 (b) (2023).
12 Id. at subd. 3 (d).
13 Id. at subd. 2 (b), subd. 3 (a)–(c).
14 Minn. Stat. § 181.951, subd. 4–5 (2023).
15 Id. at subd. 6.
16 Id. at subd. 3.
17 Id. at subd. 4, 9.
18 Minn. Stat. § 181.938, subd. 2 (b) (2023).
19 Minn. Stat. § 181.983, subd. 2 (2023).
20 Id.
21 Karen E. Moeler, et al., Clinical Interpretation of Urine Drug Tests: What Clinicians Need to Know About Urine Drug Screens, Mayo Clinic Proceedings, March 18, 2017, at 774, 778–781.
22 “[T]he noticeable effects of smoked marijuana generally last from 1 to 3 hours, and those of marijuana consumer in food or drink may last for many hours.” What are Marijuana’s Effects?, National Institute on Drug Abuse, Apr. 19, 2023, https://nida.nih.gov/publications/research-reports/marijuana/what-are-marijuana-effects.
23 Minn. Stat. § 181.951, subd. 9 (2023).