Since 2014, Minnesota has had a medical cannabis law prohibiting discrimination against patients. Now, under a new law passed in May of this year, and going into effect in a few short weeks on August 1^st, the state will also protect employee off-duty use of cannabis. And when it does, it will present new challenges for Minnesota employers as they address its impacts to their current drug screening policies for prospective and current employees.

Over the past several years, widespread legalization of marijuana has impacted employers in dozens of other states, each of whom have had to navigate the same path as Minnesota employers, including if they can test (and if so, when), who they can test, and what they can do with the results, among other considerations. With increased legislation comes increased use … and consequently, increased employer challenges. According to Quest Diagnostics, in 2022, the percentage of employees in the general U.S. workforce testing positive for marijuana following on-the-job accidents increased to its highest level in 25 years.

Another challenge for employers is keeping up with these rapidly changing marijuana laws and understanding how employment and safety protocols need to adapt accordingly. The good news for Minnesota employers is that they are not the first state to navigate these challenges, so a blueprint of sorts can be found in the ways that other states have responded to similar marijuana laws. However, since each law has its own nuances, it’s important for employers first to have a solid working knowledge of the details of the law that was passed. To that end, we’ve compiled some frequently asked questions (and answers) for Minnesota employers.

FAQ 1: What is legal under Minnesota’s new marijuana law?

The law makes it legal for adults (age 21 and older) to use, possess, or transport cannabis. A person is permitted to possess up to two ounces in public and up to two pounds in their residence. A person may also grow up to eight cannabis plants, with no more than four being mature at a single residence.

FAQ 2: How does this impact employers?

Under the law, an employer may not refuse to hire a job applicant or discipline or discharge an employee because they engage in (or have engaged in) the use or enjoyment of “lawful consumable products,” as long as it takes place off the premises of the employer and during nonworking hours. “Lawful consumable products” includes cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products.

With regard to testing, the terms “drug and alcohol testing,” “drug or alcohol testing,” and “drug or alcohol test” no longer include cannabis or cannabis testing. As such, employers cannot test for cannabis as part of any drug testing protocol in an attempt to prohibit drug use or impairment in the workplace.

Under the law, an employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test. Further, an employer may not discharge an employee for whom a positive test result was received on a drug or alcohol test (and confirmed in a confirmatory test) if it was the first time that employee tested positive in that workplace.

FAQ 3: Are there instances where adverse employment action may be taken?

Minnesota employers may discipline, discharge, or take other adverse action only when an employee uses, possesses, sells, transfers, or is impaired by cannabis in the following circumstances:

• If, as a result of consuming cannabis, the employee does not possess that clearness of intellect and control of self that the employee otherwise would have.
• If cannabis testing verifies the presence of cannabis following a confirmatory test.
• If the employer’s written work rules for cannabis apply to such conduct, and the policy complies with applicable law.
• If the employer is otherwise authorized or required to do so under state or federal law or regulations, or if a failure to do so would cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.

It’s important to note that the law specifically requires that employers offer counseling or rehabilitation in lieu of termination to those testing positive for drugs, alcohol, and cannabis for the first time.

FAQ 4: What other exceptions are available?

Employers should be aware of the exceptions that legislators wrote into the new Minnesota law and understand how they apply (or don’t apply) to their unique businesses. Most of the exceptions relate to classification of workplace positions that may still be subject to cannabis testing. The law states that marijuana remains classified as a “drug” when used by certain employees in certain roles.

Exceptions under the law Include:

• Safety-sensitive positions – Roles that are defined as jobs where an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person.
• Police officers, sheriffs, and firefighters – Roles that require a heightened level of responsibility and need for awareness.
• Caretakers of children and vulnerable adults – Positions requiring face-to-face care, education, training, supervision, counseling, consultation, or medical assistance to children, vulnerable adults, or patients receiving healthcare services.
• Motor vehicle operators – Positions that require a commercial driver’s license or require an employee to operate a motor vehicle during their day-to-day responsibilities and where state or federal law requires drug or alcohol testing.
• Federal grant-funded roles – Positions that are funded by a federal grant.
• Other exceptions – Those violating work rules prohibiting the possession or sale of cannabis while the employee is on premises or those who have caused an accident while operating machinery, equipment, or vehicles at work, and any other positions for which federal law requires cannabis testing.

Those who fall into the exception categories may still be tested for the presence of cannabis. To that end, Minnesota employers may continue random cannabis testing for safety-sensitive positions, as well as professional athletes subject to a collective bargaining agreement that permits random testing. Additionally, employers may continue reasonable-suspicion cannabis testing, including post-accident testing, and treatment program cannabis testing.

FAQ 5: What challenges and questions remain?

As we discussed in our Hire Thinking article last month, there are aspects of marijuana laws that remain ambiguous for all employers. Notably, without a standard measurement for current impairment, it is unclear how to mitigate issues before they happen or react appropriately when they do. This is unchartered territory, with little or no case law available as reference for employers. At best, employers’ rights and responsibilities in this respect remain hazy.

FAQ 6: How should Minnesota employers prepare for the implementation of the new marijuana law?

Minnesota employers are faced with the challenge of balancing their compliance with the new law and fostering a safe workplace. Those that currently screen for cannabis use should consult with legal counsel and make the appropriate changes to their screening process in advance of the August 1^st deadline. This will likely include retraining HR employees, adjusting processes with lab screening partners, and revising onboarding documentation, such as employee handbooks and employment contracts.

Hire Image strives to be your trusted background screening resource and partner in 2023 and beyond. For more information on Medical or Recreational Marijuana, and whether they affect your state, visit our resource guide at the Hire Image Resource Library. If you have any questions about how to best protect your business, employees, and customers, please reach out at contact@hireimage.com.