We’ve held off as long as we could, but you know we couldn’t resist forever!  After dancing around the concept for years and introducing every other alternative to the straight dope, Minnesota is now legalizing the use of genuine marijuana for recreational purposes, effective August 1, 2023.  While jam bands and college campuses across the state are rejoicing, employers may not be feeling the same vibes.  We’re here to give you the skinny on what you need to know to keep your workplace running and as drug-free as possible.

First and foremost – the Therapeutic Research Act is no more!  The entire medical marijuana legislation from the last nine years has been repealed…and moved into a different law.  The medical cannabis registry still exists, it’s just included in an entirely different statute now.  So, consistent with the previous law, it is illegal for employers to discriminate, discharge, or refuse to hire individuals who are on the medical cannabis registry, or penalize someone on the registry for a positive test.  In addition to the old law, tribal medical cannabis registry participants are also protected against penalties as a result of their registry status.

As was the law before, there are exceptions to these prohibitions, including for those who are using or selling cannabis at work, those whose jobs require them to be drug free in order to receive federal grant money, and those who will be utilizing firearms.

As far as new rules for employers go, cannabis has been added to the list of lawful consumable products.  As such, it is now a prohibited practice for employers to refuse to hire a job applicant, or discipline or discharge an employee because they engage in the use of a lawful consumable product.  However, employers may continue to discipline or discharge employees for cannabis product use, possession, impairment, sale, or transfer during working hours, on work premises, or while the employee is operating employer equipment.  In addition, as we’ve stated previously, the lawful consumable product statute does not apply to public employers or employers subject to the Federal Railway Labor Act (your pilots and engineers must stay clear-eyed, even on a red-eye).

The most important changes for employers are the changes to the Drug and Alcohol Testing in the Workplace Act (“DATWA”).  DATWA now makes cannabis distinct from both drugs and alcohol, and has a specific definition of “Cannabis testing,” which is the analysis of a sample for the purpose of measuring the presence of cannabis.  There have been several limitations created on cannabis testing:

• Employers may not request job applicants to undergo cannabis testing solely for the purpose of determining the presence of cannabis as a condition employment, unless required by state or federal law;
• Employers may not refuse to hire an applicant who submits to a cannabis test and tests positive for its presence;
• Employers may not test for cannabis on an arbitrary or capricious basis;
• Employers may conduct reasonable suspicion tests on employees who are either on the employer’s premises or operating the employer’s equipment if:
  • The employee does not possess the “clearness of intellect and control of self” the employee otherwise would have;
  • The employee has violated the employer’s written work rules prohibiting cannabis use or possession on the work site (must have a written policy); or
  • The employee has sustained a personal injury or caused a work-related accident.

Employees in safety-sensitive positions, peace officers, firefighters, those providing care for children, vulnerable adults and mental health patients, CDL drivers, and other positions required by law to be tested are not subject to these prohibitions, and can be tested under an employer’s drug testing policy.

Finally, employers are not required to tolerate the use, possession, sales, or transfer of marijuana by employees on employer premises or in employer equipment, and can discipline for those actions.  However, in order to do so, an employer MUST have a policy for which employees have received notice in order to discipline for such actions.

Employers don’t have a lot of time to adapt to the new changes.  They must act quickly to update their policies in anticipation of the August 1 changes.  If you, or your organization, need assistance with making changes to your current drug and alcohol policies, contact Wiley Reber Law, for legal advice that works.