Major changes to the Minnesota Lawful Consumable Products Act (“CPA”) and the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”) will go into effect this week on August 1, 2023, in conjunction with the legalization of recreational marijuana in Minnesota. As Minnesota becomes the 23rd state to legalize recreational marijuana for adults, here is what employers need to know.
Amendments to the CPA
The new law amends the CPA to protect employees’ off-duty use of cannabis products.[1] The CPA prohibits employers from disciplining or terminating employees (or refusing to hire applicants) who “use or enjoy[] lawful consumable products” outside of work. Starting on August 1, 2023, the new law will specifically add cannabis products to the list of “lawful consumable products” under the CPA.
However, the new law does allow employers to discipline or discharge employees who use, possess, are impaired by, sell, or transfer cannabis products during work hours, on work premises, or while operating an employer’s vehicle, machinery, or equipment. In addition, employers may continue to restrict off-duty use if failing to do so would violate federal or state law or cause the employer to lose a monetary or licensing-related benefit under federal law.
Amendments to DATWA
The new law also includes significant changes to DATWA, which already stringently governs employee-drug testing. In particular, the new law imposes important limitations on “cannabis testing” – a newly created category of testing specifically for cannabis products.
First, the new law generally prohibits pre-employment cannabis testing for applicants. More specifically, employers may not require or request such testing or refuse to hire an applicant solely for testing positive for cannabis unless otherwise required by federal or state law. Second, the new law generally prohibits cannabis testing for current employees as part of routine physical examinations or on an “arbitrary and capricious basis.”
The new law does, however, allow exceptions to these limitations on cannabis testing. Most significantly, employers may still require pre-employment and routine-physical-examination cannabis testing for:
- Safety-sensitive positions;
- Peace-officer positions;
- Firefighter positions
- Positions requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to (i) children, (ii) vulnerable adults, or (iii) patients receiving healthcare services from a provider;
- Positions requiring a commercial driver’s license or the employee to operate a motor vehicle for which federal or state law requires drug or alcohol testing;
- Positions of employment funded by a federal grant; and
- All other positions for which federal or state law requires cannabis testing.
In addition, the new law does not require employers to allow or accommodate cannabis use, possession, impairment, sale, or transfer while an employee is working, on work premises, or operating the employer’s vehicle, machinery, or equipment. Employers may instead prohibit that conduct in a written policy.
Lastly, employers may continue to test for cannabis in treatment-program testing as well as in reasonable-suspicion testing (such as after a work-related accident or upon reasonable belief that an employee has violated a written policy’s cannabis restrictions while on duty).
Moving Forward
Given the intricacies of the new law, and its major changes to the CPA and DATWA, employers should consult with counsel about their drug-testing policies to ensure they are in compliance. For more information, reach out to a member of the Vogel Law Firm’s Employment and Labor team.
[1] The new law sets forth detailed definitions of cannabis products, which embrace, among other things, marijuana, THC, cannabis flower, and hemp-derived consumer products. This article collectively refers to all such products a “cannabis products” for ease of reference.
MacKenzie Hertz, Employment and Labor Law Attorney