Minnesota has enacted legislation (House File 100) that permits recreational cannabis use among adults age 21 and older beginning August 1, 2023. The law includes protections for off-duty cannabis use.
The Details
House File 100 expressly adds cannabis to the state’s definition of a “lawful consumable product,” meaning an employer is prohibited from taking adverse action against an individual because of their use of cannabis or cannabis products outside of work during nonworking hours.
Unless otherwise provided by state or federal law, an employer isn’t required to permit or accommodate cannabis use, possession, impairment, sale or transfer while an employee is working, or while an employee is on the employer's premises or operating the employer's vehicle, machinery or equipment.
An employer may only enact and enforce written work rules prohibiting cannabis use, possession, impairment, sale or transfer while an employee is working or while an employee is on the employer's premises or operating the employer's vehicle, machinery or equipment. The written policy must contain the minimum information required by the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA), as amended.
Limitations on Discipline of Current Employees
House File 100 amends the DATWA to extend certain existing disciplinary protections. For example, effective August 1, 2023, the DATWA will require that instead of termination, employers must first offer counseling or rehabilitation to employees who test positive for cannabis for the first time.
House File 100 also adds new protections specifically for cannabis. Under these provisions, an employer may only discipline, discharge or take other adverse personnel action against an employee for cannabis use, possession, impairment, sale or transfer while an employee is working on the employer's premises, or operating the employer's vehicle, machinery, or equipment as follows:
- If, as the result of consuming cannabis, the employee doesn’t 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;
- As provided in the employer's written work rules for cannabis and cannabis testing, provided that the rules are in writing and in a written policy that contains the minimum information required; or
- As otherwise authorized or required 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.
Drug Testing Applicants
With limited exceptions, employers are prohibited from requesting or requiring a job applicant to undergo pre-employment cannabis testing solely for the purpose of determining the presence or absence of cannabis as a condition of employment, unless otherwise required by state or federal law. Unless otherwise required by state or federal law, employers are prohibited from refusing to hire a job applicant solely because the job applicant submits to a cannabis test and the results of the test indicate the presence of cannabis.
Exceptions
The limitations on pre-employment testing for cannabis don’t apply to:
- A safety-sensitive position (i.e., a job in which an impairment caused by drug, alcohol or cannabis usage would threaten the health or safety of any person);
- A peace officer position;
- A firefighter position;
- A position 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;
- A position requiring a commercial driver’s license or requiring an employee to operate a motor vehicle for which state or federal law requires drug or alcohol testing of a job applicant or an employee;
- A position of employment funded by a federal grant; or
- Any other position for which federal law requires testing of a job applicant for cannabis.
Next Steps
In consultation with employment counsel, review and update drug-free workplace policies to ensure compliance with the changes made by House File 100.
Please contact your dedicated service professional with any questions.