Starting August 1, 2023, adults over the age of 21 will be allowed to possess up to two ounces of cannabis in public and up to two pounds of cannabis at their homes. While smoking or using cannabis in a public place is not permitted (except for certain licensed locations and/or events), the new cannabis law essentially removes the classification, consequences, and implications of cannabis as a “drug” in Minnesota. As such, this new law is likely to have a significant impact on Minnesota employers.
Minnesota Employers Can Still Create and Implement Cannabis Policies
Employers will still be able to create and implement policies to control cannabis in the workplace, similar to alcohol policies. However, there are some important considerations, including the legal and practical limitations on testing for cannabis. Here are some things employers need to know:
- Employers are allowed to ban possession, use, or distribution of cannabis products while on workplace premises.
- Employers are permitted to ban employees from being under the influence of marijuana while at work.
- Employers must have any rules and requirements related to cannabis clearly set forth in their policies and/or handbook.
- To that end, employers can no longer simply state that drugs (in the general sense) are prohibited and/or that drug testing (again, in the general sense) is required.
Because cannabis will no longer be considered an illegal drug in Minnesota as of August 1, 2023, generic workplace policies related to drugs will no longer be sufficient.
Changes to Drug Testing in Minnesota
Employers are still permitted to discipline employees for use of cannabis while on the job. However, since people will be able to use a broad range of cannabis products legally, drug testing has become much more complicated, and there will be some significant impacts on drug testing and policies. Testing for cannabis is already a gray area, because these substances can remain in someone’s system for days or sometimes weeks after someone uses them, even if the person is no longer under the influence.
Importantly, Minnesota legislators also concurrently revised the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”) concerning employers’ written work rules related to drug and alcohol testing in light of the new considerations with the cannabis law. Employers will need to make sure that any written policy complies with the updates to the DATWA, including the impact of the legalization of cannabis.
Minnesota employers will need to revisit drug testing policies and analyze how they want to address cannabis. Certain jobs, such as firefighters; medical assistance providers to children, vulnerable adults, or healthcare patients; any position requiring a commercial driver’s license or a job position that requires the employee to operate a motor vehicle (which state and/or federal law requires drug or alcohol testing); or any job that, under state and/or federal law, requires testing for cannabis, are still permitted to test for cannabis and may choose not to hire a job applicant if said job applicant tests positive. Other Minnesota employers, however, will need to carve out specific exceptions, define their treatment and consideration of cannabis, and make sure to develop procedures to ensure that they are in compliance with the new law.
The New Minnesota Cannabis Law Will Have Minimal Impact on Employers Subject to Federal Regulation
Marijuana still remains illegal at the federal level, which is why employers subject to federal requirements will likely see little impact. For example, federal contractors or employers subject to regulation by the Federal Department of Transportation will still need to comply with federal policies such as drug testing requirements. However, employers that are not subject to federal regulation will likely need to amend their drug testing and drug policies in the workplace.
Start Planning Now!
Legalized cannabis creates a number of broad changes to a number of systems in Minnesota. There will be new developments in this area of law, and FMJ will continue to monitor it. Please continue to check our Resources Page for more information.
In the meantime, it is a good idea for Minnesota employers to speak with an employment lawyer to discuss any necessary policy and procedural changes. FMJ’s HR & Employment Law Practice Group would be happy to help. Please reach out to Shannon McDonough, Natolie Hochhausen, and Jamie Briones. They can help analyze your current policies and procedures, and they can help you work through strategies for the future.
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