Minnesota Employers and Recreational Marijuana: Answers to Frequently Asked Questions Regarding Cannabis Legalization in Minnesota | Winthrop & Weinstine, P.A.

The Minnesota Legislature has passed legislation legalizing adult recreational cannabis use. The bill has been approved by both the House and Senate, and has been sent to the Governor’s desk for approval. This is a mere formality as Governor Walz has pledged to sign the bill into law.

Generally speaking, the law permits recreational cannabis[1] use for adults age 21 and older beginning August 1, 2023. It will no longer be a crime for Minnesotans to have up to two pounds of cannabis at their home and transport two ounces while in public. The law allows individuals to grow up to eight flowering plants—with no more than four being mature—at a single residence without a state license. The law also creates a regulatory framework to license businesses to cultivate, manufacture and sell cannabis at retail dispensaries.

With cannabis use and possession becoming legal beginning August 1, 2023, Minnesota employers need to take action to review their drug and alcohol testing policies by that date. Below are answers to many of the questions frequently asked by Minnesota employers about this new law. These questions and answers are applicable to employers who are not regulated by federal contractor or federal drug testing requirements, or Federal Department of Transportation requirements, as marijuana is still illegal under federal law.

Question: Can employees use cannabis at work?

Answer: No.  Employers are not required to permit employee use, possession, or distribution of cannabis products at the workplace. Employers may also prohibit being under the influence at work. These requirements should be in the employer’s policies and the policy should specifically state that being under the influence of cannabis is not permitted. Simply prohibiting “drugs”  or referring to “drug testing” will no longer suffice, because the new law removes cannabis products from the definition of “drug” in certain portions of the statute.

Furthermore, adults may only use cannabis for recreational purposes in certain locations. Public use is limited to businesses or events licensed for on-site consumption. Smoking cannabis products is prohibited in public places.

Question: Can I discipline employees for using cannabis at work?

Answer: Yes, if any of the following requirements are met:

  1. As a result of consuming a cannabis or hemp-derived product, the employee does not possess the clearness of intellect and control of self that the employee otherwise would have; or
  2. If testing verifies the presence of cannabis flower, a cannabis product, a lower-potency hemp edible, or a hemp-derived consumer product following a confirmatory retest; or
  3. If discipline is provided for in the employer’s written work rules, if such work rules meet the minimum requirements of the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), Minn. Stat. § 181.952.

Employers should review their policies to make sure they meet the minimum requirements of DATWA, which was revised by the new legislation. Managers should also be trained on the employer’s policies and how to document employees suspected of being under the influence of cannabis.

Question: If I learn that an employee uses cannabis outside of work, can I or should I do anything based on that information?

Answer: No. If an employee uses cannabis outside of work hours and off of work premises, then an employer may not lawfully discipline an employee for that behavior. Minnesota’s “Lawful Consumable Products Statute” prohibits employers from disciplining or discriminating against employees or job applicants for their use of lawful products outside of work. The new cannabis law specifically states that cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products are “lawful consumable products.”

Question: Can I test job applicants for cannabis?

Answer: No, unless it is required by state or federal law or there is an exception. This is a change from previous law. The new law prohibits testing job applicants for cannabis as a condition of employment. Going forward, an employer may not refuse to hire a job applicant solely because the applicant’s test results indicate the presence of cannabis.

Exceptions: The new law provides that for certain positions, cannabis is still considered a drug and employers may test applicants for cannabis. The positions are: safety-sensitive positions (as defined by statute); peace officers; firefighters; a position requiring face-to-face care, education, training, supervision, counseling, consultation, or medical assistance to children, vulnerable adults, or healthcare patients; a position requiring a commercial driver’s license or requiring the employee to operate a motor vehicle for which state or federal law requires drug or alcohol testing of the applicant or an employee; any position funded by a federal grant; or any other position for which state or federal law requires testing of a job applicant or an employee for cannabis.

Question: What is a safety-sensitive employee?

Answer: Safety-sensitive is defined by Minnesota statute. “Safety-sensitive position” means a job, including any supervisory or management position, in which an impairment caused by drugs, alcohol, or cannabis usage would threaten the health or safety of any person.

Question: Can I test employees for cannabis?

Answer: It depends. Under the new law’s amendments to DATWA, “cannabis testing” is distinguished from “drug and alcohol testing.” Any test must be done pursuant to an employer’s policy that is compliant with DATWA, and the policy must specifically outline the types of testing an employee may be subject to under the policy.

Reasonable suspicion. After August 1, 2023, employers may test employees for cannabis if the employer has reasonable suspicion that the employee:

  1. has violated the employer’s written work rules prohibiting the use, possession, sale, or transfer of drugs, alcohol, or cannabis while the employee is working or on the employer’s premises; or
  2. has sustained a personal injury (as statutorily defined) or has caused another employee to sustain a personal injury; or
  3. has caused a work-related accident or was operating or helping to operate machinery, equipment or vehicles involved in a work-related accident.

Random testing for certain employees. After August 1, 2023, employers may conduct random cannabis testing of employees if they are employed in safety-sensitive positions, or are professional athletes subject to a collective bargaining agreement.

Treatment program testing. After August 1, 2023, employers may conduct cannabis testing on employees who have been referred by the employer for substance-use disorder treatment or evaluation, or who are participating in a substance use disorder treatment program under an employee benefit plan. If this is the case, the employee may be requested or required to undergo cannabis testing and drug or alcohol testing without prior notice during the evaluation or treatment period and for a period of up to two years following completion of any prescribed substance-use disorder treatment program.

Exceptions. The following positions may still be tested pre-employment, as required by law, or as part of routine physical examination testing during employment: safety-sensitive positions (as defined by statute); peace officers; firefighters; a position requiring face-to-face care, education, training, supervision, counseling, consultation, or medical assistance to children, vulnerable adults, or healthcare patients; a position requiring a commercial driver’s license or requiring the employee to operate a motor vehicle for which state or federal law requires drug or alcohol testing of the applicant or an employee; any position funded by a federal grant; or any other position for which state or federal law requires testing of a job applicant or an employee for cannabis.

Question: Do employers need to test employees for cannabis or other drugs or alcohol?

Answer: Not unless required by other state or federal law. DATWA does not impose a requirement for employers to test employees for drugs, alcohol, or cannabis. Furthermore, employers may forego disciplining or testing specifically for cannabis, drugs, or alcohol and may manage employee performance issues separately. For example, instead of testing or mentioning substance use, an employer may discipline employee behavior, such as using profanity, acting out, or causing damage or accidents.

Question: What about medical cannabis?

Answer: Minnesota’s medical cannabis program is still in place. There will be additional medical cannabis licenses allowed under the new law. It is still unlawful for an employer to discriminate against a person who is enrolled in the medical cannabis program unless the employer would lose a monetary or licensing-related benefit under federal law or regulations. Patients enrolled on the medical cannabis registry may still present their medical cannabis registration verification to their employer in the event the patient tests positive on an employer’s drug or cannabis test. Employers are not required to permit an employee enrolled in the medical cannabis program to be under the influence at work.

Question: Should companies revise their drug and alcohol policies?

Answer: If you have employees in Minnesota, probably. For example, if an employer wants the ability to discipline or test Minnesota employees for use of cannabis at the workplace, policies must be revised to specifically mention “cannabis” rather than simply “drugs.” Depending on the type of testing conducted, other revisions may be required.

Question: What if my company has employees in multiple states?

Answer: Drug, alcohol, and cannabis testing is largely dependent on state law, and your policies should have provisions to meet specific state requirements, if any. Depending on the states covered and the conduct an employer wants to regulate, an employer could have a broad policy applicable to all employees. However, separate state policies may be prudent, depending on the company. Minnesota has one of the strictest employee drug, cannabis, and alcohol testing laws in the country.

[1] The Minnesota law references “cannabis flower,” “cannabis product,” “hemp edibles,” and “hemp-derived consumer products,” which will broadly be referred to as “cannabis” in this article.

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