Minnesota lawmakers have agreed on legislation that will push forward the legalization of marijuana and certain cannabis products, and Governor Walz has indicated that he will sign the bill when it lands on his desk. While many applaud legalization for recreational use, it presents challenges for Minnesota employers. Those challenges must be addressed quickly to ensure both employees and employers comply with new laws.
How The Minnesota Omnibus Cannabis Bill Affects Employers
The Minnesota Omnibus Cannabis Bill specifically excludes marijuana and cannabis products from the definition of “drugs” as it is currently defined in Minn. Stat. §152.01(4). Specifically, the Omnibus Cannabis Bill indicates that the following are no longer considered drugs under Minnesota law (even though hemp derived products are not “drugs” under current law):
- Cannabis flower
- Cannabis products
- Lower-potency hemp edibles
- Hemp-derived consumer products
The Minnesota Lawful Consumable Products Act states that employers within the state cannot take adverse employment actions toward potential or current employees who use “lawful consumable products” off premises during nonworking hours. Adverse employment actions include failing to hire, demotion, failure to promote, and other actions that would negatively impact an individual’s job.
The Omnibus Cannabis Bill specifically prohibits employers from discriminating against employees who use marijuana and cannabis products on their own personal time. It does this by including these products as a “lawful consumable” under Minnesota law. Other lawful consumables include alcohol and tobacco. This applies regardless of federal laws addressing marijuana and cannabis products.
Exceptions to Minnesota’s Omnibus Cannabis Bill
There are some exceptions to the Omnibus Cannabis Bill, including employees who fall into the following categories:
- Peace officers
- Childcare workers
- People working with vulnerable adults
- Healthcare workers
- CDL drivers
Additionally, federally funded grant positions and jobs where a drug test is required under federal law are exempt from allowing marijuana use on the employee’s own time.
Can an Employer Still Drug Test an Employee?
Employer drug testing policies must comply with Minnesota’s Drug Testing in the Workplace Act (DATWA). As of August 1, 2023, pre-employment drug tests can no longer screen for marijuana and cannabis products. However, employers can test for cannabis along with other drugs if it is included in reasonable suspicion testing protocol, random substance testing, or post-accident testing policies.
Can an Employer Prohibit Marijuana Use On the Job?
Minnesota employers can have policies prohibiting use, possession, sale, and transfer of marijuana and cannabis products while at work, during work hours, or on employer property. Employers can also have policies prohibiting marijuana intoxication while at work – regardless of when the employee used the substance. Employees may be disciplined or terminated for violating those policies.
However, it can be difficult to prove that an employee is intoxicated while at work. Most marijuana tests will reveal use that could have occurred days or weeks before the test. Proving on-the-job intoxication may require additional evidence, such as admission by the employee or statements from coworkers.
How Will Increased Marijuana Use in Minnesota Impact the Workplace?
While marijuana use may become more common, employers may see some negative outcomes. The U.S. Centers for Disease Control (CDC) indicates that marijuana use can result in disorientation, impaired judgment, decreased concentration, delayed decision making, and impaired learning. It can also negatively impact fine motor skills. For these reasons, it is still illegal to operate a motor vehicle while intoxicated by cannabis.
These marijuana side effects can result in safety concerns in certain industries as well as decreased productivity. Maintaining employee health and well-being may also become a challenge for many employers.
Actions Employers Can Take as Marijuana Becomes Legal in Minnesota
It appears certain that marijuana and cannabis products will become legal in Minnesota. There are some actions that employers can take to be proactive about their workplace policies.
- Set clear guidelines regarding substance use at work, including prohibiting any on-property use or intoxication.
- Remove off worksite marijuana and cannabis use from disciplinary policies.
- Adjust or adopt drug testing policies, including those for pre-employment screening.
- Train all employees on the risks of marijuana intoxication at work and ensure managers know the signs.
Marijuana Is Still Illegal at the Federal Level
Keep in mind that the federal Controlled Substances Act still categorizes marijuana (cannabis under MN law) products as Schedule I drugs pursuant to 21 U.S.C.S. §844(a). That means that anyone using, possessing, selling, distributing, and manufacturing marijuana-related products can face federal criminal charges. Under federal law, there is no exception for medical marijuana. However, there is a push at the Congressional level to decriminalize cannabis products.
Contact a Minnesota Cannabis Business Lawyer for Guidance
Minnesota is set to legalize the use of marijuana and cannabis products, an action that will present challenges to employers within the state. There are important steps that you need to take to ensure that your business complies with the Minnesota Omnibus Cannabis Bill. If you have specific questions about your employment policies or need legal advice on how to make changes, contact S Burns Legal today.