Legalizing Weed Is Making Drug Testing Complicated

Minnesota’s New Recreational Cannabis Law Results in First-Of-Its-Kind Drug Testing Scheme

by    Jennifer Mora and Frederick Smith 

at Seyfarth Shaw LLP

Since 2014, Minnesota has provided applicants and employees with protections if they lawfully use cannabis for medicinal purposes. Starting August 1, 2023, Minnesota will provide protections to individuals who use cannabis for recreational purposes, after Minnesota Governor Tim Walz signed a state law allowing adults 21 and older to use recreational cannabis. The new law amends the state’s Consumable Products Act to protect off-duty cannabis use. The law also amends Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA) by excluding cannabis from the definition of “drug” and by creating two different workplace drug testing schemes based on whether positions are exempt from the cannabis testing prohibitions.  

Does the new law protect off-duty use? 

Yes. Minnesota’s new law joins the growing number of jurisdictions, most recently in New York, Montana, and Washington D.C., to make it unlawful for an employer to take any action against a person for off-duty cannabis use. Like New York, Minnesota amended its Consumable Products Act (CPA) to add cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products (as those terms are defined under Minnesota law) (collectively “cannabis”) to the term “lawful consumable product,” regardless of the fact that cannabis remains illegal under federal law. This expanded definition should avoid litigation in Minnesota over whether the CPA covers a product that is legal under state law, but not federal law, as we saw in Coats v. Dish Network, LLC (Colorado 2015) and Ceballos v. NP Palace, LLC (Nevada 2022).  

This expansion of the CPA makes it unlawful for employers to take action against a job applicant or a current employee (e.g., withdrawing a job offer or terminating employment) based on their off-premises, off-duty use of cannabis products.  

However, the amended CPA does not impact an employer’s right to discipline or terminate an employee who uses, possesses, sells, transfers, or is impaired by cannabis products during working hours, while on work premises, or while operating an employer’s vehicles, machinery, or equipment. In addition, employers may continue prohibiting the use of cannabis if failing to do so would violate federal or state law or regulations or cause the employer to lose a monetary or licensing-related benefit under federal law or regulations. 

Amendments to the definition of “drug” in the DATWA. 

Minnesota’s DATWA has regulated workplace drug testing since 1987. The DATWA restricts certain types of drug and alcohol tests, imposes specific written policy and notice requirements, and requires employers to give an employee who tests positive for drugs a “second chance” if the employee follows the requirements set out in the statute.  

Starting August 1, 2023, whether and when a Minnesota employer can test for cannabis will depend on either the position at issue or the type of testing sought (e.g., pre-employment, random, reasonable suspicion or treatment program). This is because the new law amends the DATWA to effectively create two separate drug testing schemes by excluding cannabis from the definition of “drug,” unless an exception applies, and adding a new definition for “cannabis testing” (any test that measures the presence of cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products (as those terms are defined in other statutes) or cannabis metabolites). 

Can employers test for cannabis before employment? 

As a general proposition, unless an exception applies, it will be unlawful for a Minnesota employer to: 

• require or request any type of pre-employment test for cannabis;  
• refuse to hire an applicant solely because the applicant tested positive for cannabis on a pre-employment test; and  
• require cannabis testing on an arbitrary or capricious basis. 

Are there exceptions to the general prohibition against pre-employment cannabis testing?  

Yes, employers can treat cannabis like any other “drug” under the DATWA and, therefore, test applicants for cannabis if they are applying to work in one of the following positions: 

• Safety-sensitive positions; 
• Peace officers; 
• Firefighters; 
• Positions requiring face-to-face care, training, education, supervision, counseling, consultation or medical assistance to children, vulnerable adults, or patients receiving health care services from a provider for the treatment, examination, or emergency care of a medical, psychiatric, or mental condition; 
• Positions 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; 
• Employment positions funded by a federal grant; or 
• Positions for which federal law requires pre-employment cannabis testing. 

What about random, reasonable suspicion, post-accident, and treatment program testing for cannabis? 

Employers may continue to mandate random drug testing (which can include cannabis) if the employee is employed in a safety-sensitive position (i.e., jobs in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person). 

Employers also can conduct drug (including cannabis) or alcohol testing if they have reasonable suspicion that an employee: 

• is under the influence of drugs, alcohol, or cannabis;  
• has violated the employer’s written rules prohibiting the use, possession, sale, or transfer of drugs, alcohol, or cannabis while the employee is working or while the employee is on the employer’s premises or operating the employer’s vehicles, machinery, or equipment, provided the rules are in a written drug and alcohol policy;  
• has sustained a personal injury (as defined under Minnesota law) or caused another employee to sustain a personal injury; or 
• has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident. 

Employers also can require a drug test (including cannabis) during the time an employee has been referred for substance abuse treatment or evaluation and/or is participating in a treatment program for up to two years after the employee completes the prescribed substance use disorder treatment program.  

Can employers prohibit use or possession at work? 

Unless otherwise provided by state or federal law, employers are not required to permit or accommodate cannabis use, possession, impairment, transfer, or sale while an employee is working or while an employee is on the employer’s premises or operating the employer’s vehicles, machinery, or equipment provided the rules are set out in a DATWA-compliant drug testing policy.  

An employer can take employment action against an employee who violates these rules as follows: 

• if, as the result of consuming cannabis, the “employee does not 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, provided that the rules are set out in a DATWA-compliant drug testing policy; 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. 

Does the law require employers to have a drug or cannabis testing policy? 

Yes. The DATWA has imposed policy requirements on employers with drug and alcohol testing programs for several decades. More specifically, an employer’s drug and alcohol policy must, at a minimum, state: (1) the employees or job applicants subject to testing under the policy; (2) the circumstances under which drug or alcohol testing may be requested or required; (3) the right of an employee or job applicant to refuse to undergo drug and alcohol testing and the consequences of refusal; (4) any disciplinary or other adverse action that may be taken based on a confirmatory test verifying a positive test result on an initial screening test; (5) the right of an employee or job applicant to explain a positive test result on a confirmatory test or request and pay for a confirmatory retest; and (6) any other appeal procedures available.  

With the new law’s amendments to the DATWA, employers should consider modifying their drug testing policy to identify the circumstances under which they will test for cannabis and any rules the employer wants to impose relating to using, possessing, or being impaired by cannabis while at work or on employer property. 

Next steps for employers 

Unfortunately for employers, especially those with a multi-state footprint, cannabis laws are becoming more complicated. While the new Minnesota law provides employers some relief since it contains numerous exemptions, including one relating to those applying to work or working in safety-sensitive jobs, it still requires employers to revisit their approach to cannabis testing and to modify their policies to address the amendments to the CPA and the DATWA and to ensure overall compliance with Minnesota law.