Cannabis Is Legal In Minnesota. What Does That Mean For Employers?

Cannabis Is Legal In Minnesota. What Does That Mean For Employers?

You suspect that one of your employees is high as a kite at work. Or maybe they were high as a kite last night. Cannabis is legal in Minnesota but illegal federally. What options do you have as an employer to address the issue? Here are some of the most common questions from employers facing the same dilemma:

  • I don’t like that my employee smokes cannabis at all. Can I fire them because they partake in the devil’s lettuce?

The answer is no. Employers are not allowed to refuse to hire an applicant or discharge an employee because they engage in the use of cannabis. Minn. Stat. §181.938, subd. 2(a) (2023). Minnesota statutes considers cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products “lawful consumable products.” Minn. Stat. §181.938, subd. 2(b) (2023). There are limited exceptions to this rule. For example, if the employee refuses or fails to comply with the conditions established by a substance use disorder treatment or aftercare program. Minn. Stat. §181.938, subd. 3(b) (2023).

Employers can restrict 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. Minn. Stat. §181.952, subd. 3(a) (2023).

  • My employee looks high at work. Can I require them to get tested?

That depends on the employee’s job and whether it is a position that is federally regulated. Federal law preempts the Minnesota statutes when it comes to employees, applicants, facilities, and safety issues that are federally regulated. Minn. Stat. §181.957, (2023). In those cases, employers must look to the federal rules on testing.

Cannabis and its metabolites are considered a drug and subject to the drug and alcohol testing provisions outlined in Minnesota’s statutes for certain positions including: safety- sensitive positions; peace officers; firefighters; positions requiring positions requiring face-to-face care or assistance to children, vulnerable adults, or medical patients; positions requiring a commercial driver’s license, positions funded by federal grants, or any other position which state or federal law requires testing. Minn. Stat. §181.951, subd. 9 (2023).

If an employer has a “reasonable suspicion” or forms the belief that their employee is high based on specific facts and rational inferences drawn from those facts, then they can test their employee under certain circumstances. Minn. Stat. §181.950, subd. 12 (2023). Specifically, the employer may request or require their employee undergo cannabis testing if the employer has a reasonable suspicion that the employee: is under the influence of drugs or alcohol; has violated the employer’s written work rules regarding cannabis; sustained a personal injury or caused another employee to sustain a personal injury; or has caused a work-related accident or was operating vehicles or machinery involved in a work-related accident. Minn. Stat. §181.951, subd. 5 (2023).

Employers cannot request or require an employee to undergo testing unless the testing is done according to a written drug and alcohol testing policy that abides by Minnesota law and is conducted by a testing laboratory that meets the legal criteria outlined in Minnesota’s statutes. Minn. Stat. §181.951, subd. 1 (b)(2023). Employers also cannot request or require an employee to undergo drug and alcohol testing on an arbitrary or capricious basis. Minn. Stat. §181.951, subd. 1(c) (2023).

  • What happens after I test my employee?

Within three working days of the receipt of the test results, the employer must inform the employee of the initial result, the right to request a confirmatory retest if the initial result was positive, and the other rights included under Minnesota law. Minn. Stat. §181.953, subd. 7 (2023). For example, if the employee tests positive for cannabis, they must be given a written notice of the right to explain the positive test, which the employee has three days to submit. Minn. Stat. §181.953, subd. 6 (2023).

  • Can I fire the employee?

Yes, IF certain conditions are met. Employers may not discharge an employee on the basis of an initial positive test result that has not been verified by a confirmatory test. Minn. Stat. §181.953, subd. 10(a) (2023). If the employee tested positive and that result was verified by a confirmatory test, but it was the first such result for that employee, the employer still cannot discharge them without also meeting the following: the employer has given the employee an opportunity to participate in a counseling or rehabilitation program AND the employee either refused the counseling or rehabilitation program or failed to successfully complete the program. Minn. Stat. §181.953, subd. 10(b) (2023).

Employers may also discharge an employee if, as a result of consuming cannabis, that employee does not possess the clearness of intellect or self-control they would have otherwise, tests positive for cannabis and the testing is confirmed as outlined above, violates the employer’s written work rules for cannabis, or as otherwise authorized by state or federal law. Minn. Stat. §181.953, subd. 10a. (2023).

Legal consultation is advised for specific questions and scenarios, ensuring effective and compliant navigation through these topics. Parker Daniels Kibort has one of the top labor and employment practices in the State of Minnesota. For more information on this topic or for help with related inquiries, contact the Parker Daniels Kibort labor and employment team at 612.355.4100.