Minnesota has legalized recreational marijuana and will protect all employee off-duty use of cannabis beginning Aug. 1, 2023.
The state has had a medical marijuana law since 2014 that prohibits discrimination against medical marijuana users.
Under the new recreational marijuana law, individuals 21 years old or older are allowed to possess or transport up to 2 ounces of the cannabis flower in public and to possess up to 2 pounds of the cannabis flower in a private residence.
Employees can’t be disciplined for use outside of work
This new law amends the state’s Consumable Products Act (CPA) “which prohibits employers from disciplining or discharging employees (or refusing to hire applicants) who use ‘lawful consumable products’ outside of work,” according to law firm Jackson Lewis.
The term lawful consumable products specifically refers to:
- the cannabis flower
- cannabis products
- lower-potency hemp edibles, and
- hemp-derived consumer products.
Further, these products are considered lawful consumable products under state law “regardless of whether federal or other state law considers cannabis use, possession, impairment, sale or transfer to be unlawful.”
Action can be taken against workers for on-the-job use
There’s nothing in the new law prohibiting employers from taking action against employees who use, possess, sell, transfer or are impaired by these products while:
- being on company premises, or
- operating an employer’s vehicles, machines or equipment.
Employers can also prohibit the use of these products if failing to do so would violate another federal or state law or regulation or cause the employer to lose money or benefits under federal regulations.
Testing allowed only under certain conditions
However, employers may no longer require or request pre-employment cannabis testing or refuse to hire an applicant just because they tested positive for cannabis on a pre-employment test. Employers can no longer require “physical examination cannabis testing for most positions, nor can they require cannabis testing on an arbitrary or capricious basis.”
There are exceptions to this rule that apply to:
- safety-sensitive positions
- peace officer positions
- firefighter positions
- positions requiring face-to-face care, training, education, supervision, counseling, consultation or medical assistance to children, vulnerable adults or patients being treated for 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
- positions of employment funded by federal grants, or
- any other positions that require testing of a job applicant under federal law.
For any of these positions, an employer can continue to treat cannabis as an illegal drug.
Reasonable suspicion testing, including post-accident tests, is also still allowed under the law.