By Yvette Farnsworth Baker, Esq., Senior Legal Consultant
Marijuana-legal Minnesota: Navigating the Workplace Post-Legalization
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The state of Minnesota is the birthplace of Bob Dylan and Prince and will soon be the home of a robust recreational marijuana market. In May 2023, the Minnesota legislature passed a bill legalizing recreational marijuana. While Minnesota was not an early adopter of recreational marijuana, it did pass a recreational marijuana law that in some aspects is unique in the country. Minnesota law has long placed tight regulations on workplace drug testing, and the new marijuana law adds another layer to this already restrictive approach.
Recreational Marijuana Legalization in Minnesota
Beginning in August 2023, adults 21 and older in Minnesota are permitted to possess marijuana legally: two ounces in public spaces and two pounds inside residential homes with some provisions for home growing plants. A new state agency, The Office of Cannabis Management, was created, which will enact regulations for the retail market. The agency’s goal is to accept applications for retail stores beginning in May 2024 with sales potentially beginning in 2025.
While recreational marijuana legalization was passed by the legislature and not a voter initiative, it appears that it had the support of Minnesota residents. A 2022 survey showed that 53% of voters in Minnesota supported the legalization of recreational marijuana in the state, with only 36% of voters opposed.[1] Across all age groups, the survey showed more support for legalization than opposition, with the highest amount of support at the youngest age group polled. But even voters 65 and older polled more support for legalization than opposition to legalization.
Workplace Provisions
Minnesota’s recreational marijuana law has detailed directives for employers. Some are restrictions that can be found in many other state marijuana laws and others are unique to Minnesota.
Minnesota’s marijuana law includes restrictions on adverse employment action without proof of impairment or possession on the job, similar to many other state laws in recent years. Employers are prohibited from discipling an employee or firing an employee for a positive marijuana test without proof that the employee possessed marijuana at work or was impaired by marijuana while working. Marijuana use that occurred outside the workplace and off work hours cannot be disciplined unless the employee was working while impaired by marijuana. The law does expressly permit employers to discipline or discharge employees for possessing marijuana at work, using marijuana at work, or for working while impaired by marijuana. But a marijuana positive on its own without additional factors cannot be the basis for workplace discipline.
Employer regulations that are unique to Minnesota involve restrictions on marijuana testing “on an arbitrary or capricious basis.” In the first place, the law expressly prohibits pre-employment testing for marijuana. Additionally, the recreational marijuana law prohibits employers from requiring employees to submit to marijuana testing “on an arbitrary or capricious basis.” The statute gives no additional guidance on what constitutes arbitrary or capricious testing. It may mean that testing for marijuana under circumstances that are not post-accident or reasonable suspicion is prohibited. Pre-employment testing for marijuana is explicitly prohibited, and potentially random testing and periodic testing for marijuana without suspicion could be considered testing “on an arbitrary or capricious basis.”
Exceptions to Employer Restrictions
The good news for employers is that there are a number of exceptions carved out in the marijuana law. Safety-sensitive positions are exempted from the testing and disciplinary restrictions. Likewise exempted are positions requiring face-to-face care, training, education, supervision, counseling, consulting, or medical assistance to children, vulnerable adults, or patients who receive health care services from a provider for the treatment, examination, or emergency care of a medical, psychiatric, or mental condition. Also exempted are positions requiring a commercial driver’s license and positions requiring an employee to operate a motor vehicle for which law (state or federal) requires drug testing. Peace officers, firefighters, positions funded by a federal grant, or any position required by law to undergo drug testing are all also exempted from the marijuana legalization restrictions.
Next Steps for Employers
What are the next steps for employers in Minnesota? Employers should first review the list of exempted positions to ascertain which employees will be affected by this law. All employers need to review their current drug testing policy to determine what changes need to be made. If possible, employers should consult with legal counsel and professionals in the workplace drug testing sphere to get assistance in making changes to their policy. Employees must be notified of policy changes in writing. Even employees who will still be disciplined for marijuana positives should be informed of such to ensure that all employees understand the employer’s expectations. Need help reviewing and updating your policy? Contact Current Consulting Group’s policy experts at policy@currentconsultinggroup.com to learn more about how we can assist.
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[1] Ferguson, Dana, and Mark Zdechlik. “Poll: Majority Backs Legal Marijuana in Minnesota.” MPR News, Minnesota Public Radio, 21 July 2023, www.mprnews.org/story/2022/09/18/poll-majority-backs-legal-marijuana.
