Protection for cannabis use away from work
Minnesota’s adult-use cannabis law provides certain protections for job applicants and employees if they use cannabis (including cannabis products, lower-potency hemp edibles, and other hemp-derived products) away from work during non-work hours.
However, the law allows an employer to discipline, fire, or take other adverse employment actions against any employee for the use, possession, sale, or transfer or cannabis, cannabis product, lower-potency hemp edible, or hemp-derived consumer product, or for being impaired as a result of the substance’s use if it occurs during work hours on work premises, or while operating an employer’s vehicle, machinery, or equipment if:
- As a result of consuming the substance, the employee does not possess that clearness of intellect and control of self that the employee otherwise would have.
- Cannabis testing verifies the presence of cannabis or another prohibited item, which must be verified by a positive confirmatory test.
- The employee violates the employer’s written work rules for cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products and cannabis testing, provided that the rules meet certain statutory guidelines.
- The employment action is authorized or required under state or federal law or regulations, or a failure to take the employment action would cause an employer to lose a monetary or licensing-related benefit under federal law or regulation.
Employer drug testing
Unless the employer is otherwise required to do so by state or federal law (see below for state law exceptions), an employer can no longer require or request a job applicant to undergo pre-employment cannabis-specific testing or refuse to hire an applicant solely because the person tests positive for cannabis as a result of an authorized pre-employment drug test. Also, employers may not request or require an employee or job applicant to undergo testing for cannabis on an arbitrary or capricious basis.
Exceptions for pre-employment or routine testing: An employer may continue pre-employment or routine cannabis testing for the following:
- Safety-sensitive positions - a job (including supervisory or management positions) in which an impairment caused by drug, alcohol or cannabis use would threaten the health or safety of any person
- Peace officer positions
- Firefighter positions
- Positions requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to:
- 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.
- 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.
- Positions of employment funded by a federal grant.
- Positions for which state or federal law requires cannabis testing of an employee or job applicant.
NOTE: Employers may request or require employees to undergo cannabis testing on a random selection basis only if the employees are either employed in safety-sensitive positions or the employees are professional athletes subject to a collective bargaining agreement that permits such testing.
- Employers should consult with legal counsel to ensure that their drug-testing policies are legally compliant with evolving cannabis law.
- Employers may continue treatment program cannabis testing.
- Employers may request or require that an employee undergo cannabis testing and drug and alcohol testing if the employer has a reasonable suspicion the employee:
- Is under the influence of drugs or alcohol at work.
- Has violated the employer’s written work rules prohibiting the use, possession, sale, or transfer of drugs, alcohol, or cannabis (including cannabis products, lower-potency hemp edibles, and hemp-derived consumer products) while the employee is working or while the employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment, provided the rules are in writing and contained in the employer’s written cannabis testing or drug and alcohol testing policy.
- Has sustained a personal injury or caused another employee to sustain an injury.
- Has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.
For medical cannabis patients
Unless a failure to do so would violate state or federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, firing, or any term or condition of employment or otherwise penalize a person if the discrimination is based on:
- The person’s status as a patient enrolled in the Minnesota Medical Cannabis registry program.
- A patient’s positive drug test for cannabis or metabolites, unless the patient used, possessed, sold, transported, or was impaired by medical cannabis flower or medical cannabis product while on work premises, during work hours, or while operating the employer’s vehicles, machinery, or equipment.
An employee who is required to undergo drug testing may present verification of enrollment in the state medical cannabis program.