Minnesota’s New Cannabis Legalization Law Includes Protections for Employees

Posted by Sam Kramer

On August 1, Minnesota will become the most recent state to legalize the sale and use of cannabis for recreational purposes. This change has far-reaching impacts in several areas of the law, including workers’ rights. The following is a list of frequently asked questions regarding the changes to employment law related to legalized cannabis.

Q.     Can employers condition employment on not using cannabis outside of work?

A.     For the most part, no. The new law adds cannabis and related products to the list of “lawful consumable products” which employers cannot punish employees or job applicants for using. In other words, an employer cannot fire, discipline, or refuse to hire a person because they use cannabis outside of work. However, there are exceptions to this based on the type of job in question, so read on for more on that subject.

Q.        Can any employees be fired for using cannabis outside of work?

A.        Yes. Although the law makes it illegal to take adverse employment actions against workers who use cannabis outside of work, there are exceptions. Employers can consider a worker’s use of cannabis in employment decisions if doing so is necessary to keep a federal grant or avoid violations of federal law. Employers can also forbid certain types of employees from using cannabis, and subject people in those positions to cannabis testing. Those positions include any safety-sensitive job, police officers, firefighters, jobs interacting with children, vulnerable adults, or patients, positions requiring a commercial driver’s license, and positions for which drug testing is a requirement to receive federal funding.

Q.        Can employers condition a job offer on a negative cannabis test?

A.        For the most part, no. Although employers may continue to subject employees and job applicants to certain types of drug tests, most applicants cannot be subjected to cannabis testing, or have a job conditioned on a negative cannabis test. However, the same exceptions discussed above also apply to testing, so employees in those types of positions can be required to take a cannabis test before or during employment. All these tests are subject to the procedural requirements and privacy protections included in the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA).

Q.        Can employers prohibit possession of cannabis products at work?

A.        Yes. Employers can continue to prohibit the use, possession, sale, or distribution of cannabis (and other substances such as alcohol and illegal drugs) in the workplace. Employers can also take discipline or fire employees who violate such policies.

Q.        Can workers be fired for being impaired at work?

A.        Yes. The new law allows employers to fire or discipline workers who are impaired at work in violation of a policy to conduct reasonable suspicion testing of that employee, and fire them if they test positive for cannabis. This is similar to the law already in place for alcohol, though there may be additional challenges in applying this rule to cannabis impairment because unlike alcohol, there are no available tests that measure for active impairment.

Q.        What can an employee do if their rights are violated?

A.        Call the Minneapolis Office of MacDonald Hoague & Bayless at 612.349.2720. We represent employees whose rights are violated, including rights related to drug testing in the workplace. If your employer has violated your rights, please call us to discuss your case.


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