Employers Need to Reevaluate Drug Testing Policies in Light of Minnesota Marijuana Legalization

The legalization of marijuana in Minnesota has created new challenges for employers, who must now grapple with how to enforce drug-free workplace policies in a state where marijuana is no longer illegal, as of August 1, 2023.

One of the biggest challenges facing employers is the fact that marijuana can stay in the body for up to 30 days. This means that an employee who uses marijuana on the weekend could still test positive for the drug on a Monday morning, even if they are not impaired at work. Under the new legislation, there is a new category under DATWA (Minnesota’s Drug and Alcohol Testing in the Workplace Act) known as cannabis testing. It’s separate and distinct from drug and alcohol testing—essentially, drug testing no longer includes marijuana products unless an exception applies. As a result, employers should review and revise their drug and alcohol prohibition and testing policies.

The main takeaway? Employers should immediately take cannabis testing off of their job applicant drug panel unless they meet one of the 7 specific exceptions which allow applicants to be tested for cannabis/marijuana:

• Safety sensitive position (a job, including any supervisory or management position, in which an impairment caused by drugs or alcohol usage would threaten the health or safety of any person)
• Peace Officer
• Firefighter
• A position requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to children, vulnerable adults and patients who receive health care services from a provider for the treatment, examination, or emergency care of a medical psychiatric or mental condition
• CDL Drivers or Drivers subject to federal testing law
• Employment funded by a federal grant
• Any other position for which state or federal law require testing of a job applicant or employee for cannabis

Additionally, for current employees who test positive for marijuana under reasonable suspicion and other drug and alcohol testing, employers are likely going to need to show impairment to take disciplinary action. Additionally, employees who fail a drug, alcohol or cannabis tests continue to have certain rights, such as the right to a second test or the right to participate in a drug treatment program.

The bottom line is that employers need to reevaluate their drug testing policies in light of Minnesota marijuana legalization. By understanding the new rules and taking steps to update their policies, employers can help to ensure that their workplaces are safe and compliant with the law.

Here are some tips for employers who are updating their drug testing policies:

• Consult with an attorney. An attorney can help you understand the new rules and ensure that your policies are compliant with the law.
• Review your job descriptions. Make sure that your job descriptions accurately reflect the duties of each position. This will help you determine whether a position is considered “safety-sensitive.”
• Train your supervisors. Your supervisors should be aware of the new rules and how to implement them. They should also be able to recognize the signs of impairment.

By following these tips, employers can help to create a safe and drug-free workplace.

To learn more about legalization and its impacts, watch the recording of the webinar and download our session slides.