Changes to Minnesota’s Drug Testing Scheme

Following the lead of some other state employer restrictions we have previously discussed, such as California’s AB-2188 and D.C.’s Cannabis Protection Act, Minnesota has now amended its Consumable Products Act and Drug and Alcohol Testing in the Workplace Act to protect off-duty cannabis use.

Minnesota’s amendment includes updates to Minnesota’s drug testing scheme to protect off-duty cannabis use took effect on August 1, 2023, as well as updates to the Minnesota Drug and Alcohol Testing in the Workplace Act by excluding cannabis from the definition of “drug,” among other things.

Effective August 1, 2023, and subject to certain exceptions, it is generally unlawful for a Minnesota employer to:

• Require or request any type of pre-employment test for cannabis.
• Refuse to hire an applicant solely because the applicant tested positive for cannabis on a pre-employment test.
• Require cannabis testing on an arbitrary or capricious basis.

The Amendment Still Leaves Room for Employer Action

Minnesota employers are not restricted from regulating off-duty cannabis use in all circumstances under the new amendment. The amendments to Minnesota’s drug testing scheme are intended to protect employees. The changes are not intended to prohibit employers from taking necessary lawful action when employees are reasonably suspected of possessing or using cannabis during work hours or on workplace premises.

Some situations allow lawful regulation for hiring based on cannabis use, depending on the role of the job and the context defined by the amendment. Exceptions to the cannabis testing prohibitions include hiring for the following positions:

• Positions that are safety-sensitive
• Peace officers
• Firefighters
• Positions that require face-to-face care, training, education, supervision, counseling, consultation, 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.
• Positions requiring a commercial driver’s license or 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
• Any other position not included above for which state or federal law may require testing of a job applicant or an employee for cannabis.

Additionally, similar to California’s AB-2188, Minnesota’s amendment does not apply to permitting any employees to possess, use, or be impaired by cannabis while on the job, as outlined below.

An employer may request or require an employee to undergo cannabis testing and drug and alcohol testing if the employer has a reasonable suspicion that the employee:

(1) is under the influence of drugs or alcohol;

(2) has violated the employer’s written work rules prohibiting the use, possession, sale, or transfer of drugs or alcohol, cannabis flower, cannabis products, lower-potency hemp edibles, or 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 work rules are in writing and contained in the employer’s written cannabis testing or drug and alcohol testing policy;

(3) has sustained a personal injury, as that term is defined in section 176.011, subdivision 16, or has caused another employee to sustain a personal injury; or

(4) has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.

To read the complete list of restrictions and employee protections related to the amendment to Minnesota’s drug testing scheme, take a closer look here.

Employers in Minnesota may want to review these changes to ensure hiring processes and employer action follow the guidelines laid out in the recent amendments. Similar laws could affect others outside of Minnesota. Consult your legal team to understand how this might require changing your current drug testing policy.