What Minnesota’s Legalization of Recreational Marijuana Means for Businesses

On May 30, 2023, Minnesota enacted a new law (HF 100) that legalizes recreational marijuana for adults aged 21 and older in the state. The new law, which also adds new employment protections for both medical and recreational marijuana users, went into effect on August 1, 2023.

Employers should become familiar with all applicable laws before implementing or enforcing any drug testing or other workplace policies regarding employee marijuana use. After all, marijuana legalization is an active and rapidly evolving compliance landscape. Because of this, employers should regularly monitor state legislation and government agency resources for any changes that may affect their businesses.

Overview of Employer Impact

The new law does not require employers to permit or accommodate an employee’s use, possession, impairment, sale or transfer of marijuana at work or while the employee is operating the employer’s vehicle, machinery or equipment, nor does it limit employers’ ability to enforce policies prohibiting these actions. However, it does require employers to establish these policies in writing prior to any marijuana testing. It also prohibits these policies from banning lawful marijuana use outside of work, except where compliance would violate a federal rule or result in a licensing- or monetary-based loss.

Prohibition Against Applicant Testing

The new law also prohibits employers from requesting or requiring an applicant to undergo marijuana testing as a condition of employment unless a state or federal law requires it. Exceptions are also available for certain safety-sensitive positions and other specified roles, such as firefighters and peace officers.

Lawful Consumable Product

The new law adds marijuana to an existing prohibition against adverse employment actions based on an individual’s use or enjoyment of “lawful consumable products” outside of work. In general, this means employers may not take any adverse actions against an employee based solely on a positive test for marijuana. Employers that violate this prohibition may be ordered to pay the greater of either the actual damages resulting from the violation or a civil fine of $100 plus attorney’s fees.

Frequently Asked Questions

Can employers prohibit marijuana use during rest and meal breaks?

Yes. Virtually all states with legalized marijuana laws allow employers to prohibit marijuana use during working hours, which usually include rest and meal breaks, even if employees leave the worksite during their breaks.

Can employers prohibit marijuana use while employees are on call?

Yes. The time employees are on call is usually considered working hours, during which employers may place restrictions on their employees, even if they are not actually performing any work.

Can employers prohibit employees from possessing marijuana at work?

Yes. Virtually all states with legalized marijuana laws allow employers to prohibit employees from bringing marijuana onto business property.

Can employers prohibit employees who work at home from using marijuana?

This may depend on how each state’s labor or other laws define a workplace. For example, the state of New York’s labor laws do not consider an employee’s home that is being used for remote work to meet the definition of a “worksite,” which means that employers generally cannot prohibit employees from using marijuana at home. However, employers can take adverse actions if their employees exhibit articulable symptoms of impairment during working hours.

Can employers discipline or terminate employees for the use of legalized marijuana products while on the job?

Yes. Virtually all states with legalized marijuana laws allow employers to prohibit and discipline employees for marijuana use at work or during working hours. Even in states where employer testing for marijuana is severely restricted, employers are not prohibited from taking adverse actions against employees who are under the influence of marijuana at work.

What kind of evidence is necessary to establish that employees were under the influence or impaired by marijuana at work or during working hours?

First, employers should always be cautious before assuming employees are impaired or under the influence of marijuana, as symptoms related to the use of this substance could also be an indication of certain disabilities protected by federal, state or local laws. Thus, even if employees exhibit obvious symptoms of impairment, employers should not rush to judgment. In general, employers should be able to point to specific, articulable symptoms of marijuana use that decrease or lessen employees’ performance of their tasks or duties, or otherwise interfere with employers’ obligations to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws. Also, even if employees do not exhibit specific, articulable symptoms of impairment, employers may always discipline those who use marijuana during working hours or while on or using business property.

Can employers prohibit all marijuana use outside the workplace?

In some states with legalized marijuana laws, yes. However, in most states with legalized marijuana laws, no.

Can employers drug test employees for marijuana?

In general, yes, except in the states of New York, Nevada and New Mexico. However, even if no legislation restricts marijuana testing, employers in states with legalized marijuana laws may want to consider excluding marijuana from workplace drug testing of employees in non-safety-sensitive positions.

Can employers drug test employees for marijuana if federal legislation allows for drug testing?

In many states, no. Most states with legalized marijuana and related laws have restrictions on workplace drug testing, and employers must follow these laws even if unrestricted testing is otherwise allowed or not prohibited under federal legislation. However, employers in all states may test for marijuana if it is required under federal or state laws or if these laws make it a mandatory requirement for any licensing or certification for the position at hand.

This Legal Update is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. ©2023 Zywave, Inc. All rights reserved.