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A newly effective law allows persons 21 years and older in Minnesota to engage in recreational use of Marijuana. Employers, for the most part, can no longer test job applicants nor employees for Marijuana, and employers may not discipline employees for the use of Marijuana outside of the workplace. But if an employer has reasonable suspicion that the employee is under the influence of marijuana in the workplace, therefore violating employment policy, then the employer may employ reasonable suspicion testing.

Reasonable Suspicion testing may be employed if (1) the employer has reasonable suspicion that the employee is either under the influence of marijuana, (2) there is reasonable suspicion that the employee violated the written work rules that prohibit the use, possession, sale, or transfer of marijuana, (3) the employee sustained a personal injury or caused another person to sustain an injury or (4) the employee caused a work-related accident, or was operating or helping to operate machinery involved in the accident. While Minnesota law, does not define reasonable suspicion for use of cannabis, the Substance Abuse and Mental Health Services Administration did. They defined reasonable suspicion as an employee who has “documented pattern of unsafe work behavior.”

Employers may prohibit being under the influence at work as well as prohibit the distribution or possession of any cannabis product in the workplace. Employers should, however, ensure their policies specifically state that “cannabis” is not permitted in the workplace, rather than using the term “drug” since the definition of cannabis has changed in parts of Minnesota statues.

Not all jobs are exempt from the Drug-Testing changes due to safety risks and federal funds. Some positions that still allow testing for marijuana include police officers, firefighters, teachers (or anyone in a position who provides face-to-face education, counseling, or similar activities to children, vulnerable adults, or healthcare patients), jobs which require commercial driver’s license, positions funded by federal grants, positions where it is federally required to employ pre-employment cannabis testing, and the last, a very broadly defined term, is safety-sensitive positions. The term “safety-sensitive position” is defined, as “a job, including any supervisory or management position, in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person,” leaving much room for interpretation. In each of these instances, the employers must inform their employees that they will continue to do regular drug testing or begin to drug test.

While marijuana is now legal for recreational use in Minnesota, it is important to identify if your business or profession is exempt from Drug-Testing changes. The new laws exclude many jobs from cannabis-testing, but the language leaves ample room for interpretation. Consult a qualified attorney with questions about the new law.

Updated Minnesota Marijuana Laws can be found here: https://www.revisor.mn.gov/laws/2023/0/Session+Law/Chapter/63/

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