On Tuesday, May 30, 2023, Governor Walz signed HF 100, legalizing recreational cannabis in the state of Minnesota. Adults 21 and older are permitted to use and possess up to two ounces of cannabis in public beginning August 1, 2023. Possession of up to two pounds of cannabis is permitted in the home and limited home grow of up to eight plants is also permitted. While HF 100 also permits commercial cannabis sales, it did not include guidance for the regulatory market. A new state agency, the Office of Cannabis Management, is tasked with drafting and approving rules for the commercial sales market. The state has set a goal to begin accepting applications for recreational cannabis retail shops in May 2024 and to potentially begin sales in January 2025.
What Does HF 100 Say About Medical Cannabis and the Workplace?
HF 100 includes some updated guidance for employers pertaining to medical cannabis. Unless a failure to do so would violate federal or state law/regulations, or cause the employer to lose a monetary or licensing-related benefit under federal law/regulations, an employer may not discriminate in hiring, termination, a condition of employment, or penalize an individual based upon:
- Their status as a patient enrolled in the state medical cannabis registry program.
- Their status as a Tribal medical cannabis program patient.
- A medical cannabis patient’s positive drug test for cannabis components/metabolites, unless the individual in question used, possessed, sold, transported, or was impaired by medical cannabis flower or product on work premises, during work hours, or while operating the employer’s machinery, vehicle, or equipment.
A medical cannabis patient that is required to undergo workplace drug testing as part of the state drug testing law may present their registry verification or Tribal medical cannabis program enrollment as part of their explanation for a positive test result (see mandatory law for full details). This is effective the day following final enactment of HF 100.
What Does HF 100 Say About Recreational Cannabis and the Workplace?
An employer may not:
- Refuse to hire an applicant because they engage in the use of lawful consumable products (including cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products) as long as said use/enjoyment occurs off the premises of the employer and during nonworking hours.
- Discipline or discharge an employee because they engage in the use of lawful consumable products (including cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products) as long as said use/enjoyment occurs off the premises of the employer and during nonworking hours.
- Request or require an applicant to be tested for cannabis solely for the purpose of determining the presence/absence of cannabis as a condition of employment unless otherwise required by state or federal law.
- Refuse to hire an applicant solely because they submitted to an authorized cannabis test or drug and alcohol test and returned a positive result indicating the presence of cannabis, unless otherwise required by state or federal law.
- Require or request an applicant or employee to undergo cannabis testing on an arbitrary or capricious basis.
An employer may:
Discipline, discharge, or take adverse action against an employee for the use, possession, impairment, sale, or transfer of cannabis flower, cannabis product, lower-potency hemp edible, or hemp-derived consumer product while the individual is working, on the employer’s premises, or operating the employer’s vehicle, machinery, or equipment if:
- As a result of said consumption, the individual does not possess clearness of intellect and control of self that they would otherwise have.
- A cannabis test returns a positive result following a confirmatory test.
- Conditions provided in the employer’s written work rules are met, provided that the rules are in a policy that meets the minimum information required by state law.
- Authorized or required under state or federal law/regulations, or if a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or regulation.
HF 100 specifically states that it is not meant to limit an employer’s ability to discipline/discharge an employee for the use, possession, impairment, sale, or transfer of cannabis flowers, products, lower-potency hemp edibles, or hemp-derived consumer product during work hours, while on work premises, while operating an employer’s vehicle, machinery, or equipment, or if a failure to do so would violate federal regulations or state laws or cause the employer to lose a monetary or licensing-related benefit. Additionally, all situations where cannabis testing is permitted as outlined in HF 100 must also comply with the general mandatory drug and alcohol testing law in the state.
Employers are not required to permit/accommodate the use, possession, impairment, sale, or transfer of cannabis flowers, products, lower-potency hemp edibles, or hemp-derived consumer product(s) while an employee is working, on the employer’s premises, or operating the employer’s vehicle, machinery, or equipment unless otherwise provided by state or federal law. Employers can only enact/enforce written work rules prohibiting the use, possession, impairment, sale, or transfer of cannabis flower, cannabis product, lower-potency hemp edibles, and hemp-derived consumer products while an employee is working, on the premises, or operating the employer’s vehicle, machinery, or equipment in a written policy that contains the minimum information required by HF 100.
HF 100 Lists a Number of Exceptions to Cannabis Testing Restrictions
Under HF 100, there are a number of positions for which cannabis and cannabis metabolites are to be considered a drug, meaning that individuals in these positions are subject to drug and alcohol testing provisions outlined in the general mandatory drug and alcohol testing law (sections 181.950-181.957) rather than the specific cannabis testing provisions listed in HF 100. The following positions are exempt from HF 100:
- A safety-sensitive position as defined in section 181.950, subdivision 13.
- A peace officer position, as defined in section 626.84, subdivision 1.
- A firefighter position, as defined in section 299N.01, subdivision 3.
- Positions requiring face-to-face care, training, education, supervision, counseling, consulting, 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.
- Positions requiring an employee to operate a motor vehicle for which law (state or federal) requires drug or alcohol testing.
- Positions funded by a federal grant.
- Any other position for which cannabis testing is required by state or federal law.
General Drug Testing Updates
In addition to some cannabis-specific updates in the law, HF 100 includes some updates to general workplace drug testing statutes to add in language specifying that the provisions apply not only to drug and alcohol testing, but also to cannabis testing. Employers should review HF 100 carefully and update their policy language to include references to cannabis testing in addition to drug and alcohol testing in order to comply with these updates.
- Recreational cannabis possession is permitted as of August 1, 2023, with general sales anticipated to begin in 2025.
- HF 100 includes specific guidance for employers, including limiting when a cannabis test can be performed.
- HF 100 also includes a number of positions for which the restrictions on cannabis testing do not apply.
Unless otherwise noted, generally, most parts of HF 100 are effective March 1, 2025. Impacted employers should review and update their policies accordingly or risk noncompliance. The full text of HF 100 can be viewed at the following link:
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