Legalization and Retail Sale Will Have Major Impact on Life and Business
The 2023 Minnesota Legislative Session concluded on May 23. Since then, we’ve been exploring the impact on small business owners and our state in general.
In part one, we looked at tax and fee hikes that will impact small businesses, consumers, and others. Part two discussed new employer mandates that will increase costs and the regulatory burden for nearly every small employer. Part three examined new laws and mandates in the energy, environment, and healthcare areas.
Is there a legislative issue you want to know more about? Email NFIB Minnesota state director John Reynolds at [email protected].
In part four, we’ll look at what small business owners should know about Minnesota’s complex marijuana legalization law. The bill was authored by state Rep. Zack Stephenson (Coon Rapids), state Sen. Lindsey Port (Burnsville), and others. The goal of proponents was for marijuana possession and use to be treated largely the same as alcohol.
Read the complete law here: Chapter 63 – MN Laws. Read more on the state’s cannabis page.
The law has many components, from decriminalization to establishing regulations for retail sale to expungement of past marijuana convictions, but we’ll focus on key dates to know and the impact on workplace drug testing.
Key Dates:
July 1, 2023: The Minnesota Office of Cannabis Management is established. This new state agency will oversee implementation and regulation of the marijuana legalization law. Cultivation and possession of cannabis and related products becomes legal, although certain criminal penalties remain in place and retail sale is not yet legal.
August 1, 2023: Many of Minnesota’s criminal restrictions on the possession and consumption of marijuana are repealed, effectively decriminalizing marijuana. It becomes legal for a person 21 or older to possess two ounces or less of cannabis and eight grams or less of cannabis concentrate anywhere.
It also becomes legal to possess up to two pounds of cannabis flower or cultivate up to 8 marijuana plants (no more than four mature plants at a time) at a private residence.
New restrictions on workplace drug testing take effect.
May 2024 (est.): Applications for marijuana retail sale licenses begins.
January 2025 (est.): Retail sale of marijuana begins.
Changes to Workplace Drug Testing
Beginning August 1, 2023, Minnesota’s workplace drug testing laws will change substantially.
The Society of Human Resources Management (SHRM) explains the major changes here and the relevant portions of the law can be found in 2023 Minn. Laws Chapter 63, Art. 6, Secs. 26 to 42.
As explained by SHRM, employers can test employees in the following positions for cannabis impairment:
- Safety-sensitive positions (i.e., a job in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person).
- Positions requiring 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 requiring 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.
- Other positions for which federal law requires testing of a job applicant for cannabis.
Employers can also continue to require testing for cannabis (Minn. Stat. 181.951):
- at random for employees in safety-sensitive positions (Subd. 4);
- based on reasonable suspicion that the employee is under the influence, has violated the employer’s written work rules prohibiting the use, possession, sale or transfer of drugs, alcohol, or cannabis, has sustained a personal injury or caused injury to another employee, or has caused a work-related accident or operating machinery, equipment or vehicles involved in a work-related accident (Subd. 5); and
- for employees referred by the employer for substance use disorder treatment or participating in a substance use disorder treatment program (Subd. 6).
An employer may discipline, discharge or take other adverse personnel action against an employee for cannabis use, possession, impairment, sale, or transfer while the employee is working, is on the employer’s premises, or is operating the employer’s vehicle, machinery, or equipment when (Minn. Stat. 181.953, Subd. 10a):
- the employee does not possess the clearness of intellect and control of self that the employee otherwise would have;
- cannabis testing verifies the presence of cannabis following a confirmatory test;
- an employee violates the employer’s written work rules for cannabis, provided the rules are in writing and contain the minimum information required by Stat. 181.952; or
- as otherwise authorized or required under state or federal law or regulations, or if a failure to take such action would cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.
Except for the positions identified above (and also as found in Laws 2023 Chapter 63, Article 6, Sec. 37), employers cannot:
- request or require a job applicant to undergo cannabis testing solely for the purpose of determining the presence of cannabis unless required by state or federal law;
- request or require an employee or applicant to undergo testing on an arbitrary or capricious basis;
- refuse to hire a job applicant solely because of a positive cannabis test, unless required by state or federal law; or
- refuse to hire a job applicant or discipline or discharge an employee because the person engages in or has engaged in the use of lawful consumable products, which now includes cannabis and related products.
Workplace drug and alcohol testing is a complex and ever-changing area of law, especially once Minnesota’s marijuana legalization law takes effect.
If you have questions about workplace testing regulations, please feel free to reach out and we’ll do our best to get answers: [email protected] or 651-293-1283.
