Update Existing Employer Drug-testing Policies

Although adult recreational use of cannabis was recently legalized in Minnesota, employers may still prohibit the impairment, use and possession of cannabis at work.

Specifically, employers are not required to permit or accommodate an employee’s use, possession, impairment, sale or transfer of cannabis flower, cannabis product, lower-potency hemp edible or hemp-derived consumer products (collectively “cannabis”) while the employee is working, while on the employer’s premises or while operating the employer’s vehicle, machinery or equipment.¹

Policy Requirements

When an employer enacts written work rules prohibiting the above conduct, the written policy must contain the minimum information required under the Drug and Alcohol Testing in the Workplace Act (DATWA).² Any written drug and alcohol testing or cannabis testing policies must also include this required information.³

Generally, cannabis and marijuana are no longer considered a drug under DATWA, and drug and alcohol testing does not include cannabis testing under this law. Therefore, any existing drug and alcohol testing policies likely need to be updated to incorporate the new rules regarding cannabis testing and use. (See What You Need to Know About Drug, Alcohol, Cannabis Testing of Employees for more information.)

DATWA requires written drug and alcohol or cannabis policies to contain all of the following:

1. Employees or job applicants subject to testing under the policy
2. Circumstances under which drug or alcohol and cannabis testing may be requested or required
3. Right of an employee or job applicant to refuse to undergo drug and alcohol testing and cannabis testing and the consequences of refusal
4. Any disciplinary or other adverse personnel action that may be taken based on a confirmatory test verifying a positive test result on an initial screening test
5. Right of an employee or job applicant to explain a positive test result on a confirmatory test or request and pay for a confirmatory retest
6. Any other appeal procedures available⁴

This is the minimum information required by DATWA, but an employer can provide more information in its policy.

If an employer enacts and enforces a policy, as a best practice, the policy should clearly specify any rules prohibiting cannabis use, possession and impairment while an employee is working or operating the employer’s vehicles or machinery.

The policy should also clearly state what discipline or other adverse personnel action may be taken for violating any rules prohibiting use, impairment or possession of cannabis.⁵

Notice Requirements

Written notice of the policy must be provided to all affected employees and to employees previously not affected who transfer to an affected position.

Written notice of the policy must also be provided to a job applicant upon hire and before any testing if the job offer is contingent on the applicant passing drug and alcohol or cannabis testing.

Employers are also required to post notice in an appropriate and conspicuous location on the employer’s premises that the employer adopted the policy and that copies of the policy can be inspected during regular business hours in the employer’s personnel office or other suitable location.

Members are encouraged to review and update their existing drug and alcohol policies to ensure they are consistent with the new law. Members are encouraged to contact their legal counsel if they have questions about DATWA and testing policies.

Additional resources related to the new cannabis laws will be available in the future from MCIT.

¹ Minn. Stat. § 181.952, subd. 3(a).
² Minn. Stat. § 181.952, subd. 3(b).
³ See Minn. Stat. § 181.951.
⁴ Minn. Stat. § 181.952, subd. 1.
⁵ See Minn. Stat. § 181.953, subd. 10a(3).