What You Need to Know About Drug, Alcohol, Cannabis Testing of Employees

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With the recent legalization of recreational cannabis use by adults, the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) was also amended, including provisions authorizing drug and alcohol testing of job applicants and employees.¹ As a result, any existing employer drug and alcohol testing policies should be updated to reflect the changes in the law.

DATWA Application

DATWA applies to all employers located or doing business in Minnesota and having one or more employees. This includes public employers.

Cannabis is now excluded from the definition of “drug” for purposes of DATWA. Generally, references to “drug and alcohol testing” in the law no longer include cannabis or cannabis testing.

7 Positions for Which Cannabis Use Is Prohibited

However, for seven types of employment positions, cannabis is considered a drug under DATWA and subject to the drug and alcohol testing provisions:²

1. Safety-sensitive positions, which are jobs, including supervisory or management positions in which an impairment caused by drug, alcohol or cannabis usage would threaten the health or safety of any person
2. Peace officers
3. Firefighters
4. 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
5. 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
6. Positions of employment funded by a federal grant
7. Any other position for which state or federal law requires testing of a job applicant or an employee for cannabis

For these seven positions, employers may test for cannabis when drug and alcohol testing is allowed under DATWA.

When Employers Can Require Testing

Employers may require that an employee undergo drug and alcohol testing or cannabis testing only as authorized under DATWA.

DATWA authorizes employers to request or require testing under certain circumstances, but it does not impose a duty on employers to test.³ However, employers may have a duty under other state or federal law.

Employers may not:

• Require an employee or job applicant to undergo drug and alcohol testing or cannabis testing on an arbitrary or capricious basis
• Require a job applicant to undergo cannabis testing as a condition of employment unless required by state or federal law
• Refuse to hire a job applicant solely because the applicant tests positive for cannabis on a pre-employment test, unless otherwise required by state or federal law⁴

An employer should consider a number of policy issues when deciding whether to implement a testing program. But if an employer decides to request or require testing, the testing must be done pursuant to a written testing policy that complies with statutory requirements provided in DATWA. (See Update Existing Employer Drug-testing Policies for more information.)

Because of these changes to the law, members are encouraged to review and update their existing drug and alcohol testing policies. Members should contact their legal counsel if they have questions about the changes to DATWA.

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

¹ See 2023 Minn. Laws ch. 63
² Minn. Stat. § 181.951, subd. 9
³ Minn. Stat. § 181.951, subd. 2-7
⁴ Minn. Stat. § 181.951