Since Minnesota legalized recreational cannabis use in August 2023, there should have been a significant shift in when, how, and why employers subject their workers to drug tests. Legalization resulted in changes to three state laws that deal with employment-related drug testing––the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), the Lawful Consumable Products Act (“LCPA”), and the Minnesota’s Medical Cannabis Program i.e. “Medical Marijuana.” The new amendments are clearly worded, but many employees and employers are still confused about their drug testing rights and responsibilities. For workers, understanding these new rights and protections is crucial if a drug test is demanded.
Understanding the Legal Framework
Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA)
DATWA sets strict guidelines for how employers can conduct drug and alcohol testing. The law is designed to prevent arbitrary testing to protect employees. Importantly, DATWA makes it clear that marijuana or “cannabis” is not considered a drug for testing purposes and outlines specific testing procedures for that substance.
Under DATWA, employers may require pre-employment, random, or post-incident drug and cannabis testing for safety-sensitive positions only. A safety-sensitive position is one where an employee’s routine job duties can injure the employee or others if performed when impaired. An example would be a warehouse worker operating a forklift. Employers generally can’t require drug or cannabis tests for non-safety-sensitive positions unless there’s a real, reasonable suspicion of on-the-job impairment based on observable facts or a work-related accident.
The Lawful Consumable Products Act
Even though marijuana remains illegal under federal law, the LCPA provides an extra layer of security for Minnesota workers who choose to use cannabis responsibly during non-working hours. The Act prevents employers from disciplining or terminating employees solely because they consume legal products—such as alcohol, tobacco, and cannabis, while off-the-clock.
Minnesota’s Medical Cannabis Program
Registered patients of Minnesota’s Medical Cannabis Program also enjoy additional protections. Workers who are actively enrolled in the Program and who rely on cannabis for medicinal purposes are shielded from discrimination/retaliation because of their participation in the Program. Unless there is clear evidence the employee was impaired during work hours or possessed/sold cannabis on-site, employers are not permitted to penalize them for testing positive for marijuana/cannabis.
Proving Impairment: A “Catch-22”
One of the most complex employment law issues is proving on-the-job impairment from marijuana use. Unlike alcohol––which can be immediately measured with a breathalyzer––there is currently no reliable testing to determine if an employee is impaired by marijuana on the spot. So, absent the proverbial “smoking gun”—like catching someone with a blunt red handed—firing someone for a positive test could prove legally difficult because marijuana THC metabolites can stay in the body for weeks (or months) depending on a variety of factors unique to the person. As a consequence, a positive drug test for marijuana use does not equal or prove that the employee was impaired or using at work.
How to Protect Your Rights
- Know Your Rights: Familiarize yourself with these laws by reading their actual text—along with educational legal blogs like this one.
- Document Everything: Keep records of any workplace discipline, performance reviews, test results, or communications related to your situation.
- Challenge Unfair Testing Policies Respectfully: Employers must follow strict procedures for drug testing. If they aren’t following the rules, you may have grounds to respectfully dispute their actions, but calling us first would be wise.
- Seek Legal Help: If you have been, or think you are going to be fired, disciplined, or denied employment because of legal cannabis use (or that has already happened) call us immediately.
Conclusion
The legalization of recreational marijuana in Minnesota has introduced new challenges for workplace drug testing and employee rights. While state laws offer robust protections for workers, the lack of real-time tests for cannabis impairment remains a significant hurdle for employers to actually prove that an employee was using and/or high on the job to legally justify the termination. If you encounter any issues related to drug testing or employment discipline, expert legal advice is available to ensure your rights are fully protected. Contact MSB Employment Justice today.
