Recently the State of Minnesota passed a bill legalizing the recreational use and possession of marijuana that went into effect August 1, 2023. This has impacted many of our clients’ current employee drug testing and usage policies and subsequent workplace safety. As your independent insurance agent, we would like to provide you with resources that help mitigate risk involving this topic.
In the state of Minnesota, employers have the option to implement drug and alcohol testing policies, but they must adhere to strict guidelines outlined in the Medical Cannabis Act (MCA) and the Drug and Alcohol Testing in the Workplace Act (DATWA).
In this comprehensive article, we delve into Minnesota’s drug testing landscape to help employers navigate these laws effectively. The information below provides a general overview of these restrictions and of the requirements that apply under Minnesota law for employers that choose to conduct workplace testing.
Medical Cannabis Act: Balancing Medical Needs and Workplace Safety
The Medical Cannabis Act (MCA) of Minnesota provides certain individuals, referred to as “qualified patients,” with the right to use marijuana for medical purposes. Under the MCA, employers are prohibited from taking adverse employment actions based solely on an individual’s status as a qualified patient or a positive marijuana test result, if the individual is a qualified medical marijuana patient. This means that employers cannot terminate, reject job applicants, or impose penalties solely due to a positive marijuana test result.
However, it’s important to note that the MCA’s employment protections do not extend to situations where the employer’s actions would violate federal law or regulations or result in the loss of federal benefits. Employers retain the right to take action against employees or applicants who are impaired by or possess marijuana in the workplace.
Drug and Alcohol Testing in the Workplace Act: Establishing Clear Guidelines
The Drug and Alcohol Testing in the Workplace Act (DATWA) lays down the framework for drug and alcohol testing policies in Minnesota workplaces.
If an employer chooses to implement testing, it must follow these guidelines:
- Written Policy Requirements
- Specify who is subject to testing (employees or job applicants)
- Describe the circumstances under which testing may be required
- Explain the rights of employees/applicants to refuse testing and the consequences of refusal
- Outline disciplinary actions in case of a positive confirmatory test
- Provide information about the appeals process and procedures to contest positive results
- Notice Requirements
- Distribute copies of the policy to affected employees upon adoption and to applicants upon job offers
- Display notices about the testing policy in conspicuous locations on the premises
- Allow individuals being tested to review the written policy before testing
- Testing Requirements
- Employ a licensed, accredited, or certified laboratory for testing
- Maintain reliable chain-of-custody procedures
- Cover the costs of initial screening and one confirmatory test following a positive result
- Notify individuals of positive results and allow them to explain
- Types of Testing Allowed Under DATWA
- Pre-employment Testing: For job applicants who have received a contingent job offer and when the testing policy applies uniformly to all applicants in the same position.
- Routine Testing: Part of a routine physical examination, occurring no more than once a year, with a two-week advance notice.
- Random Selection Testing: For employees in “safety-sensitive positions,” without discretion to exempt any employee from testing.
- Reasonable Suspicion Testing: Based on reasonable suspicion of drug or alcohol use, impairment, injury, or violation of the employer’s rules.
- Treatment Program Testing: When the employee is referred for chemical dependency evaluation or participating in a treatment program under an employee benefit plan.
Enforcement and Compliance
If an employee or applicant believes that an employer has violated DATWA, they have the right to file a civil lawsuit. Courts may order employers to pay monetary damages, attorneys’ fees, and court costs for violations. In some cases, courts can also mandate hiring or reinstating affected individuals.
Understanding Minnesota’s drug testing laws is essential for employers who wish to create a safe and compliant work environment. The intersection of employee rights, medical needs, and workplace safety necessitates careful navigation of the laws outlined in the MCA and DATWA. By adhering to these laws and creating clear, well-defined drug and alcohol testing policies, employers can strike the right balance between employee well-being and maintaining a productive workforce.
It is our conservative recommendation that our clients hold employees to the same standard that OSHA holds for safety sensitive positions. According to Minnesota statutes, that definition means, “A job, including any supervisory or management position, in which an impairment caused by drug or alcohol usage would threaten the health or safety of any person.” We also encourage you to watch this webinar series from one of our industry partners, AssetHR, for more in-depth information about how the new legislation will impact your business’s HR department.
Should you have further questions, please contact our office and we will be happy to assist you!
Disclaimer: This guide is provided for general informational purposes only and is not intended as legal advice. Employers should consult legal counsel for advice specific to their circumstances.