Under a new Minnesota law legalizing recreational marijuana, beginning August 1, 2023, individuals 21 years of age or older may possess or transport up to two ounces of cannabis flower in public and to possess up to two pounds of cannabis flower in the individual’s private residence, among other things.

Minnesota has had a medical cannabis law since 2014 that prohibits discrimination against medical cannabis patients. Now, the state will protect all employee off-duty use of cannabis as of August 1, 2023.

Protections for Off-Duty Use

The new law amends Minnesota’s Consumable Products Act (CPA), which prohibits employers from disciplining or discharging employees (or refusing to hire applicants) who use “lawful consumable products” outside of work.

Effective August 1, 2023, the term “lawful consumable products” will specifically include cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products, as such terms are defined by Minnesota law. The law goes even further to explicitly provide that the aforementioned products are considered lawful consumable products under Minnesota law “regardless of whether federal or other state law considers cannabis use, possession, impairment, sale, or transfer to be unlawful.”

However, nothing in the newly amended CPA prohibits employers from taking action against employees who use, possess, sell, transfer, or are otherwise impaired by such lawful products while working, while on work premises, or while operating an employer’s vehicles, machines, or equipment. Similarly, employers may continue prohibiting the use of such products if failing to do so would violate another federal or state law or regulation or cause the employer to lose money or any licensing-related benefit under federal law or regulations.

The existing exceptions to the general prohibition on employer restrictions of lawful consumable products during nonworking hours outlined in the CPA will remain in place.

Updates to Drug and Alcohol Testing in the Workplace Act

Effective August 1, 2023, the law makes substantial changes to the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA), which already imposes significant restrictions on employer drug testing. The changes apply to cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products.

Generally, employers may no longer require or request pre-employment cannabis testing or refuse to hire an applicant solely because the applicant tested positive for cannabis on a pre-employment test. Similarly, employers may no longer require routine physical examination cannabis testing for most positions nor can they require cannabis testing on an arbitrary or capricious basis.

However, employers may continue pre-employment and routine physical examination cannabis testing for the following positions:

  • A safety-sensitive position (i.e., a job in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person);
  • A peace officer position;
  • A firefighter position;
  • A position 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;
  • A position 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;
  • A position of employment funded by a federal grant; or
  • Any other position for which federal law requires testing of a job applicant for cannabis.

For the above positions, employers can continue treating cannabis like other drugs for purposes of DATWA.

Employers may continue random cannabis testing for safety-sensitive positions and professional athletes subject to a collective bargaining agreement that permits random testing.

Employers may also continue reasonable suspicion cannabis testing (which includes post-accident testing) and treatment program cannabis testing (as defined by the law) for all employees.

Unless otherwise provided by state or federal law, employers are not required to permit or accommodate cannabis use, possession, impairment, transfer, or sale while an employee is working or while an employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment. However, employers may only enact and enforce rules regarding cannabis use, transfer, sale, possession, or impairment while an employee is working or while an employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment, and the policy must contain the minimum information required by DATWA.

If an employee uses, possesses, sells, transfers or is impaired by cannabis while working, on the employer’s premises, or operating the employer’s vehicle, machinery, or equipment, the employer can discipline, discharge or take other adverse action:

  • If, as a result of consuming cannabis, the employee does not possess that clearness of intellect and control of self that the employee otherwise would have;
  • If cannabis testing verifies the presence of cannabis following a confirmatory test;
  • If the employer’s written work rules for cannabis apply to such conduct and the policy complies with DATWA; or
  • If the employer is otherwise authorized or required to do so under state or federal law or regulations, or if a failure to do so would cause an employer to lose a monetary of licensing-related benefit under federal law or regulations.

However, employers should keep in mind that DATWA requires employers to offer rehabilitation in lieu of termination to employees who test positive for drugs or alcohol for the first time, including cannabis.

Given the intricacies of DATWA, employers should consult with counsel about updating their drug testing policies to comply with the changes.

A Quest Diagnostics analysis published on May 18, 2023 found that positive post-accident marijuana tests were at the highest level in 25 years in 2022. Positive post-accident tests increased to 7.3%, an increase of 9% compared to 6.7% in 2021. Positive post-accident tests have been steadily increasing since 2012, with a 204.2% increase over a ten-year period.

According to Quest Diagnostics, the increase in positive tests corresponds to the legalization of marijuana (whether for medical or recreational purposes) in most states across the country.

Despite the increase in positive marijuana tests, the overall drug positive rate based on nine million urine tests remained at 4.6%, the same as in 2021 and the highest rate since 2001. Positivity for marijuana increased 10.3%, an increase to 4.3% compared to 3.9% in 2021. Positivity for amphetamines (both prescribed and illicit) also increased 15.4%, up to 1.5% from 1.3% in 2021.

Positive rates increased in most industries, with the highest increases in the Accommodation and Food Services, Retail Trade, and Finance and Insurance industries. Positive rates increased in states with legalized recreational marijuana (5.7%) and medical marijuana (3.9%), and in those that have not legalized marijuana (3.1%), but positive rates were higher in states with legalized marijuana.

More workers in federally mandated safety-sensitive jobs tested positive for marijuana and amphetamines with positivity rates for safety-sensitive workers increasing to 0.98% for marijuana and 0.75% for amphetamines, a 14% and 8.7% increase respectively.

Post-accident positivity when compared to pre-employment tests for marijuana and cocaine was higher by 58.7% and 230%, respectively, over five years (2018 to 2022). Positivity for heroin (6-AM) in urine tests decreased in the last five years.

The U.S. Department of Transportation (DOT) published new regulations in the Federal Register on May 2, 2023 that will allow covered employers to use oral fluid testing for drugs.  While the new rules technically become effective on June 1, 2023, employers may not conduct oral fluid testing until the U.S. Department of Health and Human Services (DHHS) certifies at least two laboratories to conduct such testing (one to serve as a primary laboratory and one to serve as a split-specimen laboratory). 

DOT-regulated employers should start planning now for the use of oral fluid drug testing once it becomes available.  Among other things:

  • Employers will have to revise their written drug and alcohol testing policies, if the policy specifically states that urine is the only specimen authorized for drug testing.  Policies will need to be updated to read “urine and/or oral fluid.” 
  • If the employer authorizes oral fluid testing, the policy will need to state the testing events (e.g., pre-employment, reasonable suspicion/cause, post-accident, random, return-to-duty, follow-up) for which an oral fluid collection will occur.  An employer can use one or the other, but not both, at the beginning of the testing event.  However, if there is a problem in the collection that necessitates a second collection (e.g., insufficient quantity of urine, temperature out of range, or insufficient saliva), then a different specimen type could be chosen by the employer (i.e., through a standing order or a discussion with the collector) or its service agent (i.e., if there is no standing order and the service agent cannot contact the DER [designated employer representative]) to complete the collection process for the testing event.
  • Similarly, the policy will need to state whether oral fluid collections will be authorized for shy bladder situations and direct observation collections.
  • Oral fluid collections must be available for directly observed collections for transgender and nonbinary individuals.
  • Employees do not have the option to choose the testing methodology.
  • Employers must ensure that they have a business relationship with oral fluid collectors and labs, whether directly or through service agents.
  • Employers should have a standing order in place with each collection site, so that they know what kind of collection the employer wants performed (urine or oral fluid) and when.
  • Employers will need to use DHHS-certified laboratories for oral fluid testing.  Point-of-collection testing or instant tests are not authorized.
  • DERs are required to be available to collectors 24-7, but that is especially important now to ensure that collectors are carrying out the employer’s standing orders as well as other issues that may come up.
  • It has always been the employer’s responsibility to determine when a refusal has occurred at the collection site.  A collector may advise that something appears to be a refusal, but the final determination is the employer’s.

The state of Washington will prohibit employers from making hiring decisions based on off-duty use of cannabis or positive pre-employment drug test results that find an applicant to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. The new law (SB 5123) takes effect on January 1, 2024.

Noting that recreational cannabis was legalized in Washington in 2012 and that it should now be treated like alcohol (also a legal substance), the new law is intended to prevent restricting job opportunities based on an applicant’s past use of cannabis.

Cannabis metabolites can stay in the body for long periods of time and most drug tests will detect nonpsychoactive cannabis metabolites for up to 30 days after use. Past use of marijuana has no correlation to an applicant’s future job performance given that marijuana is a legal substance.

The law does not prohibit employers from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites. Like a similar California law that also will take effect in 2024, the Washington law contains no explanation of what is meant by “nonpsychoactive cannabis metabolites” and, presently, there are no drug tests that can distinguish between psychoactive metabolites (those that create a “high”) and nonpsychoactive metabolites. If no such drug tests are developed by January 1, 2024, Washington employers will not be able to test for marijuana on pre-employment drug tests.

The law further states that it does not prohibit employers from maintaining a drug and alcohol-free workplace and does not affect any other rights or obligations of an employer required by federal law or regulation.

Employers still may drug test for marijuana on tests other than pre-employment, such as post-accident and reasonable suspicion. Additionally, employers still may test for other drugs, as well as alcohol.

The law does not apply to applicants seeking:

  • Positions requiring a federal government background investigation or security clearance;
  • Certain law enforcement positions;
  • Certain fire department positions;
  • First responders (including 911 dispatchers) positions;
  • Corrections officers positions;
  • Positions in the airline or aerospace industries;
  • Safety-sensitive positions for which impairment while working presents a substantial risk of death. Such safety-sensitive positions must be identified by the employer prior to the applicant’s application for employment.

The law does not preempt state or federal laws requiring an applicant to be tested for drugs. This includes testing that is related to the receipt of federal funding or federal licensing-related benefits or as required by a federal contract.

It is permissible to test applicants for cannabis, as along as the test result is not provided to the employer.

Washington employers should review their drug and alcohol testing policies to ensure that they will comply with the law as of January 1, 2024.

Delaware became the latest state to legalize recreational marijuana on April 23, 2023 when the state’s Governor failed to veto two bills that allow for the legalization of marijuana, effective immediately.  Individuals who are 21 years of age and older may possess and use up to one ounce of marijuana.  It will be taxed in a manner similar to alcohol.

The law provides that nothing in the law is “intended to impact or impose any requirement or restriction on employers with respect to terms and conditions of employment including but not limited to accommodation, policies or discipline.”  This means that employers in Delaware do not have to permit marijuana use at work or during work time and still may drug test for marijuana and take disciplinary action for positive test results. 

Employers should bear in mind, however, that the use of medical marijuana still is protected under Delaware law, as it has been since 2011. The new recreational marijuana law does not change the rights of users of medical marijuana.  Specifically, the Delaware Medical Marijuana Act provides, in pertinent part, that “an employer may not discriminate against a person in hiring, termination, or any term or condition of employment . . . if the discrimination is based upon either of the following: a. [t]he person’s status as a cardholder; or b. [a] registered qualifying patient’s positive drug test for marijuana . . . unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during his hours of employment.”

Delaware joins a growing list of states that have adult-use recreational marijuana laws.  Employers should review their drug and alcohol policies frequently to ensure that they are complying with all applicable state and local marijuana laws.

Kentucky Governor Andy Beshear signed into law Senate Bill 47 on March 31, 2023 which legalizes medical cannabis in Kentucky.   Under the law, eligible Kentucky residents will be able to apply for a registry identification card as a registered qualified patient after obtaining a written certification from the individuals’ medical practitioner.  Out-of-state registry identification cards also will be accepted in some circumstances. 

Qualifying medical conditions include any type or form of cancer; chronic, severe, intractable, or debilitating pain; epilepsy or other intractable seizure disorder; multiple sclerosis, muscle spasms, or spasticity; chronic nausea or cyclical vomiting syndrome that has proven resistant to other conventional medical treatments; and post-traumatic stress disorder.  Additional medical conditions or diseases may also be approved by the Kentucky Center for Cannabis.  The use of medical cannabis does not include cultivation of marijuana by a cardholder, the use or consumption of marijuana by smoking, or the use of industrial hemp.

The employer-friendly law does not permit a cause of action against an employer for discrimination or wrongful discharge.  It does not require employers to permit or accommodate the use, consumption, possession, transfer, display, transportation, distribution, sale or growing of medical cannabis in the workplace. 

Employers may implement policies promoting workplace health and safety by restricting the use of medicinal cannabis by employees, or restricting or prohibiting the use of equipment, machinery, or power tools by an employee who is a registered qualified patient if the employer believes such use poses an unreasonable safety risk.  The law does not prohibit employers from including in any contract provisions that prohibit the use of medical cannabis by employees, nor does it prohibit employers from establishing and enforcing drug testing policies, drug-free workplaces, or zero-tolerance drug testing policies. 

A registered cardholder may not be considered under the influence of cannabis solely because of the presence of tetrahydrocannabinol metabolites.  However, if an employer determines that an employee who is a cardholder is impaired by the use of cannabis based on a behavioral assessment of impairment and a secondary step of testing for cannabis, the burden of proving non-impairment shifts to the employee to refute the findings of the employers.  An employee who is discharged from employment for consuming medicinal cannabis, working while under the influence of medicinal cannabis, or testing positive for a controlled substance will be ineligible for unemployment if such actions are in violation of an employment contract or established personnel policy.  In addition, the law does not require private health insurers, workers’ compensation carriers, of self-funded employers providing workers’ compensation benefits to reimburse a person for costs associated with the use of medicinal cannabis.

The law also restricts cardholders from consuming medical cannabis or being under the influence of medical cannabis while performing certain tasks, such as operating, navigating or being in control of an aircraft, vehicle, vessel or other device that is powered by machinery and that is or may be used to transport persons or property, among other things.

The provisions legalizing medical cannabis and the employment-related provisions of the law take effect on January 1, 2025. Kentucky employers should review the law and their policies to determine whether any policy revisions are necessary.

It’s been two years since the Marijuana Regulation and Taxation Act legalized marijuana in New York State on March 31, 2021 and prohibited employers from drug testing for marijuana (for tests that are not federally-mandated).  Because many employers still are confused about what New York law requires, here is a recap:

All Off-Duty Use of Marijuana Is Protected; Drug Testing For Marijuana Is Prohibited

New York’s Lawful Activities Law (Section 201-d of the New York Labor Law) provides that New York employers may not refuse to hire, employ, discharge, or otherwise discriminate against someone who uses cannabis lawfully while off-duty and off-premises and while not using the employer’s equipment or other property.  As a practical matter, this makes it impossible for an employer to conduct marijuana drug testing because drug tests cannot detect current marijuana impairment.  Although the New York Department of Labor issued guidance in October 2021 stating that employers may test for marijuana when there are “articulable symptoms of impairment,” the guidance went on to explain that employers may not take adverse employment actions based on a positive marijuana drug test result.  As a result, there is no point in conducting marijuana drug testing even when there is reasonable suspicion.

The marijuana drug testing prohibitions in New York do not apply to drug testing that is mandated by federal law such as the regulations of the U.S. Department of Transportation, or drug testing that is required by a federal contract.  Federal contractors should take note that the federal Drug-Free Workplace Act does not require any drug testing so that law alone is not sufficient to justify drug testing for marijuana in New York.

Employers May Prohibit On-Duty Use of Marijuana as Well as Impairment at Work

Employers still may prohibit the on-duty use and possession of marijuana as well as impairment at work.  It is important to revise drug and alcohol policies to make it clear that marijuana may not be used at any time during work hours, even meal breaks and rest breaks, and may not be used on Company premises (e.g., the parking lot at lunch time).

Employers also do not have to tolerate marijuana impairment during work time but it is much harder to address now that marijuana drug testing no longer is permitted.  Employers may conduct reasonable suspicion testing (for alcohol and drugs other than marijuana) but if the test is negative, the employer should discipline based on the observed impaired behaviors, if appropriate.

The Department of Labor guidance states that the smell of marijuana alone is not sufficient to indicate current impairment.  As a result, employers must be careful not to discipline based on smell alone.  Sending employees home to change their clothing may be appropriate for patient-facing and customer-facing positions.

Aren’t There Exceptions For Safety-Sensitive Jobs?

New York law makes no exceptions for safety-sensitive jobs or industries.  Several states, such as Connecticut, have exceptions in their recreational marijuana laws to allow employers in dangerous industries to drug test safety-sensitive employees for marijuana (e.g., police officers, firefighters, health care workers, construction workers, drivers, manufacturing plant employees, etc.)  New York State’s law contains no such exceptions. Employers should review their drug and alcohol policies carefully to ensure that they are complying with New York State law.

A Pennsylvania Court held that an employer violated the state Workers’ Compensation Act (WCA) by refusing to reimburse an employee for out-of-pocket medical marijuana expenses related to a workplace injury.  Fegley v. Firestone Tire & Rubber (Workers’ Comp. Appeal Bd.), 2023 Pa. Commw. LEXIS 26 (Commw. Ct. Mar. 17, 2023). 

Claimant was injured during his employment and received medical treatment based on those injuries.  He was prescribed narcotics for pain relief for 30 years.  His doctor later recommended that he use medical marijuana to treat his pain rather than take narcotics.  A Utilization Review determined the Claimant’s medical marijuana treatment was reasonable and necessary.  Still, the Workers’ Compensation Judge denied Claimant’s petition to be reimbursed for his medical marijuana treatment.  Claimant appealed to the Workers’ Compensation Board and then to a state court.

The court drew the distinction between “coverage” and “reimbursement” for medical marijuana expenses.  Although the state Medical Marijuana Act (MMA) states that insurance carriers are not required to provide “coverage” for medical marijuana, “coverage” is not the same as “reimbursement” for medical expenses that are reasonable and necessary under the WCA.  The court also noted that the MMA prohibits medical marijuana patients from being denied any rights or privileges because of their lawful use of medical marijuana.  For those reasons, the employer (or its insurance carrier) would be required to reimburse Claimant for his use of medical marijuana to treat a work-related injury. 

The court also reviewed whether the reimbursement of medical marijuana expenses would cause an insurance carrier to violate federal law.  The court found that when insurance carriers reimburse claimants for out-of-pocket costs for the legal use of medical marijuana they do not violate the federal Controlled Substances Act because the carriers are not manufacturing, distributing, or dispensing a controlled substance.  The employer is not prescribing marijuana but reimbursing the claimant for his lawful use of it.

(Darling Gutierrez contributed significantly to this post.)

A North Carolina federal court dismissed a former employee’s legal claims related to her use of CBD outside of work after she tested positive for marijuana and was fired by her employer.  Anderson v. Diamondback Inv. Grp., LLC, No. 1:21CV778, 2023 U.S. Dist. LEXIS 42239 (M.D.N.C. Mar. 14, 2023).    

The employer had a drug testing policy which required employees who received an offer of employment to undergo drug and alcohol testing.  At the beginning of her employment, the employee tested positive for marijuana and disclosed that she had a history of using CBD.  She was permitted to take a second drug test and tested positive for marijuana again.  Her employment then was terminated.  The employee asserted claims under the Americans with Disabilities Act (“ADA”) for wrongful discharge, failure to accommodate, and disability discrimination related to her alleged medical use of CBD.  She also alleged discrimination based on the use of lawful products during nonworking hours in violation of North Carolina’s lawful products law.

The employee claimed she took CBD products for medical reasons but she did not have a prescription or medical authorization for CBD use from a health care provider.  Rather, she provided a letter from a nurse stating that she used CBD for anxiety and muscle spasms.  The court therefore ruled that she failed to prove that she had a disability under the ADA.  Moreover, even if the employee could prove that she had a disability, she failed to prove she was wrongfully discharged.  The evidence did not show that the employee provided the employer with notice of any alleged disability—the employee’s verbal statements that she used CBD to treat her anxiety were not enough to show she had a disability. 

The court rejected the failure to accommodate claim for similar reasons, i.e., the employee did not prove that she was disabled or that she had conveyed any request for an accommodation to the employer.  

Lastly, the employee’s claim under North Carolina’s lawful products law also failed.  Although an employer cannot discriminate against an employee for use of lawful products during nonworking hours, the statute provides an exception by which it is not unlawful to restrict employees’ use of lawful products during nonworking hours if the restriction “relates to a bona fide occupational requirement and is reasonably related to the employment activities.” N.C. Gen. Stat. § 95-28.2(c)(1).  Here, the court determined the employer had drug testing requirements that were reasonably related to promoting workplace safety and productivity.  The court found no evidence to suggest the employer’s drug testing policy was enacted for an unlawful reason or purpose. 

(Darling Gutierrez contributed significantly to this post.)

Beginning January 6, 2023, motor carrier employers subject to the regulations of the Federal Motor Carrier Safety Administration (FMCSA) may conduct part of the safety performance history investigation that is required for all driver-applicants in the FMCSA Clearinghouse.  Specifically, employers are required by 49 CFR § 391.23(e)(1) – (3) to obtain information about a driver-applicant’s drug and alcohol violations that occurred in the last three years.   Previously, employers were required to contact directly all U.S. Department of Transportation (DOT)-regulated employers that employed the driver-applicant in the past three years to gather that information.  Now that the FMCSA Clearinghouse has been in existence for three years as of January 6, 2023, employers may satisfy this requirement (as to prior FMCSA-regulated employers) by conducting searches in the FMCSA Clearinghouse on and after that date. 

Employers should take note of the following important issues, however:

  • the Clearinghouse contains only information reported by FMCSA-regulated employers.  So if an applicant previously worked for an employer that is regulated by another DOT agency, such as the Federal Railroad Administration, Federal Transit Administration, Federal Aviation Administration, etc., the employer still will need to contact each of those employers directly to obtain the required information.
  • In addition, employers should be aware that they still will need to contact directly an applicant’s previous FMCSA-regulated employers for the past three years to obtain the accident history information required by 49 CFR § 391.23(d).

Motor carrier employers also are reminded to conduct the annual queries in the FMCSA Clearinghouse for each CDL driver they employ.  Employers can log in to the Clearinghouse to see whether their annual queries are due.