Minnesota Legalizes Recreational Marijuana

On May 30, 2023, Minnesota Governor Tim Walz signed Chapter 63, House File 100 into law legalizing recreational marijuana in the state. Adult-use of marijuana will now be permissible starting August 1, 2023.

Recreational Protections

The bill amends Minnesota’s lawful use statute to include cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products, noting that these are lawful consumable products in Minnesota regardless of whether federal or other state law considers such items to be unlawful.

Employers may still discipline or discharge an employee for using, possessing, selling or transferring, or being impaired by any of the items during working hours, on work premises, or while operating an employer’s vehicle, machinery or equipment, or if a failure to do so would violate federal or state law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.

DATWA Amendments

The bill also amends Minnesota’s existing Drug and Alcohol Testing in the Workplace Act (DATWA) by excluding cannabis or cannabis testing from the definition of drug and alcohol testing. There is now a separate definition for cannabis testing included in the bill. Essentially the DATWA is changed to specifically call out cannabis testing wherever drug or alcohol testing is discussed.

Employers are now prohibited from requesting or requiring a job applicant to undergo cannabis testing solely for the purpose of determining the presence or absence of cannabis as a condition of employment unless otherwise required by state or federal law. Further, unless otherwise required by state or federal law, an employer may not refuse to hire a job applicant solely because the job applicant submits to a cannabis test and the results indicate the presence of cannabis. Additionally, employers cannot request or require an employee or job applicant to undergo cannabis testing on an arbitrary or capricious basis.

There are several exceptions to these new cannabis testing prohibitions including if the position is safety-sensitive, the position will involve children, vulnerable adults, or patients who receive health care services from a provider for treatment, the position requires a commercial driver’s license or requires an employee to operate a motor vehicle for which state or federal law requires testing, or any other position for which state or federal law requires testing of an applicant or employee for cannabis.

Employers are not required to permit or accommodate cannabis products outlined in the bill, or permit or accommodate the use, possession, impairment, sale or transfer of such products while an employee is working or while an employee is on the employer's premises or operating the employer's vehicle, machinery, or equipment.

The amendments also impact when an employer may enact and enforce written work rules regarding various cannabis products in addition to when an employer may discipline, discharge or take other adverse action against an employee for product use, possession, sale or transfer while an employee is working, is on the employer’s premises or is operating the employer’s vehicle, machinery or equipment.

Decriminalization and Expungements

The bill decriminalizes cannabis use and possession of certain amounts and establishes the Cannabis Expungement Board including provisions for the automatic expungement of lower-level cannabis offenses.

Medical Marijuana Protections

From a medical marijuana standpoint, the bill extends the existing protections under state law to include a person’s status as a Tribal medical cannabis program patient.

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