Earlier this year, Minnesota became the 23rd state to legalize cannabis for adult recreational use. The law officially took effect on August 1, 2023 and has left contractors wondering what they can and cannot do to protect themselves, and their employees, following the change. Some of the most pressing concerns facing contractors are discussed below.
1. Pre-Employment Testing for Cannabis is Prohibited.
Minnesota’s cannabis law prohibits employers from conducting pre-employment drug testing to screen for cannabis as a condition of employment. There are exceptions, however, for individuals in “safety-sensitive” positions and those regulated by federal law, for example, positions that require the employee to possess a commercial driver’s license or otherwise require an employee to operate a motor vehicle. “Safety-sensitive position” is defined as “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.” While it remains to be seen whether Minnesota courts will declare all positions on construction job sites as “safety-sensitive,” it seems unlikely. In Dix et. Al v. Casey’s General Stores, Inc., the Iowa Supreme Court held that employers were required to assess safety-sensitive positions on a job-by-job basis, rather than making blanket designations of groups of employees. Until the Minnesota Supreme Court says otherwise, contractors can protect themselves by erring on the side of caution and avoiding blanket pre-employment testing for cannabis.
2. Construction Workers Cannot be Terminated Because They Test Positive for Cannabis.
While Minnesota’s cannabis law does not prohibit testing for cannabis during the course of employment, it does prohibit an employer from taking any action against an individual for off-duty cannabis use. This seems simple enough, until one realizes that THC is detectable in test samples for a month or more after use. In other words, if a laborer tests positive for THC, the test is not definitive proof that they were under the influence at the time of the test; rather, they could have used cannabis while off-duty, even weeks prior. As a result, even if a laborer or journeyman was behaving in a way that would give rise to termination, a positive test for THC opens contractors up to a claim of employment discrimination (whether or not such claim would be justified) if the individual is terminated.
3. Construction Workers Can Still be Terminated for Unsafe Behaviors.
Although testing for THC gives rise to potential discrimination claims, contractors can still terminate an employee if the individual is behaving in a way that violates the contractor’s policies. Let’s say, for example, that a laborer is behaving in a way that makes the jobsite unsafe (for example, they are driving a forklift in a way that endangers others on the jobsite), and the contractor reasonably suspects that the individual may be under the influence of cannabis. The contractor can legally terminate the laborer as long as the laborer’s behavior is grounds for termination in any instance. Punishing behavior, rather than subjecting the laborer to a drug test first, protects the employer from the possibility of a discrimination suit under Minnesota’s cannabis law.
4. Contractors Can Prevent Possession of Cannabis While on a Jobsite Only if the Contractor’s Written Policies Prohibit It.
Contractors are not required to permit the possession of cannabis on a jobsite. However, if a contractor seeks to discipline or terminate an individual for possession of cannabis on a jobsite, there must be an applicable written policy. Contractors should have any such policy reviewed by an attorney prior to enactment.
