333 South Seventh Street Suite 2600 Minneapolis, MN 55402
Category | Briefing Papers
Julia is a shareholder of the firm’s Construction Law Department. She can be reached at 612.359.7622 or email@example.com.
Minnesota Democrats have pledged that they will pass legislation allowing recreational marijuana this session with their new majorities in both chambers of the state legislature. This commitment marks the latest development in Minnesota’s ongoing progression toward marijuana use legalization, and the remarkably quick change in the law poses special risks and challenges for contractors who operate in an environment where operational, safety, and productivity concerns are paramount.
Current State of the Law in Minnesota
Prior to last summer, Minnesota employers who have policies in place for pre-employment drug testing or drug testing of current employees were aware of protections for those employees who were enrolled in the Department of Health Patient Registry Program for medical marijuana. Under the laws related to that program, an employer cannot discriminate against a person enrolled on the registry in hiring, termination or any other employment decision upon a positive drug test for cannabis unless that individual was impaired or intoxicated by cannabis at his place of employment during his work hours.
Last summer, the Minnesota Legislature threw employers a new curveball when it legalized certain forms of cannabis for recreational use. The law, which took effect in July 2022, allows anyone ages 21 and older to buy edibles and beverages containing up to 50 milligrams of hemp-derived tetrahydrocannabinol or THC per package. Unlike other states which have previously legalized cannabis, the Minnesota Legislature frankly didn’t allow employers the time—much less provide any guidance—as to how or whether their pre-existing drug testing policies comported with the new law.
Another complication for employers under the Lawful Consumable Products Act passed last summer is that the statute protects consumption of a lawful consumable product during an employee’s non-work time. The statute defines a “lawful consumable product” as a product whose use or enjoyment is lawful, and specifically includes food, alcoholic or non-alcoholic beverages, and tobacco. It is silent as to whether THC edibles are protected in the definition of “lawful consumable product” which further complicates an employment situation when an employee receives a positive drug test for THC.
Anticipated Changes and Challenges
It is fully expected that the Minnesota Legislature will broaden the legalization of marijuana this session beyond the initial legalization of THC edibles and beverages which was passed last summer. In the construction industry in particular, the passage of any broader legislation raises a host of issues including the following:
Precedent from Other Jurisdictions
Given the quick changes to Minnesota law in such a short period of time, Minnesota courts have yet to weigh in on whether marijuana or THC will be considered a “lawful consumable product” or whether employers will be able to actually enforce zero tolerance policies against employees who test positive for marijuana. Other courts, however, have had the opportunity to address these issues in recent years, and the decisions at least provide some indication of how Minnesota courts might address these issues in the future.
For example, in the Colorado Supreme Court has previously held that employers could enforce their zero tolerance policies against employees who are allowed to use medical cannabis under state law, even if the employee established that he used the marijuana during non-work hours. The Colorado Supreme Court stated that to be protected under the lawful consumable product statute in that state, the use must be “lawful” under both state and federal law. Therefore, since marijuana is still designated as illegal under federal law, a Colorado employee testing positive for medical marijuana can be disciplined, including termination, for failing a drug test.
The Nevada Supreme Court incorporated that same analysis in August of 2022 when it affirmed that an employee couldn’t sue an employer after being fired for testing positive for marijuana following a post-work injury drug test. The Court emphasized that because marijuana remains illegal under federal law, the employee’s off-duty use of marijuana could not have been “lawful use.” The Court repeatedly highlighted that had the state legislature wished to protect all off-duty use of marijuana it could have done so when drafting the statute.
We don’t know what protections or guidance will be afforded to Minnesota employers in the next few months, nor do we know how Minnesota courts will respond to challenges and adverse employment decisions arising from an employee’s use of marijuana. Given the serious safety concerns in the construction industry in particular, however, there are certain steps contractors can take now to better protect their workplaces and their employees:
The quick changes in Minnesota law regarding the legalization of marijuana and hemp-derived products like THC are forcing many employers to reconsider their employment policies, especially on drug testing. Given the potential serious impacts that employee impairment could have on construction projects, contractors in particular should work with their counsel to review and update their employment policies to conform to the latest changes of the law as this legislative session continues.
 Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015)
 Ceballos v. NP Palace, LLC, 514 P.3d 1074 (Nev. 2022)
 Minn. Stat. § 181.953, subd. 6. For a more complete review of Minnesota’s current drug testing laws, refer to Minn. Stat. § 181.950, et seq.
Matt Collins will discuss Best Construction Law Practices for Subcontractors hosted by the Minnesota Concrete & Masonry Contractors Association on March 2 at 7:30 am (7:00 registration). Venued in Roseville, Minnesota, Matt will be discussing fundamental construction law principals that every subcontractor and supplier should know for running a successful business. If you would like more information to attend, please click here.
Mark Becker was inducted as a Fellow into the American College of Construction Lawyers, an organization of nationally recognized construction lawyers. Dean Thomson was elected as the College’s President Elect. For more information click here.
Fabyanske, Westra, Hart & Thomson, P.A. is pleased to announce the recognition of nine attorneys, Mark Becker, Matt Collins, Rory Duggan, Gary Eidson, Marv Fabyanske, Kyle Hart, Jesse Orman, Dean Thomson and Tom Vollbrecht by U.S. News Best Lawyers©, one of the oldest and most respected peer-review publications in the legal profession. Dean Thomson was also selected by Best Lawyers as 2023 Attorney of the Year in Construction Law. For more information click here.
This discussion is generalized in nature and should not be considered a substitute for professional advice. © 2023 FWH&T