Susan Burns: Legal Implications of Recreational Use Cannabis Legalization for Minnesota Employers

Minnesota legalized adult-use recreational marijuana (statutorily renamed “cannabis”) in 2023. Use and possession of up to two pounds became legal on August 1, 2023, although tribal entities are the only place it is legal to purchase. Cannabis (both hemp and marijuana) substances were removed from the state’s definition of “drugs” – that is, even though hemp products were already removed from the Controlled Substances list on a federal level in 2018. While this development may be welcomed by many, it also poses significant challenges for employers in Minnesota who need to comply with the new law and balance their interests with the rights of their employees.

What Does the Legislation Change for Employers?

This recent legislation amended Minnesota Statute §152.01(4) to exclude the following substances from the term “drugs”:

  • ∙ Marijuana
  • ∙ Tetrahydrocannabinols
  • ∙ Cannabis flower
  • ∙ Cannabis products
  • ∙ Lower-potency hemp edibles
  • ∙ Hemp-derived consumer products


These substances are now considered “lawful consumable products” under Minn. Stat. §181.938, which prohibits employers from discriminating against employees or applicants based on their use of such products off premises during nonworking hours. This means that employers cannot take adverse employment actions, such as refusing to hire, demoting, or firing, against employees or applicants who use marijuana or cannabis products on their own time. This applies regardless of federal laws that still classify these substances as illegal.

However, there are some exceptions to this rule, which allow employers to restrict or prohibit cannabis use by employees or applicants who fall into one of the following categories:

∙ Peace officers
∙ Firefighters
∙ Childcare workers
∙ People working with vulnerable adults
∙ Healthcare workers
∙ CDL drivers

Additionally, employers can exclude marijuana or cannabis users from positions that are funded by federal grants or require drug testing under federal law.

How Does the Bill Affect Employer Drug Testing Policies?

Employers in Minnesota must follow the Drug Testing in the Workplace Act (DATWA), which sets forth the conditions and procedures for conducting drug tests on employees or applicants. Under the new bill, employers can no longer test for marijuana or cannabis products in pre-employment drug tests, as these substances are no longer considered “drugs” under state law. However, employers can still test in other types of drug tests, such as reasonable suspicion tests, random tests, or post-accident tests, if they are included in their written drug testing policies.

How Does the Bill Affect Employer Policies on Marijuana Use at Work?

Employers in Minnesota can still have policies that prohibit the use, possession, sale, or transfer of cannabis products at work, during work hours, or on employer property. Employers can also have policies that prohibit employees from being intoxicated by cannabis products at work, regardless of when they consumed them. Employers can discipline or terminate employees who violate these policies.

However, employers may face challenges in enforcing these policies, as it can be difficult to prove that an employee is intoxicated by cannabis products at work. Unlike alcohol, cannabis products can stay in a person’s system for days or weeks after consumption, and most drug tests cannot determine when or how much a person used them. Therefore, employers may need to rely on other evidence, such as admission by the employee or statements from coworkers, to establish intoxication at work.

What Are the Potential Impacts of Legalization on the Workplace?

While legalization may increase its use among the general population, it may also have some negative consequences for the workplace. According to the CDC, marijuana use can impair a person’s cognitive and motor skills, such as memory, attention, coordination, and reaction time. It can also affect a person’s mood and judgment, and increase the risk of anxiety and paranoia. These effects can impair a person’s ability to perform their job safely and effectively, especially if they operate machinery, drive vehicles, or handle sensitive information. Moreover, marijuana use can increase the risk of accidents and injuries at work, as well as liability for employers who fail to prevent or address them. However, studies have shown that use of cannabis during non-work hours did not have an adverse impact on the ability to function or on job performance.

How Should Employers Address Legalization?

Employers in Minnesota should review their current policies and practices regarding drug testing and substance use at work and update them to comply with the new law. Employers should also communicate these changes to their employees and applicants and provide them with training and education on the effects and risks of marijuana and cannabis use. Employers should also consult with legal counsel to ensure that they are following the state and federal laws and regulations that apply to their industry and situation.

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Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild