Minnesota House Passes Recreational Marijuana Bill

Yesterday, the Minnesota House passed a bill, HF100, that would legalize recreational marijuana in Minnesota.  The bill still needs to pass the senate and be signed by the Governor before it can become law, but, the Governor has already indicated (via Tweet) that he intends to sign the bill.

Background

In its current form the House bill would permit any person age 21 or older to:

• • possess up to 2 ounces of cannabis flower in a public place or 1.5 pounds in a person’s residence;
  • possess or transport no more than 8 grams of adult-use cannabis concentrate;
  • possess or transport edible products infused with up to 800 milligrams of THC;
  • give away cannabis flower and cannabinoid products in an amount that is legal for a person to possess in public;
  • use cannabis flower and cannabinoid products in private areas; and
  • cultivate up to eight cannabis plants, of which four or fewer may be mature, flowering plants.

The bill would also make significant changes to other parts of Minnesota law, including:

• • creating more than a dozen types of licenses for growing, selling, transporting and testing cannabis;
  • creating an Office of Cannabis Management to regulate cannabis and take enforcement actions;
  • taxing cannabis retail sales at 8%, in addition to any already imposed local or state taxes;
  • creating and funding programs to combat cannabis abuse;
  • creating grants to assist individuals entering the legal cannabis market;
  • eliminating criminal penalties for cannabis possession; and
  • expunging the criminal records of people previously convicted of low-level cannabis offenses.

Changes to Minnesota DATWA

The bill also includes significant changes to the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA).

Specifically, the bill removes “marijuana,” “THC,” “cannabis products,” and “hemp-derived consumer products” from the definition of “drug” under DATWA.  Instead, it creates a new type of test – called “cannabis testing” – for when an employer tests for “the presence or absence of cannabis flower, . . . cannabis products, . . . lower-potency hemp edibles, . . . hemp-derived consumer products, . . . or cannabis metabolites.”

The bill includes three important limitations on “cannabis testing.”

• • “An employer must not request or require 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.”
  • “Unless otherwise required by state or federal law, an employer must not refuse to hire a job applicant solely because the job applicant submits to a cannabis test or a drug and alcohol test authorized by this section and the results of the test indicate the presence of cannabis.”
  • “An employer must not request or require an employee or job applicant to undergo cannabis testing on an arbitrary or capricious basis.”

Thus, unless a specific exemption applies, the bill would prohibit pre-employment testing for marijuana and THC.  “Cannabis testing” of current employees is restricted (i.e., testing cannot be “arbitrary or capricious”), but is not banned.

The amended law would, however, place the following limitations on discipline or discharging an employee for testing positive for cannabis:

An employer may discipline, discharge, or take other adverse personnel action against an employee for cannabis flower, cannabis product, lower-potency hemp edible, or hemp-derived consumer product use, possession, impairment, sale, or transfer while an employee is working, on the employer’s premises, or operating the employer’s vehicle, machinery, or equipment as follows:

1. 1. if the employee is under the influence of cannabis flower, a cannabis product, a lower-potency hemp edible, or a hemp-derived consumer product;

   2. if cannabis testing verifies the presence of cannabis flower, a cannabis product, a lower-potency hemp edible, or a hemp-derived consumer product following a confirmatory test;
   3. as provided in the employer’s written work rules for cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products and cannabis testing, provided that the rules are in writing and in a written policy that contains the minimum information required by section 181.952; or
   4. as otherwise authorized or required under state or federal law or regulations, or if a failure to do so would cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.

The bill expressly exempts the following positions from the restrictions above and, instead, makes clear that for these positions, “cannabis and its metabolites are considered a drug and subject to the drug and alcohol testing provisions in [Minnesota DATWA]:

1. 1. a safety-sensitive position, as defined in section 181.950, subdivision 13;
   2. a peace officer position, as defined in section 626.84, subdivision 1;
   3. a firefighter position, as defined in section 299N.01, subdivision 3;
   4. a position requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to: (i) children; (ii) vulnerable adults, as defined in section 626.5572, subdivision 21; or (iii) patients who receive health care services from a provider for the treatment, examination, or emergency care of a medical, psychiatric, or mental condition;
   5. 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;
   6. a position of employment funded by a federal grant; or
   7. any other position for which state or federal law requires testing of a job applicant or an employee for cannabis.

The bill also makes clear that:

• • “Unless otherwise provided by state or federal law, an employer is not required to permit or accommodate cannabis flower, cannabis product, lower-potency hemp edible, or hemp-derived consumer product use, possession, impairment, sale, or transfer while an employee is working or while an employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment.”
  • “An employer may enact and enforce written work rules prohibiting cannabis flower, cannabis product, lower-potency hemp edible, and hemp-derived consumer product use, possession, impairment, sale, or transfer while an employee, is working or while an employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment in a written policy that contains the minimum information required by this section.”

Changes to “Lawful Consumable Product” Statute

Finally, the bill also would amend Minnesota’s Lawful Consumable Product statute, Minn. Stat. § 181.938, to protect the off-duty use of products containing TCH, including:

(a) An employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours. For purposes of this section, “lawful consumable products” means products whose use or enjoyment is lawful and which are consumed during use or enjoyment, and includes food, alcoholic or nonalcoholic beverages, and tobacco, cannabis flower, as defined in section 342.01, subdivision 15, cannabis products, as defined in section 342.01, subdivision 19, lower-potency hemp edibles as defined in section 342.01, subdivision 48, and hemp-derived consumer products as defined in section 342.01, subdivision 35.

(b) Cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products are lawful consumable products for the purpose of Minnesota law, regardless of whether federal or other state law considers cannabis use, possession, impairment, sale, or transfer to be unlawful. Nothing in this section shall be construed to limit an employer’s ability to discipline or discharge an employee for cannabis flower, cannabis product, lower-potency hemp edible, or hemp-derived consumer product use, possession, impairment, sale, or transfer 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.

Bottom Line

While the recreational marijuana bill is not yet law, it is likely to be passed this legislative session.  We will continue to monitor this and other issues at the Capitol.

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