Heard it on the Hotline: To Test or Not to Test

Q: We are a Minnesota employer that has historically tested all applicants and employees for drugs and alcohol, including marijuana. With the changes to Minnesota’s laws concerning adult recreational use of cannabis, should we stop testing applicants and employees for marijuana?

A: With the legalization of adult marijuana use in Minnesota, this changes the landscape for drug testing. Cannabis is no longer defined as a drug in Minnesota. While employers will need to adjust their drug and alcohol testing policies to some degree, there is no strict requirement to remove marijuana testing from your policies completely. There are a number of factors to consider.

First, employers may continue pre-employment and random drug testing for those applicants and employees who are in safety-sensitive positions or in positions where marijuana testing is required (think Department of Transportation and Department of Defense requirements and federal contracts). Take, for example, an applicant for a job as a nurse in a hospital. Because that applicant will be responsible for face-to-face care of medical patients, they can continue to be tested.

Concerning pre-employment testing, the list of positions that can continue testing for cannabis is rather extensive:

• Peace officers
• Firefighters
• Positions funded by a federal grant
• Positions requiring face-to-face care, education, training, supervision, counseling, consultation, or medical assistance to children, vulnerable adults, or healthcare patients
• Positions where state or federal law requires testing an applicant or employee for cannabis
• Positions requiring a commercial driver’s license or requiring someone to operate a motor vehicle for which state or federal law requires drug testing
• Safety-sensitive positions, which means a job including any supervisory or management position where a cannabis, drug, or alcohol impairment would threaten the health or safety of any person

Random cannabis testing is still allowed for safety-sensitive positions.

Second, an employer could require cannabis testing (in addition to drug and alcohol testing) if it reasonably suspects that an employee – regardless of which category they’re in – (1) is under the influence of drugs, cannabis, or alcohol, (2) violated written rules prohibiting the use, possession, sale, or transfer of drugs or cannabis during work, (3) sustained a personal injury or caused another employee to sustain a personal injury, or (4) caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident. It is essential for employers to train their supervisors and managers how to spot and document behavioral and other signs of possible impairment. Remember that, even with a positive test, Minnesota employers need to offer rehabilitation instead of termination for the first confirmed positive drug test result.

Third, consider the trends across the country concerning marijuana testing. Some employers have discontinued pre-employment marijuana testing, given the increased recreational legalization across cities and states. Plus, there are questions about whether pre-employment testing is as impactful as random testing on safety in the workplace. As described by Safex in its review of Quest Diagnostics’ 2022 Drug Testing Index, “Organizations who have a random testing program have a consistently lower (and more stable) positive post-accident test rate. The potential of being randomly tested has shown to impact an employee’s likelihood of using (and is a great excuse not to use in social situations) but following through on that testing may also decrease the chances of an accident related to substance use.” This suggests that continuing random cannabis testing for safety-sensitive positions may be advisable.

If you have questions on FMLA protections and obligations, MRA’s 24/7 HR Hotline Advisors are here to help at 866-HR-Hotline (866.474.6854) or email [email protected].