By: Aaron Abelleira
I recently had the opportunity to speak at the American Traffic Safety Services Association (ATSSA) Northland Conference on the topic of Cannabis & Construction and had a number of great questions presented to me on this topic. While I attempted to answer as many questions as possible, I wanted to provide a follow-up article explaining some of the issues contractors are currently facing since Minnesota legalized cannabis use in August of 2023.
First, contractors should be aware of the fact that since cannabis has been reclassified as a lawfully consumable product in Minnesota, zero tolerance drug and alcohol policies will not apply to cannabis use in the same way they apply to other prohibited substances. Contractors can and should prohibit the possession and use of and impairment by cannabis at work, while using contractor-owned vehicles and equipment, and on work time. The policy should require employees to be ready and able to work during work time. An employee’s use of cannabis on his or her own time cannot be the basis for discipline unless the employee is impaired by that use during work time.
Second, contractors should carefully consider whether they want to include cannabis products in drug testing. If so, they must modify their drug and alcohol testing policy to specifically include cannabis testing. The contractor must follow all other requirements of the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), which are outside the scope of this article. But two of the DATWA requirements are worth a particular note mention in relation to cannabis testing:
1. If an employee tests positive (and a confirmatory test is positive) for cannabis products, the employee is entitled to explain the positive test. The employee cannot be disciplined for use of cannabis products on his or her own time (including medical marijuana use).
2. Even if the employee tests positive for cannabis, the employee must be offered treatment or substance abuse counseling services for the first positive test before disciplinary action may be taken, even if discipline would otherwise be appropriate. Only if the employee refuses to engage in treatment or fails out of treatment may the contractor then discipline the employee.
An alternative to drug testing for cannabis products—except when such testing is required by federal law—is for a contractor to simply discipline for violations of its policy that employees must be ready and able to work during work time when employees show signs of impairment.
Third, while many contractors and groups have re-designated construction workers as a “safety-sensitive position,” with the hopes of obviating the need to revise their employee guidelines, this re-designation is not the get-out-of-jail-free card some contractors imagine it to be. Minn. Stat. § 181.950, subd. 13 defines a “Safety-sensitive position” as “a job, including any supervisory or management position, in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person.” However, this definition has not been tested in the courts, meaning that this re-designation alone may not be sufficient to surmount a claim for discrimination. In addition, a safety-sensitive designation under DATWA simply allows testing to occur under some circumstances. It does not solve the issues noted above regarding what consequence may follow a positive test.
So what does all of this mean? Simply put, contractors should specifically communicate to their employees what is expected of them, how they will be disciplined if caught using or being impaired by a cannabis product while working, as well as what services employees may be offered prior to being disciplined (i.e., treatment). As I explained in the ATSSA conference, there exists a test case out there regarding cannabis in the construction field, and smart contractors would be wise to revise any employee guidelines in a manner that is commensurate with this ever-changing area of the law.
If you have any questions about your company’s current policies in place regarding cannabis and construction in Minnesota, please do not hesitate to reach out to Aaron Abelleira.
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