June 8, 2023

The ending Minnesota legislative session has left many employers facing significant changes. Most notably, the legislature has forwarded a bill legalizing recreational marijuana to Governor Tim Wall’s desk. Employers should note that the governor has already announced that he intends to sign it.

House File 100 has passed the House by a 73-57 vote and 34 -32 in the Senate. The bill’s final version permits individuals 21 and over to purchase, possess, and gift up to 2 ounces of cannabis. It also allows individuals to grow up to eight plants at home. Furthermore, House File 100 will require the state to expunge certain marijuana-related convictions.

For example, the state must expunge all misdemeanor marijuana convictions. The law calls for automatic expungements, sealing the records from public view through the Bureau of Criminal Apprehension (BCA). Automating the process ensures that affected residents do not need to take action.

However, it will not automatically expunge felony marijuana convictions. Instead, the law would create a new Cannabis Expungement Board as an alternative route to expungement. Interested parties must have their felony records reviewed by the Board to determine expungement eligibility. The determination will be case-by-case.

There is little information on what this process will look like for felony-level convictions. As such, it remains unknown how Minnesotans can apply to have records of these offenses expunged. However, many expect the state to clarify more in the coming months.

House File 100 will also provide users of marijuana products with significant employment protections. Specifically, the bill provides that “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.” This protection includes prohibiting employers from rejecting an applicant solely due to a positive result for a pre-employment cannabis test. 

However, employers may continue to maintain a drug-free workplace. As such, the law does not require them to permit the possession, use, impairment, or sale of cannabis flower, cannabis product, lower-potency hemp edible, or hemp-derived consumer product in the workplace. This restriction includes when employees operate equipment or during working hours. The bill also provides carve-outs for “safety-sensitive” positions. Examples include any job where “impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person.”

With these likely changes in mind, employers should review their policies and procedures to maintain compliance. A critical aspect of this is working with an experienced screening provider. The right partner can help employers to ensure accurate and timely screening while eliminating obsolete records.

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