Tanner Montague came to town from Seattle having never owned his own music venue before. He’s a musician himself, so he has a pretty good sense of good music, but he also wandered into a crowded music scene filled with concert venues large and small.But the owner of Green Room thinks he found a void in the market. It’s lacking, he says, in places serving between 200 and 500 people, a sweet spot he thinks could be a draw for both some national acts not quite big enough yet for arena gigs and local acts looking for a launching pad.“I felt that size would do well in the city to offer more options,” he says. “My goal was to A, bring another option for national acts but then, B, have a great spot for local bands to start.”Right or wrong, something seems to be working, he says. He’s got a full calendar of concerts booked out several months. How did he, as a newcomer to the market in an industry filled with competition, get the attention of the local concertgoer?
1, There are a lot of unanswered questions related to the legislation legalizing adult-use cannabis. Some questions are likely to be answered due to lawsuits between small businesses and their employees.
2, Employers cannot require cannabis testing for most positions, but “safety sensitive” roles, as defined by the statute, are an exception.
3, Since cannabis is no longer technically a drug according to the bill, employers will have to rephrase employee handbook language to include it specifically alongside drugs and alcohol as substances not allowed at work.
4, Employers can still conduct drug tests if they have reasonable suspicion that an employee has violated their written rules about cannabis use on premises or in the event of a work-related accident.
On May 30th, 2023, Minnesota Gov. Tim Walz signed a bill that legalized the recreational use of cannabis. The bill, in large part, came into effect on August 1, leaving many organizations scrambling to figure out exactly how this migration of cannabis into public life will work.
The workplace in particular is faced with a number of new and difficult questions stemming from this new legislation and every industry will have to grapple with the reclassification of what once was an illegal drug.
More than 190,000 employers across the state, the majority of which are small businesses, will now have to think about establishing guidelines for cannabis use during work hours, reimagine drug testing policies and address safety concerns.
Among the many questions bubbling up: Will employees be permitted to work while partaking? Can team members now be subjected to drug tests for employment retention? Or will cannabis be omitted from current employment drug tests? Is it legal for workers to operate heavy-duty machinery and equipment while under the influence?
In some cases, these questions are cut and dried, but for others, ambiguity will only be resolved as employers experiment with their response to legalization.
Bill tautologies
The text of the bill isn’t exactly helping matters. While future regulations and legislative tweaks will undoubtedly clarify matters, many portions of the bill legalizing adult-use are vague enough that the bounds of what is legal and illegal will inevitably need to be defined by future courts.
In other words, future lawsuits between small employers and their employees will lead to more clarity regarding what is in bounds and what is out of bonds in the employment context in the coming years.
Though there are many, one important example of this ambiguity is the definition of “safety-sensitive positions.” Employers can no longer require cannabis testing for most jobs. But one of the exceptions is for jobs that are “safety sensitive.” To quote the latest text of the bill:
Subd. 13. Safety-sensitive position. “Safety-sensitive position” means 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.
In other words, a safety-sensitive position is a position in which safety is a consideration? This kind of tautological language is the Legislature’s (perhaps unintended) way of kicking the can to the courts.
What this ambiguity forecasts for the workplace is stormy weather. Over the next few years, we can expect to see employers attempting to expand the number of positions that qualify as safety sensitive. So, alongside the obvious examples of bus drivers or construction-site supervisors, we might see employers try to wedge in less-likely candidates such as anybody who lifts heavy objects at work or anybody who simply oversees groups of people.
This is just one example of the many ambiguities this bill contains. Against this backdrop of legalization and uncertainty, what sort of changes will we see in the workplace from both employers and employees?
Handbook edits
Employers will need to lean heavily on their internal policies, which of course will still hold sway. If employers are cagey about cannabis use at the office, all they really need to do is add an extra clause to their internal employee handbook. Most already contain something about the prohibition of drugs and alcohol on company property. Since cannabis isn’t technically a drug anymore according to the new bill, retaining their same-old approach to cannabis use and possession in the workplace will be as simple as rephrasing their clause to “drugs, alcohol and cannabis.”
With this slight edit, employers will be able to prevent possession, use, gifting and exchange of cannabis at work. Without it, cannabis restrictions may look a lot more like tobacco. While the Minnesota Clean Indoor Air Act prevents smoking indoors, nothing would prevent aspiring users from partaking in the parking lot.
A more difficult question
A more difficult question lies in drug testing. The bill makes clear that pre-employment screening, as well as random testing, is no longer lawful for cannabis unless a prospective employee fits within a particular category, such as a safety-sensitive job.
But employers can still conduct drug tests if they have reasonable suspicion that an employee has violated their written rules about cannabis use on premises. Drug tests are also lawful in the event of a work-related accident, which is probably the most likely trigger for them to occur. However, unlike alcohol, for example, cannabis remains in the body’s system for weeks. Therefore, Minnesota courts should be prepared for an additional ground for dispute—does a positive test actually mean an employee was actually under the influence at work?
Behavior-based discipline
Small employers looking to discipline employees for cannabis use will likely need to take a more creative approach. What we might see is a spike in behavior-related disciplinary action. Organizations may begin to train their human resources departments to establish baseline cognitive abilities of their employees, and to note deviations from those baselines.
For example, rather than sending an employee for drug testing, we may see employers begin to discipline based on exhibited behavior that is consistent with cannabis use, such as increased lethargy or diminished capacity to engage with customers. This way, employers can bypass the messiness associated with disciplining employees for cannabis use per se and instead attack it from angles of behavior and objective performance.
Medical cards protect employees
As for employees, the simplest way to insulate themselves against infractions will be to obtain a medical license. Barring safety-sensitive considerations, this will be the strongest defense against any disciplinary action from employers. Employees that need to use cannabis will find medical cards a strong shield against cannabis-based employment discrimination.
Navigating the transition period
The next few years of recreational cannabis use in Minnesota will prove critical, both as the details of HF100 get hashed out in the public eye and as the infrastructure around the cannabis industry gets built out. How it all gets rolled out remains an open question. But, within this transitional period, both small employers and employees will need to think carefully about how they approach cannabis.
