Minnesota and Washington Employers Must Revisit Preemployment Drug Tests
Author: David B. Weisenfeld, XpertHR Legal Editor
June 12, 2023
A growing number of states are restricting employers from testing job applicants or employees for marijuana. In recent weeks, Washington and Minnesota passed laws that prohibit employers from using a marijuana test result to make an employment eligibility decision unless they are required to do so by federal or state law.
Last year, California and the District of Columbia passed measures that made it unlawful for an employer to discriminate against an individual in hiring, firing or other terms of employment based on their off-duty cannabis use.
In all, 23 states have legalized recreational marijuana use in some fashion, so more laws requiring employers to revisit their drug testing programs may be on the way.
Washington became one of the first two states in the nation to legalize recreational marijuana use in 2012. Effective January 1, 2024, employers in the Evergreen State will be subject to limitations on employment drug testing, particularly related to marijuana.
The new law, SB 5123, bans employers from discriminating against an applicant in the hiring process based on their lawful off-duty use of cannabis away from the workplace. In particular, it prohibits employers from relying on preemployment drug tests that screen for the presence of "non-psychoactive" cannabis metabolites in their hair, blood, urine or other bodily fluids.
However, nothing in the law prohibits Washington employers from continuing to:
- Base initial hiring decisions on scientifically valid drug screening that does not test for non-psychoactive cannabis metabolites;
- Maintain a drug and alcohol free workplace; or
- Test for controlled substances other than preemployment, such as post-accident testing or testing because of suspected impairment or being under the influence of alcohol, controlled substances, medications or other substances.
Washington also includes limited exceptions for certain jobs, including:
- Emergency first responders;
- Positions in the airline or aerospace industries, or a
- Safety-sensitive position for which impairment while working presents a substantial risk of death.
The law specifies that an employer must identify these safety-sensitive positions prior to the applicant's application for employment.
Minnesota has joined the list of states to legalize recreational marijuana. Effective August 1, pre-employment drug tests will no longer be permitted to screen for marijuana and other cannabis products.
H.F. 100 adds cannabis to the state definition of "lawful consumable product" meaning an employer cannot fire, discipline or refuse to hire someone for their use of cannabis outside of work during nonworking hours.
The Minnesota law also prohibits an employer from discriminating against a person in hiring, termination or terms and conditions of employment based on a positive drug test, subject to certain conditions. In addition, it allows an employee who is a medical marijuana patient to present their registry verification to explain a positive drug test.
Under certain circumstances, Minnesota employers may continue to test for cannabis based on reasonable suspicion or a post-accident testing policy. Existing drug testing requirements will continue to apply to positions that:
- Are safety-sensitive;
- Work directly with children, vulnerable adults or health care patients;
- Require a commercial driver's license or testing for motor vehicle operation; or
- Require testing under state or federal law.
The new Minnesota law also gives people with marijuana convictions a chance to clear their criminal record by automatically expunging low-level convictions and establishing a review board to evaluate eligibility for more serious offenses.