Are Minnesota businesses prepared for legal cannabis?

[MUSIC PLAYING] CATHY WURZER: Three weeks from today, lighting up a marijuana joint, vaping weed, or ingesting marijuana edibles will no longer be a crime in Minnesota. And that means businesses have until then to determine how they're going to approach recreational cannabis use among their employees. The Minnesota Chamber of Commerce has been meeting with employers around the state to answer questions about drug testing, workplace bans, and how the federal government fits into all of this.

Here with some answers is Lauryn Schothorst. She's the chamber's director of workplace management and workforce development policy. Lauryn, thanks for being here.

LAURYN SCHOTHORST: Thanks for having me, Cathy.

CATHY WURZER: I know the chamber has been suggesting that businesses have workplace policies in place by August the 1st, and that is not a long runway. What are some of the most common questions you're getting from employers?

LAURYN SCHOTHORST: The biggest question, I think, we are getting right now is can I still have a policy? And if so, what do I need to do to make sure it's in compliance with the new law? Or is my policy that I already have OK to still use? Or do I need to go back and amend it?

And the answer to both of those questions is you do need a policy. It needs to be in writing. I would take a look at your existing policy because it has to comply with the new law. And there will be some changes you'll need to take note of. And you want to make sure it's distributed to your employees prior to August 1.

CATHY WURZER: Which industries are most concerned about the effects of marijuana use on employees?

LAURYN SCHOTHORST: The ones that most readily come to mind are those who operate machinery, like the manufacturing industry, and others that operate equipment or use CDLs, driver's licenses, things like that. But another question that we get is I interact with customers. Is that something that we need to be mindful of? Or I work with children or patients. Those are some other industries that if you have that kind of a face-to-face interaction, where there might be health and safety concerns, you're going to want to take a look at the new law and make sure you have a policy that fits.

CATHY WURZER: So can businesses discipline employees for using cannabis?

LAURYN SCHOTHORST: The state has now made cannabis a lawful consumable product in the state. So if it is used outside of working hours and an individual is not impaired at work, then no, that the line in the sand is impairment at work. And that is where the new law lays out a standard, which is defined as not possessing the clearness of intellect or control of self that the employee otherwise would have. And that is somewhat subjective because there's not great testing for impairment with cannabis currently like alcohol tests, for example.

CATHY WURZER: Mhm. I was just going to ask about testing. What are you telling businesses?

LAURYN SCHOTHORST: This is a decision that businesses will have to make on their own if testing for cannabis is the right answer for them. Folks are looking at this impairment concept of safety behavioral as being the standard and not necessarily testing for cannabis. If you test for cannabis, there's going to be guidelines and further things that you need to do following that might not make sense for your business.

CATHY WURZER: Mhm. So I'm wondering, would it make sense for businesses to treat marijuana use like they would alcohol on the job?

LAURYN SCHOTHORST: Without that subject-- without that objective test, I should say, it's difficult to discern if there's a-- 0.8 indicates yes, you're intoxicated. It's just a simple presence. So it'll be treated differently.

The new law also pulled cannabis testing out of drug and alcohol. So unless you're in a federal position or safety-sensitive positions, where cannabis is considered a drug, there is drug and alcohol testing, and then there is cannabis testing. There are some similarities that you can look to. But knowing without that objective blood test, for example, to indicate impairment, you will need to treat them a little bit differently.

CATHY WURZER: What's your advice for employers that have contracts with the federal government or use federal grant money?

LAURYN SCHOTHORST: So there is federal law that will take precedence over state law. And so nothing in the new state law should be construed to limit an employer's ability to discipline or discharge an employee or fail to hire an employee if a failure to do so would violate federal or even state law or any regulations that would come into play beyond this or would cause an employer to lose monetary or licensing-related benefits under federal law regulations.

CATHY WURZER: There's a lot to think about here, obviously. How prepared do you think Minnesota businesses are for this change that's coming up in three weeks?

LAURYN SCHOTHORST: I don't think very prepared at all. It's a huge change in this particular area. And it's coming off of a legislative session where employee handbooks and just regular labor and employment-related matters need to be updated when you're thinking about other benefits, like sick and safe time coming on the books, changes to the pregnancy and parental leave statutes, things like that.

There's a number of other things that have very quickly come into place. And employers are scrambling to meet the July 1 deadline for some of those laws, as well as this upcoming August 1 deadline. So it's a lot of work for HR specialists this summer, employment lawyers, to understand specifically how each business will be impacted by these new laws and in what capacity and what changes they need to make to their handbooks.

CATHY WURZER: Has the chamber looked to other states for lessons on this?

LAURYN SCHOTHORST: There is a national landscape here for multistate employers to point to. The issue is every state statute is constructed a little bit differently. And so Minnesota, employers in Minnesota will need to ensure that whatever policy they come up with complies with the minimum standards set forth in the Minnesota law.

So something might be formatted a little bit differently in another state that has a legalization of marijuana. There are similarities, sure. And you can have guidance, or you can be informed in the process or things you might need to be mindful of. But, at the end of the day, Minnesota law will be what you need to comply with. And so you just need to familiarize yourself very carefully with the new law here in Minnesota.

CATHY WURZER: HR professionals are also thinking about, I'm sure, the fact that, gosh, I believe 66,000 people will have their misdemeanor records automatically wiped clean as a result of this law. Felonies can be expunged via a longer process, I believe. So are employers needing to change their hiring practices to disregard marijuana convictions? I would think yes, right?

LAURYN SCHOTHORST: They will have to look at how they are screening employees. Minnesota has a ban the box law already on the books. So there is some familiarity with looking past some of these things. What is going to come into play is how a specific position, the risk that the individual has for a specific position based on what a drug conviction or even some kind of a law enforcement action might take place. But that will be another area where employers will need to look at the new law and figure out how it's going to work with their practices to make sure they're in compliance.

CATHY WURZER: Lauryn, do you think that member businesses of the chamber, are they also bracing possibly for any litigation over this law?

LAURYN SCHOTHORST: Given the fast timeline, the lack of clarity on a few things, I assume, as with most new laws, there will be litigation to help potentially resolve some of these issues. Not uncommon to see.

CATHY WURZER: Anything else that's on your radar that you're helping businesses with?

LAURYN SCHOTHORST: We're doing a webinar tomorrow with our members and an employment law specialist specifically to go over the new law, what individuals need to think about, how they manage their workforce, things like that, and then answer directly their questions that they have.

But, at the end of the day, you're going to want to review your policy and review the law and make sure that you are in line with what you can and cannot do, when you can test, when you cannot test, and the standards and thresholds you need to have as an employer to make sure that you have a safe workplace, of course, but that you're not doing so in a way that infringes on an individual's ability to now take benefit of this new statute in their personal life.

And that, I think, is the one thing for individuals, too. We want to make sure employees are clear that when they are using a lawful consumable product that there still potentially could be implications for them at work. And we would never want individuals to think that there was a free pass here and it would not have any issues. So individuals, too, should take note of the new law and when they have to be careful about their usage.

CATHY WURZER: By the way, for tomorrow's webinar, can people still sign up for that?

LAURYN SCHOTHORST: If they're Minnesota Chamber members, yes.

CATHY WURZER: All right. Lauryn Schothorst, thank you so much for your time.

LAURYN SCHOTHORST: It was great to talk with you. Thanks for doing this series.

CATHY WURZER: Likewise. Lauryn is director of workplace management and workforce development policy at the Minnesota Chamber of Commerce. As you heard, tomorrow afternoon, the chamber is holding a webinar to help its members prepare for marijuana legalization.