Minnesota Employers May Need to Reconsider THC Drug Testing Policies

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Minnesota Employers May Need to Reconsider THC Drug Testing Policies (1)
September 19, 2022

Beginning on July 1, 2022, it became legal for people 21 years or older to purchase and consume drinkable and edible products containing hemp-derived tetrahydrocannabinol (THC). THC is the primary intoxicant contained in the cannabis plant.  

Because of this new law, employers may want to review workplace policies related to drug testing or a drug-free workplace. In addition, the new law has changed Minnesota’s list of controlled substances. It now excludes industrial hemp products as long as they do not contain more than 0.3 percent of any form of THC. 

The law also permits businesses in Minnesota to sell edible and drinkable products. These products cannot contain more than five milligrams of THC per serving or more than 50 milligrams of THC per package. However, this law does not differentiate between specific kinds of THC. As a result, products like delta-8 THC, which used to be unrestricted because of a federal loophole, must adhere to the state’s five-milligram serving limit. But, the law does now allow products containing delta-9 THC.

The new law does not provide specific protections for employees or applicants using legal THC products, nor does it change the state’s drug-testing statutes. However, because it is now legal to consume edible and drinkable hemp-derived THC products, employers may need to administer drug-testing programs differently. 

Before this law, if an employee tested positive for THC, it would indicate illegal drug use. The only exception was medical cannabis. However, the positive result could now mean the employee was using a legal cannabis product. This change would not be the case for jobs that are required to follow federal drug-testing requirements. Under federal law, THC is still a controlled substance.

Employers must take care when an employee tests positive for THC now that certain products are legal. Minnesota’s consumable products law protects employees from disciplinary actions for using products whose use or enjoyment is lawful. However, there are some exceptions to this law. 

The law explicitly includes tobacco, food, and non-alcoholic and alcoholic beverages. Depending on how the courts or legislature in Minnesota rule it, legal THC products may fall in this category of explicitly named products.

If an employer does violate this law, it could result in a civil action for damages. The damages are limited to the wages and benefits the individual lost. Additionally, the party that wins the lawsuit can recover court costs and a reasonable attorney fee.

Employers are still allowed to ban the use or possession of THC during work hours or on work property. They can also prohibit employees from being under the influence of THC during work or while on work property. Additionally, employers may still do random testing for safety-sensitive positions or test employees they suspect are intoxicated on duty. 

Final Thoughts

The new law makes it difficult for employers to understand their rights concerning disciplining employees who use legal THC products. Hopefully, the legislature or courts will resolve this issue in the future. Until then, employers may want to consult legal counsel to help determine the best policy for their workplace.

Pre-employ offers resources to help employers stay compliant and incorporate fair chance hiring practices. Download our free resource guide on 5 Tips To Avoid FCRA Non-Compliance to learn more.

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