In a move that surprised even some lawmakers who passed the bill, Minnesota recently became the latest state to legalize some form of marijuana for recreational use. As of July 1, 2022, Minnesotans who are at least 21 years old can lawfully purchase and consume edible and drinkable products containing hemp-derived tetrahydrocannabinols (THC), the primary intoxicant found in cannabis plants. The new law requires Minnesota employers to reevaluate their drug-free workplace policies and procedures and raises questions that the state legislature may need to address in the future.

Hemp-derived THC products now legal in Minnesota

The new law, which passed as an under-the-radar provision of the legislature's end-of-session omnibus bill, modifies Minnesota's list of controlled substances to exclude "industrial hemp" products that contain no more than 0.3 percent of any form of THC. That change brought Minnesota law in line with federal law. However, the law also allows Minnesota businesses to sell, and individuals ages 21 and older to purchase, edible and drinkable products containing no more than five milligrams of THC per serving and no more than 50 milligrams of THC per package. The law does not distinguish between specific types of THC. As such, delta-8 THC products that were previously unrestricted due a federal loophole are now subject to Minnesota's five-milligram serving limit. At the same time, the law opened the door for the first time in Minnesota to products containing delta-9 THC, another component chemical responsible for the "high" cannabis users may experience.

Indirect impacts on employers that require drug testing

The new law does not contain any explicit protections for applicants or employees who choose to consume now-legal THC products and does not directly modify Minnesota's drug-testing statutes. By legalizing the consumption of edible and drinkable hemp-derived THC products, however, the new law may affect an employer's administration of its drug-testing programs. Whereas before, an employer could consider most THC-positive results indicative of illegal drug use (with medical cannabis being one significant exception), the same positive test result might now be explained by the applicant's or employee's lawful use of THC products under Minnesota's law. An employer facing such explanation will need to consider the specific facts of each situation, including job duties and safety concerns before taking action based on the test result. Notably, however, this extra layer of consideration would not apply to jobs subject to federal drug-testing requirements because THC remains an illicit controlled substance under federal law.

Implication of Minnesota's "lawful consumable products" law

An employer that receives a THC-positive test result in Minnesota must be mindful of the state's "lawful consumable products" law. Minnesota is one of several states with a law that protects employees from discipline based on partaking in certain "lawful" activities outside of work. Minnesota's law defines "lawful consumable products" as products whose use or enjoyment is lawful and which are consumed, and specifically includes food, alcoholic or nonalcoholic beverages, and tobacco within its protection. Whether that definition includes THC food products now legal under Minnesota state law, but remain controlled substances under federal law, is an outstanding question that Minnesota's courts or legislature may need to resolve. The Colorado Supreme Court in 2015 ruled that using medical marijuana was not a "lawful activity" under Colorado's similar law because federal law still considered marijuana an illicit controlled substance, even if used for medical purposes, but there is no certainty that a Minnesota court would reach the same conclusion.

Even if the law would apply to certain types of marijuana use, Minnesota's "lawful consumable products" law includes significant exceptions. For example, the law states that an employer may restrict the use of lawful consumable products by employees during nonworking hours if the employer's restriction "relates to a bona fide occupational requirement and is reasonably related to employment activities or responsibilities of a particular employee or group of employees" or "is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities owed by the employee to the employer." The scope of these exceptions is largely untested in the courts, so an employer should seek experienced legal counsel if planning to rely on one of them.

A violation of the lawful consumable products law may result in a civil action for damages, limited to "wages and benefits lost by the individual because of the violation." The prevailing party in a lawsuit under the law is entitled to "court costs and a reasonble attorney fee."

Policies against use, possession and being under the influence of THC products at work

Even with Minnesota's legalization of certain THC products, employers can still enforce policies prohibiting employees from possessing, using, and being under the influence of THC during work hours and on work property. In this sense, from a legal perspective, the use of THC in Minnesota will be treated much like the use of alcohol. An employee can lawfully consume certain THC products outside of work, and an employer can still prohibit employees from coming to work under the influence and having those products in the workplace. Minnesota employers with compliant policies can also continue to use random testing (for safety-sensitive positions) and reasonable suspicion testing (for all positions) to address concerns regarding on-duty intoxication. Employers should also ensure supervisors are trained in and documenting signs of impairment to support reasonable-suspicion testing.

Conclusion

The changes to Minnesota's treatment of THC products have led to uncertainty about the scope of an employer's ability to discipline workers who use these products. The legislature may further shape the law's effects in future sessions, and courts faced with THC-related issues will need to interpret limited case law and statutory guidance. In the meantime, employers should evaluate the law and their own risk tolerance and consult experienced legal counsel to ensure the best outcome for their operations.

Posted: August 23, 2022