On June 2, 2022, Minnesota legalized the sale and consumption of “edible cannabinoid” products containing no “more than five milligrams of any tetrahydrocannabinol [THC] in a single serving, or more than a total of 50 milligrams of any [THC] per package.” Importantly, marijuana is still illegal in Minnesota; this law only legalizes TCH derived from hemp in certain amounts.

This Minnesota law is but the latest in a web of laws edging toward marijuana legalization. The differences in state-law requirements presents a challenge for those tracking these changes and also ensuring compliance with their organziations.

These new laws have the most obvious effect on employers’ drug testing programs. Most commonly, employers conduct preemployment, reasonable suspicion, and safety-sensitive (random) drug tests. With Minnesota’s and other states’ new laws, employers should consider the following:

• Preemployment Testing. Minnesota’s new law creates additional questions regarding preemployment testing. Employers may find that more and more candidates are testing “positive” for low levels of THC from the now-lawful consumption of products containing TCH. After all, drug tests often do not indicate the level of THC in someone’s blood or do not indicate whether the THC was consumed through legal edibles or some other source. These tests therefore limit the pool of qualified applicants for positions, which can prove very problematic with the current labor shortage. (Anecdotally, I have heard that some employers have decided to forgo preemployment testing, because so many candidates were testing “positive” for THC that they were unable to fill open positions.) Furthermore, these drug tests may not present discrimination and accommodation issues for individuals lawfully using THC products for a specific medical reasons. For example, in Minnesota, employers may not discriminate against an employee based on his or her status on the Minnesota Medical Cannabis Registry, and refusing to hire an individual based on a “positive” test may subject an employer to liable if the employee in fact holds a medical cannabis card.
• Reasonable Suspicion. The new Minnesota law does not appear to create any new questions regarding reasonable-suspicion tests. Employee may consume lawful products during their free time, but they may not be under the influence of either legal or illegal drugs while working. Employers will want to consider implementing specific reasonable suspicion protocols, including checklists, interviews, and other documentation, to ensure that the reasons for reasonable-suspicion tests are documented and properly supported.
• Random Drug Testing. Under Minnesota law, after a positive test result, employees “must be given written notice of the right to explain the positive tests, and the employer may request that the employee or job applicant indicate any over-the-counter or prescription medication that the individual is currently taking or has recently taken and any other information relevant to the reliability of, or explanation for, a positive test result.” The employee may then “submit information to the employer, in addition to any information already submitted . . . to explain that result.” Thus, if an employee tests “positive” for THC, employers may learn more about the employee’s use and make an employment decision based upon the explanation that the employee provides. The difficulty with this new law is for employers to ensure that they are making consistent employment decisions based on their policies, and that decisions are not being made on a basis that violates the law.

Employers should be warned that more and more employees and job candidates may begin testing positive for THC. As a result, employers need to continually evaluate their drug testing programs – and, in some cases, even engage in a broader conversation whether it still makes business sense to continue to test for THC.