Employees Using THC – Legally? Navigating Employee Drug Testing In The Post-Legalization Era

December 16, 2022

The Road to Legalization?

The road to our current legal field began with the federal 2018 Farm Bill, which legalized the cultivation and sale of hemp at the federal level. Specifically, any hemp containing a maximum of 0.3% THC by weight was now considered “legal” at the federal level.

Importantly to Minnesota, the Farm Bill delegated the broad authority to states to regulate and limit the production and sale of hemp within their borders. Accordingly, in 2019, the Minnesota legislature added provisions on the sale of “cannabinoid products” to the Pharmacy Practice and Wholesale Distribution Act and modified several definitions provided by Minnesota drug and controlled substance laws to exclude “industrial” hemp (i.e. hemp and CBD products containing less than 0.3% of “delta-9” THC) from the definition of illegal marijuana.

Shortly thereafter, questions were raised: Because the revisions specifically referenced “delta-9” THC, what about other variants of THC such as “delta-8” or “delta-10”? And while the act legalized “industrial hemp,” what about the legality of so-called “edibles”?

The legislature revisited these issues in 2021 and passed new legislation, with the current iteration having gone into effect on August 1, 2022. The amendment removed references to “delta-9,” opting instead to simply leave in place the general THC limit. And edibles? The new law authorizes the production of “edible cannabinoid products” as long as they (1) adhere to the 0.3% THC limit, and (2) do not contain more than 5 mg of THC per serving or more than 50 mg of THC per package. However, at present, there is no limit to the amount of packages a customer may purchase at a time. The result has accordingly been the de facto legalization of hemp-derived THC for recreational use.

What does this mean for employers and drug testing?

Presently, drug and alcohol testing is only authorized by statute for Minnesota employers in certain circumstances, the following being the most typical:

Preemployment Testing: A job applicant may be required to undergo testing provided a job offer has been made to the applicant and the employer requires all job applicants to undergo such testing.

Routine Physical Examination Testing: An employee my be required to undergo testing as part of a routine physical examination, once annually, and with two-weeks’ notice.

Safety-Sensitive (Random) Testing: An employee working in any job in which an impairment caused by drug or alcohol use would threaten the health and safety of another may be randomly tested.

Reasonable Suspicion Testing: An employee may be required to undergo testing if the employer has a reasonable suspicion that the employee: (1) is under the influence; (2) has violated the employer’s written work rules prohibiting the use, possession, sale, or transfer of drugs or alcohol while the employee is working, on the employer’s premises, or operating the employer’s equipment; (3) has sustained or has caused a personal injury, as defined by statute; or (4) has caused or was operating or helping to operate equipment involved in a work-related accident.

Further complicating things, Minnesota has also enacted a Medical Cannabis Registry statute, which includes a prohibition of discrimination by employers against potential or current employees in hiring, firing, or other term or condition of employment if the employee is enrolled in the cannabis registry or tests positive for cannabis components (unless the employee used, possessed, or was impaired by medical cannabis on the job). Furthermore, under the protections of the medical cannabis statute, an employee may present verification of being enrolled in the registry as part of the employee’s explanation under the drug and alcohol testing statutes.

Putting the existing framework together, obvious problems present themselves. For instance, many, if not most, preemployment drug tests required by employers do not provide the level of THC in the candidate’s blood stream, but instead simply indicate the presence or absence of THC. Further, the tests do not differentiate between legal hemp-based THC and illegal marijuana-based THC. Therefore, candidates lawfully using hemp-based THC may be unknowingly filtered from candidacy, or worse, employers may open themselves up to potential liability if the candidate has enrolled in the Medical Cannabis Registry but has been denied employment on the basis of a positive test.

The Takeaway

The upshot of this new law is that more job candidates and current employees will inevitably begin testing positive for potentially legal THC in authorized drug and alcohol testing. Employers should consider updating their written and unwritten policies for handling drug and alcohol testing to ensure that they are consistently making hiring, firing, and general business decisions on uniform policies and not arbitrary (and potentially unlawful) bases.

Until the legislature provides further guidance, the ins and outs of the law surrounding legal and illegal THC possession and use remains murky. The best way for an employer to get ahead of this unclear situation is to consult an experienced counsel with any questions and concerns, including the revision of company policies that may be outdated or incompatible with the current legal landscape.