On June 2, 2022, Minnesota Gov. Tim Walz signed House File (HF) 4065, a measure providing clarity regarding hemp-derived consumables stemming from the Agriculture Improvement Act of 2018, also known as the 2018 Farm Bill, surrendered. Specifically, this law now permits the sale and consumption of “edible cannabinoid” products that contain no “more than five milligrams of tetrahydrocannabinol.” [THC] in a single serving or more than 50 milligrams total [THC] per packet.” Regardless, marijuana is still illegal in Minnesota; Only hemp-derived THC is now legal to consume — in certain amounts.
This law is notable because Minnesota, along with numerous other states, is beginning the slow and gradual process of legalizing marijuana and/or hemp. For example:
- South Dakota briefly legalized the use of marijuana until its law was ruled unconstitutional by the South Dakota Supreme Court (but a new amendment could be included in a future vote).
- The effective date of Virginia’s recreational marijuana law has been pushed back from 2024 to 2021.
- In May 2022, Rhode Island enacted the Rhode Island Cannabis Act, relaxing restrictions on marijuana.
- Changes to legalize marijuana often appear on ballots in state elections.
- State legislatures are increasingly debating laws to legalize marijuana. For example, a Minnesota bill (Senate File [S.F.] 757) recently gained support but ultimately failed.
For employers in multiple states, the web of different laws with varying requirements poses a complex problem in tracking these rapid changes and ensuring compliance with drug testing program laws for a number of reasons.
First, many of the state laws regarding marijuana and hemp differ quite significantly. Some states only allow hemp, some states only allow marijuana for certain medical uses (and each state differs in those uses too), while other states have legalized and regulated marijuana in general. These diverse, rapidly changing requirements pose a complex compliance challenge for fast-moving employers across multiple states. (For an overview of the current state of marijuana legalization, see Ogletree Deakins’ State Law Maps resource.)
Second, while keeping track of all of these different requirements is challenging, it’s even more difficult when employers have drug testing programs in more than one state. Most commonly, employers conduct pre-employment, reasonable suspicion, and security-sensitive (random) drug testing in their programs, all of which are becoming a compliance nightmare due to changing legislation. Here are some considerations regarding each type of test and how new Minnesota law and other state laws may affect an employer’s drug testing programs.
- Tests before employment. Minnesota’s new law raises additional questions and considerations regarding pre-employment testing. Employers may find that more and more candidates are testing “positive” for low THC levels through lawful consumption of THC-containing products. For example, the individual may have consumed a legal hemp product (which is legal) that still contains low levels of THC, resulting in the employee testing positive. This is even more problematic since many drug tests don’t indicate the THC level in a person’s blood and usually only show “positive” or “negative.” This finding may not only limit the pool of qualified applicants for a job, but also put individuals who lawfully use THC products for a specific medical reason at risk of discrimination and accommodation. For example, Minnesota employers may not discriminate against an employee based on his or her status on the Minnesota Medicinal Cannabis Registry. Refusing to hire someone because of a “positive” test can also make an employer liable if the employee holds a medical cannabis card and explains to the employer the reasons for testing positive with the same.
- Justified suspicion. Minnesota’s new law does not appear to raise any new questions or concerns regarding reasonable suspicion testing. While employees may consume legal products in their free time, employees must not be under the influence of legal or illegal drugs while on the job. Employers may consider implementing a specific reasonable suspicion protocol/process, which may include checklists, interviews and other documentation, to ensure the reasons for the test are documented and substantiated.
- Safety/random drug testing. While many state laws differ on when and how employers can require safety-sensitive employees to undergo drug testing, Minnesota’s new law offers a good case study. Under Minnesota law, and after a positive test result, employees “must be notified in writing of the right to declare the positive test, and the employer may require that the employee or job applicant identify any over-the-counter or prescription medications the person is currently taking or has recently taken and any other information relevant to the reliability or explanation of a positive test result.” The worker may then “provide information to the employer in addition to the information already provided … to explain that result”. Accordingly, if an employee tests “positive” for THC, employers can learn more about the employee’s use and make a hiring decision based on the employee’s statement. The challenge for employers in this scenario is to ensure that they make consistent employment decisions based on their policies and practices and ensure that such decisions are not made on a basis that violates the law.
With this change in the law, more employees could test positive for THC due to the broad legality of hemp products and the increasing legalization of marijuana in general. Accordingly, it may be time for employers to reconsider their drug testing programs and how they view the use of THC for the workforce. Put simply, yesterday’s laws can cause problems for today’s employers.
Given the complex issues outlined above, employers may want to consider re-evaluating their drug testing programs. As more states begin to legalize marijuana and relax restrictions on hemp products, employers may want to have a broader conversation about testing for THC and whether it makes business sense (or is required by law).
The Ogletree Deakins Drug Testing Practice Group will continue to monitor developments related to workplace marijuana laws and will provide updates to the Drug Testing Blog. Important information for employers is also available through the company’s webinar and podcast programs.
Additional information on federal, state and major local government marijuana laws and related workplace-related topics is available at the office OD Compliance: Marijuana Subscription Materials that will be updated and made available OD Compliant subscribers when the law changes.