Minnesota employers are on edge about potential liabilities stemming from their drug testing policies in the wake of the state’s recent legalization of consumable products containing the active ingredient in marijuana.
The law, which took effect in July, allows anyone 21 and older to buy edibles and beverages containing up to 50 milligrams of hemp-derived tetrahydrocannabinol, or THC, per package. The measure excludes products with a certain amount of THC from the state’s list of controlled substances.
Unlike other states with new cannabis-related measures, employers in Minnesota didn’t get time to review their drug policies after the law passed in May, and say they lack the guidance to respond adequately.
“Employers are concerned about testing and potential liabilities of their business’s drug policy. There are no guidelines on a marijuana impairment standard and no reliable testing method for marijuana intoxication; nor is there a way to differentiate consumption source,” said Lauryn Schothorst, director of workplace management and workforce development policy at the Minnesota Chamber of Commerce.
That sets the state apart from places like California, where a new measure set to go into effect in 2024 bars employers from discriminating against workers who consume marijuana legally in their off-work hours.
“Minnesota’s employers should have the right to enforce drug or zero-tolerance policies that maintain their unique operational, safety, productivity and culture needs and manage compliance with appropriate federal drug laws,” Schothorst said in a statement provided to Bloomberg Law.
Legislatures typically keep employers in mind when considering measures that have significant workplace implications, said Grant Goerke of Littler Mendelson PC.
But Minnesota’s law “was done in a limited fashion that didn’t keep employers in mind much,” he said. “It’s going to be something that develops over time, and it’s going to require employers to look at their policies and think” about the effect it could have on specific employees like those in safety-sensitive jobs, Goerke added.
Minnesota employers can still take certain actions against workers who test positive for THC, attorneys said.
They can bar workers from using, possessing, and being under the influence of THC during work hours or in the workplace. And random drug testing for safety-sensitive positions or testing of employees suspected of being intoxicated on duty also is allowed.
But the scope of what employers can do under Minnesota’s “lawful consumable products” law—which says employers can’t “refuse to hire a job applicant or discipline or discharge an employee” for consuming products like alcohol and tobacco in their free time—is a question the legislature or the courts may need to clarify.
Lawmakers didn’t modify that statute to factor in the newly legal THC products, making it unclear whether they are considered “lawful consumable products” that would subject employers to liability for taking action.
THC also can be detected in the body several days after usage, so a positive test doesn’t necessarily mean an employee was consuming marijuana at work, according to the National Drug Court Institute. So an employer’s response to a positive drug test “would need careful consideration,” Goerke said.
Case Law Lacking
Minnesota courts charged with handling litigation over adverse employment actions from a worker’s consumption of THC products have scant case law to inform their decisions, said Brent Kettelkamp of Ogletree, Deakins, Nash, Smoak & Stewart PC.
In 2015, the Colorado Supreme Court said a worker using medical marijuana wasn’t protected by that state’s “lawful activity” statute because of the federal prohibition of marijuana.
The Nevada Supreme Court cited that decision in August of this year when it affirmed that an employee couldn’t sue an employer after being fired for testing positive for marijuana following a post-work injury drug test.
“It’s an open question whether Minnesota courts would follow Colorado’s lead on this,” Goerke said.
While the issues get sorted, some municipalities have temporarily banned THC products while they consider regulations for businesses.
“Some cities have reviewed their written personnel policies and updated [them] to ensure consistency with the THC statute,” said Patricia Y. Beety, general counsel for the League of Minnesota Cities.
Employers also should take a broader look at how they would operate if recreational marijuana is legalized in the state, Kettelkamp said.
“I think this has really opened up a broader conversation about what marijuana use might be in the future here in Minnesota and the implications that has for employers’ work environment,” he said.