Minnesota legalizes THC edibles
What it means for employers
By Larry Morgan, MAIR, SPHR, SHRM-SCP, GPHR
On July 1, 2022, the sale of unregulated THC products derived from hemp in Minnesota became legal after the Minnesota Legislature approved the law in June. The law allows the purchase of food and beverage products that contain up to 5 milligrams of THC per serving, with a limit of 50 milligrams per package with no limit regarding how many items may be purchased. The law also requires child proof packaging of the product.
While the intent may have been to provide lower-cost THC to assist people with certain medical issues — and to provide legal clarity following the enactment of the federal government’s 2018 Farm Bill, which legalized the sale of hemp products — some legislators may not have been aware of a “loophole” in the approved bill which, in essence, allows for a more potent form of hemp-based THC to be sold recreationally in edible products. These products can produce levels of intoxication after ingesting only one or two 5 milligram servings.
Additionally, the law does not provide for controls or regulations regarding how retailers and cultivators can become licensed. This could lead to some products being marketed with false and misleading claims, lack of product warnings such as threshold levels, and exposure to intoxication and product testing for contamination.
How we got here
Many states are allowing recreation marijuana. While several proposals have been made to legalize marijuana in Minnesota, it remains illegal at both a state and federal level. For persons on the Minnesota Medical Marijuana Registry list, marijuana may be purchased through two approved providers.
The number of Minnesotans on the 8-year-old Minnesota Medical Marijuana Registry list increased from 26,000 in March 2022 to more than 37,000 participants as of July. The increase is the result of a March 2022 law change that allows people on the registry to purchase dried raw cannabis. Prior to this change, only oils for vaping, creams and dissolvable mints and lozenges could be used. Minnesota was only one of two states that banned the most familiar way of using marijuana — by smoking through papers or pipes.
The cost to purchase the dried cannabis through the two providers was extremely high, as much as $300–360 per month, according to the state medical cannabis office. As a result of this high cost, participants often turned to black and gray markets, including travel to other states, such as Illinois or Colorado, where cannabis is sold legally and at a much lower cost.
The intent of the bill was to reduce the cost, provide greater access and additional alternatives, along with safer products. However, the July 1 legalization of hemp-based (related to cannabis) products did not contain proper guidance often found in other states that allow use of hemp-based products. The Minnesota Board of Pharmacy has authority over drug products intended for human and animal consumption. However, products that contain hemp-derived substances are not required to be licensed and the Board will not test or approve such products at present.
It must be noted that cannabis remains a controlled substance and remains illegal at a federal level. Employers may continue to drug test and refuse to hire candidates who test positive even in the states that have approved its use.
However, certain cautions must be exercised:
- For multistate employers, consideration of drug testing and discipline on a state-by-state basis must be considered. Currently 19 states (with another three anticipated in 2022) allow for recreational use of marijuana. As employers conduct pre-employment, reasonable suspicion, safety sensitive positions and post-accident testing, a state-by-state compliance review should be conducted.
- Drug testing will show a positive result for THC in hemp-based products.
- Minnesota law requires that employers must have a written drug test policy before any testing is performed and that employees must acknowledge and approve consent ahead of time. The policy must contain information such as:
- Who is subject to testing.
- When testing required.
- Discipline that might occur with a positive test.
- The right to refuse testing and the consequences of refusal.
- The employees right to explain a positive result and right to retake the test.
- Additionally, Minnesota law prohibits automatic denial of employment for persons testing positive for marijuana if they are on the Minnesota Medical Marijuana Registry list for medical conditions such as chronic pain, post-traumatic stress disorder, cancer, seizures, obstructive sleep apnea and other conditions.
- Many states who have legalized recreational marijuana have abandoned the state medical marijuana registry providing additional challenges for employers to address reasonable accommodation issues and avoid charges of discrimination.
- Employers should note that nothing in the existing laws allow for employees to use, possess or be impaired by medical cannabis or hemp products while on duty. Consideration should be made for employees on the registry list working in safety sensitive positions.
- Minnesota’s new law may create additional concerns with low levels of THC from the lawful consumption of products containing THC. Many drug tests do not identify the level of THC in the employees’ blood and the test will only register “positive,” “negative” or “cannot rule out THC.” This may present issues with discrimination and reasonable accommodation including disclosure of medical conditions.
- While employees may consume legal products in their personal time and employees may not be under the influence of legal or illegal drugs in the workplace, traces of THC may remain in the bloodstream for extended periods of time (up to 30 days). This may result in employees challenging the results and arguing that they purchased the product legally and were not under the influence.
- Reasonable suspicion testing guidelines and manager training including checklists and protocol should be reviewed.
- Recently, the Occupational Safety and Health Administration (OSHA) stated that post-accident drug testing should not be done automatically. Only when there is a reasonable belief that drug or alcohol use may have contributed to the accident should post-accident testing be conducted. The rationale from OSHA is that many employees may be reluctant to report accidents if automatic drug testing is required.
- Based on a tight labor market and the need to attract talent, the legalization of marijuana in many states as well as this recent change in THC use, many employers may abandon pre-employment drug testing.
Anticipate additional changes to THC laws
It’s likely that the Legislature will move to tighten licensing and regulation of the products and distribution system in the near future. It’s also possible that this serves as a steppingstone toward legalization of recreational marijuana use in Minnesota although several obstacles remain. Some municipalities may act to ban the sale of hemp-based THC products in their communities.
Larry Morgan, MA, SPHR, SHRM-SCP, GPHR, is the MNCPA HR Hotline expert. He is also owner of Orion HR Group, LLC, an independent consulting organization specializing in the alignment of compensation and benefit programs with business strategies. He has more than 30 years of human resources (HR) experience in industries such as retail, high-tech, manufacturing and financial services.