It’s been a while since Wiley Reber Law has brought you any updates on developments in the world of legal marijuana, but something big happened in Minnesota during the last legislative session, so we thought it was time to end the drought and give the people what they want.
Many were aware of the 2018 Federal Farm bill that legalized the production of hemp, so long as it had a concentration of 0.3 percent or less Delta 9 tetrahydrocannabinol (THC). Hemp was removed from the Schedule 1 list of controlled substances as long as it met those requirements. In 2018, Minnesota followed suit, legalizing the cultivation, possession and sale of hemp products. This led to the proliferation of CBD, which is also found in the hemp plant (and in literally every corner store in every town in Minnesota). However, one issue that occurred with the legalization of hemp was that while the state removed hemp from its Controlled Substances Act, it did not remove Delta 9 from the Act. Because of this, people could still be convicted of drug possession even if the item they possessed was derived from a plant that had been removed from the Controlled Substances Act.
In order to right this wrong, the Minnesota legislature stepped in to amend the statute that legalized the sale of cannabinoids derived from hemp to state that “edible cannabinoid product[s] may be sold for human…consumption…provided that a product … does not contain more than 0.3 percent of any tetrahydrocannabinol and an edible product does not” exceed legal limits. Those products that meet the requirements established by the statute are no longer considered controlled substances. With that, the legislature (and if recent reports are true, some members unwittingly) legalized the sale of edible THC products in Minnesota.
But what does that mean for employers?
In short, not much. Minnesota has always had some level of protection for employees through its Drug and Alcohol Testing in the Workplace Act (DATWA), which requires employers who wish to test employees to have a drug testing policy, and follow certain steps following positive drug tests for their employees. That hasn’t changed at all, and no additional protections were provided for individuals who use legal THC as a result of the changes to the Controlled Substances Act. Employers are still allowed to test their employees for drug use as long as they follow the law under DATWA. One likely outcome of THC being legalized is employers will likely have a lot more positive test results from people who are being tested for pre-employment drug tests and tests that occur post-hire.
Minnesota also has what is called a “lawful consumable products” law, which states, “An employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours.” However, public employers are exempt from that statute, and private employers have two major exceptions at their disposal if they wish to continue testing.
First, employers may test if drug use relates to a “bona fide occupational requirement and is reasonably related to employment activities or responsibilities of” an employee. Second, employers may test employees if it “is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities owed by the employee to the employer.” Therefore, as long as an employer is able to create legitimate expectations for employees that require them to remain drug-free, or establish a company philosophy with which employee drug use conflicts.
Furthermore, while hemp and the sale of hemp derivatives, such as THC, is legal, marijuana is illegal under federal law. Those employees who are subject to federal drug testing, such as drivers with Commercial Drivers Licenses, as still subject to federal rules on drug testing. At this time, drug tests simply cannot tell the difference between legally-consumed THC and THC that is the result of illegal marijuana. Therefore, if a driver tests positive for THC during a DOT drug test, it does not matter if the THC was consumed legally or illegally; they still fail the test.
Also, what happens with employees who carry firearms as part of their job and their employers? Under federal law, anyone “who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act)” is forbidden from possessing firearms. Many law enforcement entities (rightly) test applicants and employees for unlawful drug use prior to hiring them.
As a reminder, employer can still look to employee behavior and look for reasonable indications that an employee is impaired on the job, and, if its policy allows, conduct reasonable suspicion testing under DATWA.
The world of employment and controlled substances will continue to overlap. As more of the substances that were once viewed as harmful are becoming more accepted worldwide, employers will continue to see increased use by their employees. If you, or your organization, need assistance in navigating the ever changing world of employee drug use and testing, contact Wiley Reber Law, for legal advice that works.