Minnesota recently passed a law that allows the sale and consumption of edible cannabinoid products. This law, signed on June 2, 2022, allows edible cannabinoid products a maximum of five milligrams of tetrahydrocannabinol (THC) per serving or a maximum of 50 milligrams for any one package. However, it is necessary to remember that marijuana is otherwise still illegal in Minnesota, and it is legal only to consume THC derived from hemp within the stated limits.

Pre-employment Drug Screening

This new law could make pre-employment drug testing more complicated despite the use of medical marijuana already being legal in Minnesota. Under this new law, some edible cannabinoid products are legal; therefore, more candidates are likely to test positive for THC. Because of this complication, candidates not listed on the Minnesota Medical Cannabis Registry may test positive for THC. Therefore, it will be challenging to determine whether this is because of legal consumption. Often, drug tests only give a positive or negative result, not the level of THC. Thus, there is no means to determine whether the candidate legally consumed a cannabis product. Denying a hire of an individual based on a “positive” test may also subject an employer to liability if the employee maintains a medical cannabis card and defines the reasons for the positive test to the employer with the same.

Testing Employees

The new law does not prohibit employers from drug testing employees suspected of working under the influence. Although employees can use legal products with THC in their free time, they cannot be under the influence of these products during work. Employers should have a policy addressing disciplinary actions if they suspect an employee is under the influence of drugs in the workplace, including the documentation process.

This law, however, does not clarify concerns regarding a reasonable suspicion test. While employees can consume THC in their free time, they may not be under the influence of legal or illegal drugs while working. Employers may choose to enforce a specific reasonable suspicion protocol process, which may encompass checklists, interviews, and other documentation to ensure the reasons for the test are documented and supported.

Drug Testing for Safety Sensitive & Random Drug Testing

According to Minnesota law, should an employee test positive, the employer must provide a written notice explaining the employee’s right to explain the result and the employer’s right to request any information concerning the outcome. The employer’s right includes questions about prescriptions, over-the-counter medications, and other questions relevant to the test’s reliability. The employee also has the right to submit any additional information to the employer that may explain the positive test result. 

After the employer has obtained information about the employee’s use, they can decide how to handle the situation based on the explanation. First, however, employers must ensure they have policies to deal with these situations and consistently follow the procedures. It is also essential to ensure that any decisions they make comply with the law.

Final Thoughts

Employers in Minnesota should consider reviewing their drug screening programs to ensure they comply with this new law. It may be time for some employers to determine whether testing for THC is worthwhile. However, because testing for THC is not required by law, testing may prove moot for many employers.

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