When Governor Tim Walz signed House File 4065 into law last summer, Minnesota joined the growing number of states that have legalized some form of marijuana for recreational use. As of July 1, 2022, individuals in Minnesota who are over the age of 21 can lawfully purchase and consume edible products containing hemp-derived tetrahydrocannabinols (THC). With legal edibles becoming more widely used across Minnesota, it is critical that workers understand how legal THC consumption impacts workplace regulations and employee rights.
What does the new law say?
Only certain types of THC consumption are legal.
Minnesota’s new law allows the sale and consumption of edible cannabinoid products containing no more than five milligrams of any THC in a single serving (including Delta-9). A single package for sale cannot contain more than a total of 50 milligrams of THC.
Employers cannot prohibit employees from engaging in the lawful consumption of THC outside of the workplace.
In Minnesota, it is unlawful for an employer to “refuse to hire a job applicant . . . because the applicant 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.” Minn. Stat. § 181.938, subd. 2. “‘[L]awful consumable products’ means products whose use or enjoyment is lawful and which are consumed during use or enjoyment.” Id. Minnesota’s recent legislation makes THC a “lawful consumable product” under Minnesota law. Minn. Stat. § 151.72.
Under certain circumstances, employers can still drug test for THC even if consumed in edible or liquid form.
Employers can still prohibit employees from possessing and using THC during work and on work property. Under most circumstances, THC use will likely be treated similarly to alcohol—employees may legally consume THC during their leisure time and employers can prohibit their workers from possessing THC at work or being under the influence of THC while working.
Generally speaking, Minnesota employers can randomly drug test employees in safety-sensitive positions and test other employees where there is a reasonable suspicion of intoxication while working. In Minnesota, drug testing laws require an employer to have a written drug testing policy, and employees must acknowledge and consent to the policy before testing. These policies must include the following information: (1) who is subject to testing; (2) when testing is required; (3) consequences of a positive test;
(4) the right to refuse testing and the consequences of refusal; and (5) employees must have the right to explain positive test result and retake test.
Employees who use marijuana as part of a treatment plan for a disability or medical condition may have additional protections under Minnesota law.
Under Minnesota’s medical cannabis law, employers cannot discriminate against any employee legally using marijuana to treat a medical condition. Minn. Stat. § 152.22. However, to be protected by Minnesota law, a worker needs to have a qualifying medical condition and enroll in the state’s medical cannabis registry. Minn. Stat. § 152.22, subd. 9.
The attorneys at MJSB Employment Justice can help you navigate the shifting and complex legal landscape around THC legalization in Minnesota. Whether you are being wrongly forced to take a drug test, have tested positive, or are being discriminated against because of your legal use of medical marijuana, MJSB Employment Justice can answer your questions and advocate for you. Contact us for more information.