By Shawn J. Wanta and Susan E. Ellingstad
Minnesota has one of the most restrictive drug and alcohol testing statutes in the country. It also has a statute protecting the rights of Minnesota employees to consume all legal food and beverages outside of working hours with very few limitations by employers. Most employment drug panels include a test for cannabis use. By virtue of a recent change in state law, employees can legally consume food and beverages that would cause them to fail such drug tests. This article discusses the intersection of Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA), Lawful Consumable Products Act (LCPA), and the state’s recent legalization of food and beverages containing certain types and quantities of THC.
On July 1, 2022, Minnesota legalized the sale of products containing hemp-derived cannabinoids with delta-9-tetrahydrocannabinol (delta-9 or delta-9 THC), subject to certain packaging and dosing restrictions.1 Delta-9 is the primary cannabinoid that serves to impart the psychogenic “high” feeling associated with marijuana. The law limits products containing hemp-derived THC to 5 milligrams or less of THC per serving, or 50 milligrams per package.2 The law also removed THC derived from industrial hemp from Minnesota’s list of Schedule I drugs.3 Both hemp and marijuana are types of cannabis, and both contain delta-9 THC. Industrial hemp is a federally legal product, provided it contains less than 0.3 percent delta-9 by dry weight.4 Under the federal drug schedules, THCs are Schedule I drugs, except when derived from industrial hemp.5 This means that products containing hemp-derived THC (in certain amounts) are legal under both Minnesota and federal law. Marijuana, however, is still illegal in Minnesota except for certain medical purposes,6 and it remains illegal under federal law.
The chemical compound in hemp-derived delta-9 is the same as marijuana-derived delta-9. That poses an issue for employers who require employees or job applicants to take a drug test seeking to detect marijuana use: The test will produce a false positive in applicants or employees who have consumed hemp-derived THC if it is only looking for delta-9 and its metabolites. There is currently no commercially available way to differentiate between the type of product consumed (hemp-derived THC versus marijuana), nor is there a reliable testing method for marijuana intoxication, or to measure the time since consumption.
Testing prospective or current employees for delta-9 THC implicates Minnesota’s LCPA and DATWA statutes. Because the recent change in the law came without guidance regarding existing drug-testing policies, many Minnesota employers are scrambling to balance their interest in maintaining a drug-free workplace, particularly in safety-sensitive positions, with avoiding legal liability for drug testing.
The statutory framework
Lawful Consumable Products Act (LCPA)
The LCPA prohibits an employer from refusing to hire, disciplining, or discharging an employee because “the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products” if they do so out of the workplace and during non-working hours.7 The statute defines “lawful consumable products” as products “whose use or enjoyment is lawful and which are consumed during use or enjoyment,” including “food, alcoholic or nonalcoholic beverages, and tobacco.”8 The statute excepts bona fide occupational requirements “reasonably related to employment activities or responsibilities of a particular employee or group of employees….”9 Employers may also restrict employee consumption of lawful consumable products if such a restriction is necessary to avoid an actual or perceived conflict of interest with any responsibilities owed by the employee to the employer.10
While the Minnesota Legislature legalized hemp-derived THC products, it did not revise the LCPA to clarify whether those products are or are not considered “lawfully consumable products,” so employers should presume they are. California, in contrast, passed legislation (effective in 2024) that expressly prohibits discrimination against employees who consume marijuana legally outside of work hours.11
Drug and Alcohol Testing in the Workplace Act (DATWA)
DATWA provides that employers may perform tests for “drugs,” defined as controlled substances under the Minnesota Controlled Substances Act.12 This includes any “drug, substance, or immediate precursor in schedules I through V of section 152.02.”13 Employers who comply with very specific statutory requirements regarding policies, notice, and testing protocols may require drug and alcohol testing for job applicants and
employees in certain circumstances: routine physicals, random selection, reasonable suspicion for drug or alcohol impairment, and after an employee returns from a chemical dependency treatment program.14 Testing laboratories conduct an initial screening test for drugs or alcohol, and then must conduct a confirmatory test on all samples that produce a positive result.15 Subject to DATWA’s strict requirements, employers may take adverse action, including discharge, against an employee who tests positive for use of a controlled substance—a category that now excludes hemp-derived THC.16
When metabolized, delta-9 breaks down into 11-hydroxy-THC (hydroxy-THC) and 11-nor-delta-9-tetrahydrocannabinol-carboxylic acid (THC-COOH). Hydroxy-THC is psychoactive17 and causes impairment, but does not stay in the body long before being converted to a secondary metabolite of THC called THC-COOH. THC-COOH is not psychoactive but stays in the body for much longer—usually around one month. Most urine tests screening for marijuana detect only THC-COOH.
Two main types of urine drug testing are utilized by employers: an initial screening test using an immunoassay, and a confirmatory gas chromatography/mass spectrometry (GC-MS) test. Immunoassays generally use antibodies to detect the presence of drug metabolites or classes thereof and are typically sensitive to several THC metabolites. Confirmation testing is specific to the THC-COOH compound.
Because THC-COOH remains in a person’s system long after any psychoactive compounds have been metabolized, the test is unreliable as an indicator of recent marijuana use or impairment. Testing for delta-9-tetrahydrocannabivarin (THCV), a plant cannabinoid, did not prove helpful for distinguishing oral dronabinol (an FDA-approved synthetic THC drug) users from illicit plant marijuana users. Researchers have also considered using hydroxy-THC as a biomarker for recent marijuana consumption or impairment. Unfortunately, researchers found that hydroxy-THC can remain in heavy cannabis users’ urine for up to 24 days after cessation in use, undermining its effectiveness at testing recency of use or impairment.
Because of those difficulties, it is currently impossible to test for marijuana without also testing for legal consumable products that contain hemp-derived THC. The results of any drug tests cannot indicate whether an employee consumed delta-9 during working hours or on work premises, or whether the employee who used products outside of work could still be impaired during working hours.
Delta-9 THC under Minnesota employment laws
Notably, considering H.F. 4065’s authorization of “edible cannabinoid products”—such as gummies and seltzers—the LCPA applies to food and beverages.18 If an applicant or employee consumes hemp-derived delta-9, they would test positive for marijuana. While the test would be positive for the chemical compound delta-9, the result is false if it fails to differentiate between the sources of delta-9, one of which is legal while the other is not. In this situation, if the employer chooses not to hire, to discipline, or to discharge the individual based on this test, it risks taking an adverse employment action based on lawful consumption, a violation of the LCPA.
Given that THC compounds derived from industrial hemp are no longer scheduled drugs under schedules I to V, a test for delta-9 THC that does not differentiate between hemp- and marijuana-derived compounds falls within the scope of DATWA because marijuana-derived THC remains a scheduled drug, despite the removal of hemp-derived THC from the schedules.19
An employee also has a right under DATWA to relay information to the employer to explain or question the reliability of a positive drug test.20 Employees “must be given written notice of the right to explain the positive test, and the employer may request that the employee or job applicant indicate any over-the-counter or prescription medication that the individual is currently taking or has recently taken and any other information relevant to the reliability of, or explanation for, a positive test result.”21 The employee may then “submit information to the employer, in addition to any information already submitted… to explain that result.”22
That said, it may be just as difficult for an employee to prove their consumption was lawful as it is for the employer to prove the opposite.
Practical considerations for employers
In light of the recent change in state law, Minnesota employers who screen job applicants for marijuana may find increasingly more candidates testing positive for low levels of THC than previously. That screening undoubtedly will capture applicants who legally consume hemp-derived THC. If such test results are used to screen out applicants from proceeding in the hiring process, not only will they eliminate a pool of candidates during a labor shortage, but not hiring individuals who partake in legal consumable products runs afoul of the LCPA. Employers must also take care not to discriminate in hiring against qualified applicants who lawfully use THC products for a specific medical reason.23
Employers who conduct random or safety-sensitive drug testing should also be mindful of the new law. Employers have the right to prohibit employees from using, possessing, and being under the influence of THC during work hours and in the workplace, which is particularly critical for safety-sensitive roles.24 But the legalization of some THC products highlights the shortcomings of these tests. As described above, they do not inform the employer when the employee consumed the substance or whether the employee is impaired. Employers are already navigating these challenges in the context of medical marijuana use. Now Minnesota employers must also balance the benefits of testing employees against the risk of liability under LCPA.
At a minimum, following a positive test result in the context of a random or safety-sensitive drug test, employers should not unreasonably dismiss the employee’s explanation of the result—which employers are statutorily required to consider.25 This will require educating those in the company who evaluate such test results that there is a chemical distinction between hemp-derived and marijuana-derived THC, and that drug tests cannot distinguish between the two. Employers should also consider whether random testing provides a benefit that outweighs the risks, or whether to limit testing to safety-sensitive positions. Employers should, in turn, revisit their job descriptions to ensure that positions subject to drug testing under the safety-sensitive provision of DATWA are properly classified as safety-sensitive to prevent overly broad testing.
Employers must ensure all decisions to discipline or discharge an employee following mandatory drug testing not only comply with DATWA and the medical marijuana statute, but now the LCPA as well.
SHAWN J. WANTA is a founding partner of the employment law firm Baillon Thome Jozwiak & Wanta LLP. He represents employees in cases of discrimination and retaliation, including claims under Minnesota DATWA.
SUSAN E. ELLINGSTAD is a partner with Lockridge Grindal Nauen P.L.L.P. and heads the firm’s employment law department. She represents employers in cases involving employment discrimination and harassment under federal and state employment statutes.
The authors wish to thank Katja D. Lange (University of Minnesota Law School, 2023) for her assistance on this article.
Notes
1 See Minn. H.F. No. 4065.
2 Id.
3 Id.
4 7 U.S.C. §1639o.
5 21 U.S.C. §812(c)(c)(17).
6 Minn. Stat. §152.32 subd. 3(c). (“Employers may not discriminate against an employee based on their status on the Minnesota Medical Cannabis Registry.”)
7 Minn. Stat. §181.938 subd. 2.
8 Id.
9 Id. subd. 3.
10 Id.
11 California AB-2188 Discrimination in employment: use of cannabis.
12 Minn. Stat. §181.950 subd. 4.
13 Minn. Stat. §152.01 subd. 4.
14 Minn. Stat. §181.951.
15 Minn. Stat. §181.953 subd. 3.
16 The amendment to the tetrahydrocannabinols drug schedule section reads: “except that tetrahydrocannabinols do not include any material, compound, mixture, or preparation that qualifies as industrial hemp as defined in section 18K.02, subdivision 3.” H.F. 4065 at 367.25.
17 A psychoactive drug acts primarily on the central nervous system, altering brain function and resulting in temporary changes in perception, mood, consciousness, and behavior.
18 Minn. Stat. §181.938.
19 Minn. Stat. §181.951 subd. 1. Cf. Williams v. Nat’l Football League, 794 N.W.2d 391, 397 (Minn. Ct. App. 2011) (“Because bumetanide is not a drug within the meaning of DATWA, the statute does not apply to require notice of test results confirming the presence of bumetanide”’).
20 Minn. Stat. §181.953 subd. 6.
21 Id.
22 Id.
23 Minn. Stat. §152.32 subd. 3(c).
24 See Minn. Stat. §181.950 et seq.
25 Minn. Stat. §181.953 Subd. 6.