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THC law in Minnesota forces employers to revisit drug testing policies

Without clear guidance, many businesses are scrambling to adjust to the new law.

MINNEAPOLIS — Hemp-based THC products have been legal in Minnesota for a little more than three months now, but employers across the state are still struggling to adjust to the brand-new law.

Lauryn Schothorst, the Minnesota Chamber of Commerce director of workforce management policy, said the lack of clear guidance has left many businesses scrambling to review their policies like drug testing. 

"The first thing we heard from employers was, 'What just happened?'" Schothorst said. "Then it's, 'OK, how do we ensure that our workplace culture and our workplace safety needs or positional safety needs are maintained legally?' Changing statutes in Minnesota and around the country add confusion to the compliance question."

Schothorst said the Minnesota Chamber of Commerce held a webinar shortly after the law passed to answer questions from businesses about how to handle the new THC measure. 

There are a number of ambiguities for employers to consider, namely the fact that an employee might test positive for THC after consuming a legal hemp-based product like a gummy or THC-infused seltzer. 

"Broadly speaking, yes, that's the heart of the matter," Schothorst said. "What is intoxication? How do you discern intoxication? Where is the source of consumption? You can't really differentiate any of those things at this point in time."

Phyllis Karasov, a labor attorney and shareholder at Larkin Hoffman, said many businesses had already been reconsidering drug testing policies for marijuana, even before the new THC law took effect in Minnesota. That's because more employees are using marijuana, and the workforce shortage has made it more difficult for employers to be picky about who they hire.

"THC has now accelerated that because employers are seeing an increase in positivity in their drug tests and are kind of deciding, 'you know what, it's okay,'" Karasov said. "I have been asked many times to revise drug and alcohol testing policies that actually list the type of drugs that are being tested for, and to either remove hemp-based THC or totally remove marijuana."

Adding to the uncertainty is the fact that Minnesota already has a "lawful consumable products" law on the books that prevent employers from firing employees who use legal substances outside of work hours. Since the Minnesota legislature did not write clear regulations around the legalization of hemp-derived THC, it's not yet clear if these legal products count as "lawful" during off-hours.

"It's very possible it does, but until either there's a court case that gives a definitive answer, or the legislature revisits the consumable products statute, we don't know," Karavov said.

Previously, the author of the THC bill has said more regulations will need to be considered at the next legislative session -- but that may hinge on the outcome of the November elections.

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