Webinar Recap: The Impact of Minnesota’s New THC Law on the Workplace

by Leah Davis, CPA

If you’re like most employers, you likely have burning questions about the new THC law that passed in Minnesota this summer. From determining if your drug testing policies need to change to understanding what to do if you suspect employee impairment, the new law can create some tricky situations.

To help you assess its impact on your workplace, Abdo HR Advisors recorded a webinar with Mankato-based law firm Blethen Berens as well as the Minnesota River Valley Drug Task Force on this evolving topic.

What follows is a quick recap of what we discussed.

First, a disclaimer:

All materials have been prepared for general information purposes only. Information provided is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice. Information presented and provided and your receipt or use of it is not intended to convey or constitute legal advice and is not a substitute for obtaining legal advice from a qualified attorney. You should not act upon any such information without first seeking qualified professional counsel on your specific matter.

Do DOT drug testing requirements still apply?

The short answer is yes. It’s important to remember that marijuana and THC use is still illegal at the federal level. This goes for the federally regulated programs, such as Department of Transportation (DOT), NTSB, Federal Aviation Administration (FAA), railroad workers, etc., that apply to your organization. Commercially licensed (CDL) drivers, for example, will continue to be subject to drug testing requirements, standards, and processes.

Should you update your company’s drug testing policies as a result of new Minnesota THC use laws?

Most likely, yes—especially with regard to pre-employment screening. The new reality is that, for many employees, a positive THC test without evident impairment is no longer a legal reason to take any type of employment action, including withdrawing a job offer. This is because THC use in the form of edible and drinkable products is now considered legal off-duty conduct under Minnesota law.

In most cases, employers should carefully review and consider updates to existing drug testing policies and practices. (Your drug testing panel can be changed to exclude THC if you choose.)

Should you handle your employees’ medical marijuana and off-duty THC product use any differently?

No, not really. Keep in mind that THC can remain in a person’s system for up to 30 days. Testing levels can only give clues as to how often and how much a person uses. A positive test result does not definitively indicate the employee is currently impaired.

One important thing to remember, however, is that employers can and should still prohibit the use and/or possession of medical marijuana and THC products in the workplace.

If you don’t test, how will you keep your employees safe in the workplace?

As an employer, you are still obligated to maintain a safe working environment for your employees. Instead of focusing on test results, train managers and leaders to focus on understanding and recognizing impairment.

Know the signs of impairment as well as other indicators and address impairment symptoms directly, with or without a drug test. If you do suspect impairment, it continues to be critical that you fully document the objective signs and all the actions you take.

Can you still drug test and enforce a drug-free workplace?

Yes, with a few caveats. You can still test both applicants and employees for THC as part of your regular testing protocol. That said, if you get a positive test result, you’ll need to further analyze it: Are there signs of impairment or evidence of possession or use on the job? Does the employee’s position fit any of the exceptions of the lawful consumable product statute (i.e. regulated by the DOT, NTSB, etc.)? This also means you should be prepared to articulate reasons for discipline, termination or refusal to hire someone beyond a positive THC test result.

The bottom line: You can still enforce a drug-free workplace without testing policies by adhering to the following best practices.

• Training managers and/or supervisors to spot impairment
• Being strategic about interactions with employees before and during work hours to proactively watch for signs of impairment
• Documenting, documenting, documenting
• Addressing performance and conduct concerns as they arise
• Prohibit employees from being under the influence of any drugs, legal THC products or alcohol at work
• Prohibit the possession or use of any drugs, legal THC products or alcohol at work or on breaks
• Terminate employees, without a drug test, based on conduct, performance, or documented impairment

Navigate the new THC laws with confidence.

The new Minnesota THC law can make it difficult to know how and if your workplace policies should change and how these changes could impact your daily operations.
If you have questions about how this law applies to your organization, we’re here to help. Let us know how we can shed light on the ins and outs of these regulations, so you can move forward with confidence. Contact us today.