The rapidly expanding lineup of foods and beverages containing the active ingredient in marijuana that Minnesotans 21 and older now can purchase legally is only the tip of the iceberg. And the “wacky” state law making this possible also creates some gray areas for employers, employees, consumers and businesses.
That’s according to attorneys who offered updates on cannabis law in Minnesota at a continuing legal education program offered Monday by the Labor and Employment Law section of the Minnesota State Bar Association.
Minnesota’s legal cannabis law, which took effect in July, allows the sale of some food and drink products with small but intoxicating levels of hemp-derived THC — tetrahydrocannabinol, the ingredient that produces the high for which marijuana is known. The law allows for the sale and purchase of food and drink products with up to 5 milligrams of THC per serving and 50 milligrams per package and no more than 0.3% THC by weight.
With THC-infused seltzers, gummies, hard candy and other products proliferating and widely available in many shops, bars, restaurants, breweries and other locations, Minnesota stands alone nationally.
“The wacky way that Minnesota has written its law put it really in a great and interesting position,” said Carol Moss, attorney at Hellmuth & Johnson. “Minnesota is the only state in the country in which you can go into a restaurant and get a THC-infused beverage with your pizza. There might be some local city ordinances that prevent such, but under Minnesota law there are many bars in Minneapolis that are selling THC-infused drinks, and that’s not allowed in any other state. Most other states you have to go to a big dispensary to get any kind of THC products.”
While some lawmakers have said they will seek to reverse the legalization of THC products, Moss doesn’t see that happening.
“These products really are popular, and I don’t see how they could be put back, how they could put the toothpaste back in the tube,” Moss said.
That’s not to say the current law is without problems and may see some fine-tuning. The state Board of Pharmacy, which has the authority to enforce the legal cannabis statute, receives no extra funding for this purpose and has limited enforcement ability, Moss said.
No manufacturing regulations are in place for production of THC products, Moss said. Once products contain cannabinoids, or chemicals derived from cannabis, they’re no longer considered food, so companies don’t have to have the license otherwise required to sell food and beverages in the state and aren’t subject to inspections.
“I have clients who are manufacturers and I tell them, get your (standard operating procedures) in line, act as if you’re going to get a knock on the door from an inspector at any moment regardless of whether that’s going to happen,” Moss said. “Eventually there will be regulations in place and you want to make sure that you’ve got everything in place. And you don’t want people to be injured from your products.”
The state, unlike most others, has no special licensing requirements for someone to sell THC products, Moss said. As a result, some cities are passing their own licensing ordinances, creating confusion over what can be sold and who can sell it.
“It’s really problematic for the industry,” Moss said. “I think what you’ll see is, next year, we’ll hopefully have a statewide licensing law.”
The state’s legal cannabis law adds further complexity for employers, according to Grant Goerke, an associate in Littler’s Minneapolis office and the other attorney presenting at Monday’s program. The first major change in dealing with marijuana came in 2014 when the state’s medical marijuana program launched.
Before then, when an employee tested positive for THC or marijuana under a lawful drug testing program, “it was kind of an open and shut case,” Goerke said.
“That test alone was enough to say, OK, this person is doing something unlawful under both federal law and the laws of the state of Minnesota, so we’re going to go forward with some sort of adverse action,” Goerke said, though the state has a second-chance opportunity for employees to who want to go through that process. “There was a lot more leniency for employers when it came to marijuana and how to deal with that in the workplace.”
In introducing the medical cannabis program, the state also created employee protections, prohibiting discrimination based on medical marijuana use, Goerke said.
Employers cannot discriminate based on someone’s registry with the medical marijuana program or on positive drug tests for marijuana unless the employee used, possessed or was impaired by medical cannabis while in the workplace or during employment hours, Goerke said. An exception exists, though, if failing to discriminate would violate federal law or cause the loss of a federal licensing benefit. What that means isn’t clear, though, and hasn’t been tested in the case law.
The medical cannabis law creates a presumption that a patient who is registered in the program is engaging in the authorized use of the product, Moss said. Licensed professionals including lawyers and health care practitioners cannot be subject to discipline for being in the program. Being in the medical marijuana program cannot be used against a parent in family law matters, although they must lock up their marijuana and cannot use it in front of children.
Employers, according to Georke’s presentation, can prohibit employees from coming to work under the influence and using or possessing lawful or unlawful THC products at work. They still can test employees under policies that comply with the law and test randomly for “safety-sensitive” jobs.
A question for employers is what to do now with a positive result on a drug test for marijuana, Goerke said. The legal cannabis statute does not discuss protections for employees or applicants who test positive for marijuana because they have consumed a lawful THC product. Under Minnesota law, employers can’t take adverse action against an employee based on use of law consumable products, including food, alcohol, non-alcoholic beverages and tobacco, when not at the workplace and not during working hours.
“Do they still want to test for these products,” Goerke said. “Or do they want to focus on their prohibitions against use, possession or being under the influence in the workplace? … It’s a tough balance and whether intentionally or not the Minnesota Legislature has put a lot of employers back on their heeds a little bit to figure out, how do we want to deal with this expanding issue? And as the regulations come further, what can we expect to see?”