December 5, 2022
Wanta Co-Authors Article on Newly Legal THC and MN Employment Laws
Managing Member Shawn Wanta co-authored an article with Susan Ellingstad of Lockridge Grindal Nauen P.L.L.P that was published in the December 2022 issue of Bench & Bar of Minnesota, the official publication of the Minnesota State Bar Association. The article, titled “Something to chew on: How newly legal THC edibles interact with Minnesota employment laws”, explores Minnesota’s recent legalization of certain types and quantities of hemp-derived THC and what that means for employers in relation to the LCPA, DATWA, and other statutes.
In the article, Shawn Wanta and Ms. Ellingstad discuss the Lawful Consumable Products Act (LCPA), a statute that prohibits an employer from refusing to hire, disciplining, or discharging an employee because the employee engages in the use of “lawful consumable products”. They examine how “lawful consumable products” is defined in the statute, and how that definition has not yet been revised to provide clarity with the recent legalization of hemp-derived THC products. They advise that employers should presume the newly legal products fit under the definition of a “lawful consumable product” in the LCPA and act accordingly.
Wanta and Ellingstad also discuss the Drug and Alcohol in the Workplace Act (DATWA), which outlines strict requirements for employers in regards to drug testing policies, notices, and protocols. Following the guidelines of DATWA, employers are allowed to take adverse action against an employee after a positive drug test for a controlled substance. As hemp-derived THC products are now legal, they are no longer considered a controlled substance. However, marijuana-derived THC products are still a controlled substance, and at this time it is effectively impossible to differentiate the two in a drug test. Employers who take adverse action after a positive THC drug test risk violating the LCPA if that employee consumed hemp-derived THC products. That being said, the authors point out that it may be just as hard for that employee to prove their consumption was lawful as it is for the employer to prove it was not. They conclude by advising employers to educate themselves about hemp-derived THC and to ensure their policies and actions are compliant with DATWA, the medical marijuana statute, and the LCPA.
Shawn Wanta is a founding partner of Wanta Thome PLC. If you believe your drug and alcohol testing rights have been violated, click here or call 612-252-3570 to speak with Shawn or any one of our attorneys today.