Many employees and employers have heard stories about drug testing on T.V. shows, movies, and other popular media. The common belief is that employers can use drug testing on employees whenever and however they so desire, and the employees have no recourse. But this is not true! Minnesota law strictly lays out when an employer may or how they can use drug testing on employees. Furthermore, Minnesota’s law covers independent contractors and employees of independent contractors.
Minnesota Drug and Alcohol Testing in the Workplace Act
Minnesota employers may use drug testing on employees, but only according to the procedures laid out in the Minnesota Drug and Alcohol Testing in the Workplace Act or DATWA. All employers drug testing employees in Minnesota are covered by DATWA unless they are conducting federally mandated drug testing, but there are some exceptions to this. Minnesota employers have no legal duty to drug test unless they are mandated by federal law.
An Employer Can Only Test if They Have a Written Policy
Despite conventional wisdom, an employer may not test an employee for drugs or alcohol at will. First, an employer must have a written drug and alcohol testing policy in place that contains the required minimum information in the statute. The basic policy must contain at least:
- The employees or applicants that are subject to drug testing.
- When a drug and alcohol test may be required or requested.
- The right of the employee or applicant’s right to refuse and the consequences of the refusal.
- Disciplinary action that will be taken for a positive test.
- The right of an employee or applicant to explain a positive test result on a confirmatory test or right to pay for a confirmatory retest.
- And any other appeal procedure available by the employer.
Furthermore, the employer must provide notice to all employees or applicants. Beyond posters in the workplace, this is usually included in an employee handbook, which employers should have drafted by an attorney.
Can an Employer Randomly Test an Employee under DATWA?
The answer to this is both yes and no because it depends on the conditions. DATWA only allows testing of certain employees and at certain times. Random testing may only be done in two instances: (1) is where employees work in “safety-sensitive positions,” or (2) they are professional athletes subject to a collective bargaining agreement permitting random testing. Considering the rarity of professional athletes, let’s focus on safety-sensitive positions. DATWA defines a safety-sensitive position as: “a job, including any supervisory or management position, in which an impairment caused by drug or alcohol usage would threaten the health or safety of any person.” Commonly this includes employees that use equipment or tools that can easily harm someone such as an operator in a machine shop, operators of vehicles, or employees that make health or safety decisions for others such as teachers or medical professionals. Finally, the testing must actually be random.
When Else Can Employers Test Employees?
Minnesota employers can test employees in four situations: (1) job applicants upon conditional job offer, (2) annual physical exam, (3) reasonable suspicion, and (4) as a part of a treatment program under an employee benefit program.
As I mentioned before, job applicants are covered by DATWA. Job applicants may be tested upon a conditional offer of employment. Beyond new hires, an employer may test an employee in the following three situations. An annual physical exam that is routine may include the drug and alcohol testing of an employee if the employee is given two weeks written notice that a drug and alcohol test may be requested. As a side note, physical examinations and the information may run afoul of other laws like the Americans with Disabilities Act or GINA, The Genetic Information Nondiscrimination Act.
The broadest situation where an employer may test an employee is upon reasonable suspicion that:
1. The employee is under the influence of drugs or alcohol at work.
2. The employee has broken the employers written rules about the use, sale, transfer, or possession of drugs or alcohol while the employee is at work, on the employer’s premises, or while operating the employer’s vehicle or machinery.
3. The employee has sustained a workplace injury or caused a workplace injury to another employee.
4. Or the employee was involved in a work-related accident.
Now as a reminder, all testing MUST be done according to the employer’s written drug and alcohol testing policy!
The last situation where an employee may be tested under DATWA is when an employee is referred to a drug treatment program by the employer that is administered under an employee benefit program. The employee may be tested without notice for up to two years after the completion of the program.
Medical Marijuana in Minnesota
Minnesota’s medical marijuana laws have only been in effect for a short time, and they provide employee protections for patients in Minnesota’s medical marijuana program. Employers may test for marijuana, but they may not terminate an employee who is enrolled in Minnesota’s medical marijuana program. One exception of this is if the employee uses or is under the influence of marijuana during work hours or on the premises. The other exception is any federal law that prevents usage of medical marijuana by an employee. As an aside, employers are further prevented from discriminating against employees or job applicants for participating in Minnesota’s medical marijuana program.
There is a Positive Test, Now What?
First, an employer may not discipline or terminate an employee solely on the basis of a first test. This may only occur when the employer conducts a confirmatory test of the employee’s sample. However, an employer may suspend or transfer the employee to another positon at the same rate of pay pending the outcome of the employer’s confirmatory test if the employer believes it is reasonably necessary for health or safety. If the confirmatory test is negative, the employer must reinstate the employee with full back pay. The employer must also inform the employee that they have a right to pay for a confirmatory retest. If the confirmatory retest comes back negative, the employee must, just as above, be reinstated with full back pay. However, after a confirmed positive test, whether an employer may terminate an employee depends on whether this is an employee’s first positive test. If this is an employee’s second positive test then an employer may discharge the employee after following the proper testing procedures. However, an employee with a first-time positive test has some rights under DATWA.
If an employee has tested positive for drugs and alcohol for the first time then they cannot be discharged without first being offered a chance to, at the employee’s expense or under the employee benefit plan, enroll in drug counseling or rehabilitation as appropriate. If the employee declines to participate in or fails to complete the program then they may be discharged by the employer. Moreover, all employees have a right to a copy of the testing report. And again, all testing must be done according to the employer’s written policy!
Laboratories and Chain of Custody
Without getting into too many specifics, employers may not use any old at home test or laboratory. The statute lays out specific credentials and certifications that a lab must meet and chain of custody procedures to be followed by the employer and the lab. As with any other requirements of DATWA, failure to follow the law precisely will allow for a suit for wrongful termination or other damages by the employee.
What Happens if an Employer Violates DATWA?
I would like to state first that an employer is forbidden from retaliating against an employee for asserting their rights under the law, or for discriminating against an employee based on the information of an initial test with a confirmatory test or retest that is negative.
Now if an employer violates DATWA, an employee may sue for all damages allowed at law as well as any injunctive relief. A court, furthermore, may reinstate the employee. Moreover, an employee may be awarded attorney’s fees if the employer knowingly or recklessly violates DATWA.