Drug Testing Rights

August 10, 2021

Employment Law

Must Out-of-State Employers Comply with Minnesota’s Drug and Alcohol Testing Statute?

Minnesota has one of the nation’s most stringent drug and alcohol testing statutes, Drug and Alcohol Testing in the Workplace Act (DATWA), Minn. Stat. § 181.953 et seq. If an out-of-state employer were to hire a Minnesota resident for a job in a state other than Minnesota, must the employer comply with DATWA’s numerous requirements? The answer may surprise you.

What are the basic requirements under Minnesota’s drug and alcohol testing statute?

Limited Circumstances Under Which an Employee Can be Tested

First the basics. Enacted in 1987, Minnesota’s drug and alcohol testing statute permits drug testing only under five circumstances:

  • Upon reasonable suspicion that an employee is intoxicated;
  • Where a job applicant has received an offer of employment conditioned upon testing negative;
  • On a randomized basis for “safety sensitive” positions;
  • As part of an annual physical examination with two weeks written notice before testing, or
  • In conjunction with a treatment program where an employee who tests positive elects to go through drug treatment or counseling. Any other test is unlawful and can be a basis for a suit for damages by the aggrieved employee or job applicant.

Any other test is unlawful and can be a basis for a suit for damages by the aggrieved employee or job applicant.

Employee Must be Given a Copy of the Drug and Alcohol Testing Policy

Before submitting to a drug test, the test subject must be given a copy of the employer’s alcohol and drug testing policy. This could be part of the employee’s “onboarding” process at the time of hiring, or for a job applicant following receipt of a written job offer. Before testing, the employer must also provide the employee or applicant a written form to sign acknowledging that the individual has “seen” a copy of the employer’s drug testing policy.

Employee Rights and Employer Obligations Following a Positive Test

DATWA contains a detailed chain of custody protocol, and only permits testing to be performed at an approved laboratory, which cannot be owned by the employer. If the test result comes back positive, the employer must have the test confirmed through a second, confirmatory test before taking any action against the employee or applicant. Within three days of receiving the confirmatory test result, the employer must inform the employee or applicant of a positive result and advise the individual in writing of his/her rights to:

  • Have the specimen tested again at the employee or applicant’s own expense;
  • Provide any explanation or drug prescription that might have accounted for the test result; and
  • Advise an employee of the right to seek counseling or treatment for addiction in lieu of termination which, if successfully completed, precludes the employer from following through with a termination. This right to rehabilitation only applies to a first positive test. (Two positives and you’re out, as it were.)

Test subjects also have the right to request and receive a copy of any drug testing results, regardless of the outcome. DATWA contains an exception for employees subject to Federal drug testing programs. This includes truck drivers with a Commercial Drivers License (CDL) who drive across state lines, pipeline employees subject to Pipeline and Hazardous Materials Safety Administration (PHMSA) regulations and aviation industry employees subject to Federal Aviation Administration (FAA) regulations.

Who is an “Employer” under Minnesota’s drug and alcohol testing statute?

Unlike some other Minnesota employment statutes, DATWA defines an “employer” broadly as follows: “a person or entity located or doing business in this state and having one or more employees, and includes the state and all political or other governmental subdivisions of the state.” Compare with Minnesota’s Personnel Record Review and Access statute, Minn. Stat. § 181.960 subd. 2 (applicable where employment is performed “primarily” in Minnesota).

In Olson v. Push, Inc., 640 F. App’x 567 (8th Cir. 2016) a federal court applying Minnesota law had occasion determine the scope of this language under facts suggesting at best a remote, attenuated connection to Minnesota employment. In that case, a Wisconsin-based company offered a Minnesota resident a job in West Virginia, which he accepted. Before starting work, the employee was required to submit to a drug test. He did so, but the test result came back from the laboratory as diluted. The company treated the diluted sample as a positive test and immediately terminated the employee. The employee sued under DATWA, alleging the employer unlawfully failed to subject the test to a confirmatory re-test or offer him the right to seek treatment or counseling before terminating his employment. The employer moved to dismiss the employee’s complaint, arguing it was not bound by DATWA under these circumstances. The District Court agreed and issued an order dismissing the suit.

Undaunted, the employee appealed the decision to the Eighth Circuit Court of Appeals, which reversed the lower court and referred the case back for further proceedings. In its decision, the Court of Appeals noted that the Wisconsin defendant/employer did conduct some amount of business in Minnesota. That, plus the fact that the employee was (then) a Minnesota resident and the testing occurred in Minnesota were enough to satisfy the requirements of due process and subject the Wisconsin company to Minnesota’s jurisdiction under DATWA. The Court failed to specify whether the company actually had any employees in Minnesota, so it’s unclear whether, in its view, the requirement that an employer have “one or more employees” means one or more employees anywhere or in the State of Minnesota. Regardless, the decision serves to underscore the employee-friendliness of Minnesota’s statutory drug testing regime.

Contact Our Minnesota Drug and Alcohol Testing Employment Attorneys

If you have any questions about your employment rights under Minnesota’s alcohol and drug testing statute or Medical Cannabis laws, contact the experienced employment attorneys at Wanta Thome. Click here for more information about Minnesota workplace alcohol and drug testing.