Does my employer need to tell me if it conducts drug and alcohol testing?
There is no legal duty in Minnesota that requires an employer to drug or alcohol test job applicants or employees. However, when an employer chooses to test for drugs and alcohol, it must have a written policy containing specific language about who it can test, under what circumstances it can test, and information about the rights of employees and job applicants who are tested. The employer must provide employees with a copy of the policy and notice of its drug and alcohol testing policy, which must be posted in a conspicuous place. Before testing, an employer must also provide employees and job applicants with a form to acknowledge they have seen the drug and alcohol testing policy.
Who can be drug and alcohol tested at work?
DATWA prohibits drug and alcohol testing on an arbitrary and capricious basis and limits testing to only a few employment scenarios:
- Job Applicants: only after receiving a conditional job offer
- Routine Physical Examination: no more than once per year and with two weeks written notice of the testing
- Random Testing: only if the employee is in a safety-sensitive position or is a professional athlete
- Under Reasonable Suspicion: of being under the influence at work, violating the employer’s drug or alcohol policy, or sustaining or causing a personal injury or other work-related accident
- Undergoing Chemical Dependency Treatment: only if the employer referred the employee to treatment or evaluation or the employee is participating in a treatment program under an employee benefit plan
Certain employees and job applicants are excluded from the protections of DATWA because of federal laws that preempt DATWA. This can include commercial drivers, railroad workers, transit workers, pipeline workers, commercial vessel workers, nuclear power plant workers, energy department workers, and defense contractor workers.
Where will the drug or alcohol test occur?
An employer who wishes to drug or alcohol test a job applicant or employee must use the services of an independent testing laboratory. The employer cannot administer the test itself, nor may it conduct drug or alcohol testing using a laboratory that it owns or operates.
Your Rights After Testing Positive for Drugs or Alcohol
Once a test has been administered, employers have three working days to inform applicants/employees of the test result. If the test is positive, the employer must give the employee the opportunity to explain the positive test result and disclose any prescription medications the employee has recently taken that could have contributed to the positive test result. The employer must also notify the employee of the right to request and pay for a confirmatory retest of the original sample.
Employers may not discipline or fire a current employee without first verifying the result with a confirmatory test. Even if a confirmatory test is positive, if it is the first positive test result for the employee, the employer may not discipline or fire the employee without giving him or her an opportunity to participate in a counseling or rehabilitation program, at the employee’s own expense.
Employers may only discipline or fire current employees following a positive test if the employee refuses to participate in a counseling or rehabilitation program, fails to successfully complete the counseling or rehabilitation program, or if the employee has previously had a positive drug or alcohol test at the employer.
Employers may not retaliate against employees for asserting their rights under DATWA.
Drug Testing of Medical Cannabis Users
The legalization of medical cannabis in Minnesota has created new considerations for drug testing in the workplace. If you are a medical cannabis user, you may be entitled to an accommodation for your medical cannabis use if it is connected to a disability under the law. Minnesota law generally prohibits discrimination against a job applicant or employee because the employee is enrolled in the state registry for the consumption of medical cannabis or because the employee tests positive for cannabis, unless the employee used, possessed or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment. However, there are exceptions to this. If your employer fires you for your use of medical cannabis, contact an attorney to determine whether you may have a claim for disability discrimination under the Minnesota Human Rights Act.
Contact Our Minnesota Employment Lawyers
Wanta Thome is dedicated to protecting the rights of employees throughout Minnesota. If you believe your drug and alcohol testing rights have been violated or that you have discriminated against on the basis of a disability, our employment attorneys want to hear from you. Click here for a free initial consultation.
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