Minnesota Drug Testing Laws: A Brief Introduction
An essential aspect of Minnesota’s legal framework for the workplace is Minnesota’s drug-testing statute. This statute requires most employers to adhere to specific procedures if they wish to require their employees to take drug tests. The statute is generally applicable to most employers, although Minnesota’s Workers’ Compensation Act explicitly excludes it and prohibits employers from administering drug tests in connection with a workers’ compensation claim. In addition, Minnesota’s drug testing law contains a "comprehensive list of circumstances" (Minnesota’s Court of Appeals’ phrase-the Court only addressed whether people who do drug testing under Minnesota’s statute are compensated under the statute) the statute notes "relevant to preventing innocent employees from being dismissed for purported drug use when they have not, in fact, used intoxicants." While the law’s language cannot be described as "narrow," it is much less broad than that found in many states, a fact that has broad implications for Minnesota employers concerned, e.g., about marijuana use in the workplace.
In addition to protecting employees , Minnesota’s drug-testing law creates a compliance framework more favorable to Minnesota employers and the State’s economy than the framework that exists under federal law. A major impetus for the law was the imposition of drug testing on all applicants by all federal government agencies and the fear that this would force costs up for Minnesota employers. The law’s preamble states: The legislature finds that preemployment screening for the presence of controlled substances may deter prospective employees from seeking employment in Minnesota … and thus impose an unnecessary drain upon the state’s economy by limiting prospective employees to jobs which do not require a drug-free workplace. Secondly, the legislature finds that the employer’s legitimate interest in preemployment screening for the presence of controlled substance if furthered by the existence of a well-defined set of minimum standards, which specifies what is required in a test.
Minnesota’s drug-testing law is broad. It applies to "the testing of employees or prospective employees," and most drug tests that employers require employees to take, in any context, are covered by the law, including pre-employment drug screenings, drug testing required in the context of an injury and drug testing triggered when an employee shows signs of drug or alcohol endangerment. The law does not, however, apply to "an employee assistance program offered by the employer."
Eligibility Guidelines for Drug Testing
An employer may require a blood test, urine test or other bodily specimen to screen for the presence of a controlled substance or intoxicating substance in the following situations:
- Post-hire when the employer requires each employee in the same work unit to be tested without exception
- Post accident in which the employee has sustained an on-the-job injury
- Post-injury when the employer has determined the employee caused, or contributed to, a workplace injury
- Reasonable suspicion of being under the influence during work
- Random when it is part of a random selection policy.
Employee Protections Under Minnesota State Drug Testing Laws
Employees have specific rights with regard to drug testing, even more so than employers. While most of the specifics fall on the employer to maintain, employees are protected against false positives even if they have not been told that they are being tested: "The law further requires an employer’s MRO [Medical Review Officer] to ensure that an employee who has received a confirmed positive test result for controlled substances be given a reasonable opportunity to establish that either the positive result was due to a legally prescribed medication, or that the laboratory testing procedures were incorrect."
This detail means that if a lab does not follow procedures exactly like they are supposed to, an employee can claim that their test is invalid. Testing is also confidential. Employers are required to keep testing confidential, but employees also have confidentiality rights. Employers may not use testing results as a punishment, and they must give employees a chance to review their results. Employees also have the right to have any drug or alcohol testing that occurs at work be done in a manner which preserves their dignity. The company therefore cannot subject its employees to drug tests in places where such tests are not normally conducted, nor can they subject their employees to unnecessary invasive procedures (such as directly observing urination).
Complying With Minnesota State Drug Testing Law: Duties and Requirements
As employers navigate the complexities of drug-free workplace programs, it is essential to comprehend precisely what is required of them under Minnesota law. The legal framework can be a little murky, so implementation requires a careful approach. This section will outline to an extent the employer obligations under Minnesota law.
Not all employers are required to have a drug testing program. While drug testing is not prohibited, under Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA), employers covered by the law voluntarily choose to institute testing programs. Employers can avoid some of the pesky requirements DATWA imposes by choosing to institute these programs. If you do not test for drugs you don’t need to concern yourself with this.
If you institute a drug testing program, and many employers do, the law requires that you have a written policy that governs the use of drug testing in your workplace. The requirements to have a written policy, and to provide that policy to employees include: Once the policy is written, it must be distributed to all employees who are likely to be tested, and provide the employees with an acknowledgment of receipt form to sign. Keep this signed receipt in the employee’s personnel file.
The policy needs to establish and describe the testing program. There are four categories under DATWA for drug and alcohol testing: Pre-Employment testing; Reasonable Suspicion; Routine Physical Examination; and Post-Accident, Personal Injury or Near-Miss. The policy must include when and how tests will be administered, as well as who administers the tests. The policy must also set out what drugs are included in the drug panel and the consequences of positive test results. Finally, the policy must include the procedure to get a retest and how employees can appeal a positive test result. Obviously this is just a broad overview. Each category of testing includes slightly different rules and requirements. Consult with an attorney to understand the full breadth of requirements.
Employers who want to implement a drug-free workplace program can choose to submit a policy to the Commissioner of Labor and Industry for approval. The policy must include: The Commissioner will review the policy in conjunction with a public employee group and will issue an approval letter if the policy complies with state law. If you submit your policy for approval, you must notify the Commissioner any time you make changes to your policy gain approval.
The policy must then be distributed to all the other employees within the organization not covered by the approved. This is often referred to as "notice out." In this circumstance, you do not need to notify the Commissioner, but you must notify all the employees not covered by the approved policy. You may also remove any references to the approval in the nondistribution policy.
Employers also need to comply with data privacy laws. Under Minnesota law, drug test results are private data on individuals. Employers and their agents must not disclose the specific results. Without the individual’s consent, the employer may only allow access to the results to the Collector, Medical Review Officer, the individual’s supervisor, human resources personnel, and those designated by the employer to make a final determination.
Consequences of Non-Compliance with Minnesota Drug Testing Laws
Employers who fail to follow Minnesota drug testing laws can face a host of serious legal consequences. First and foremost, failure to comply with the requirements for requesting a test can result in the invalidation of any disciplinary action, including termination, based on a positive result. Employees may also have a private right of action to recover damages or disciplinary sanctions for violations. For example, courts have upheld claims for damages to psychological well-being against employers, claims for libel, and claims for damages for wrongful termination. The award of attorney’s fees in favor of an employee is also a possibility. An employer who requires pre-employment testing within a mandatory testing program must reimburse the applicant for all testing expenses. An employer who violates an applicant’s rights under the drug testing laws may also be liable for an amount equal to three times the actual damages , plus costs, disbursements for expert witness fees, and reasonable attorney’s fees, but civil damages are not available for any good faith error. In addition to private civil liability, an employer who fails to follow the procedures required by the Minnesota Drug and Alcohol Testing in the Workplace Act of 1987 may face administrative action by the Department of Labor and Industry. The Department has the authority to conduct a compliance review and issue notices of noncompliance, which include a plan to bring the employer back in compliance. The Department can suspend or revoke any license or registration, including certification as a drug-free workplace, if the employer fails to comply within the deadline given in the notice of noncompliance.
Minnesota Drug Testing Law: Recent Amendments and Revisions
Recently, the Minnesota legislature "simplified" the procedures for drug and alcohol testing. The new law became effective on August 1, 2018, applies to all employers that perform drug or alcohol testing under the Minnesota Drug and Alcohol Testing in the Workplace Act, including private employers.
The changes amend the pre-existing law by requiring the employer to provide a copy of the employer’s drug and alcohol testing policy in electronic form if the employer maintains a website and to provide a hard copy of the policy upon written request from an employee. The changes also establish a minimum paid break time "to enable an employee to request a drug test or to produce an adequate test specimen."
In addition, employers must wait until an employee leaves the testing location before performing a 5-panel drug test or a breath alcohol test. The legislation eliminates the opportunity for an employee to seek a confirmatory test from an alternate certified laboratory after an initial positive test result for alcohol or drugs.
By eliminating the ability to immediately perform a confirmatory test, the law increases the burden on employers who suspect that an employee tested positive for drugs and/or alcohol. Specifically, the 2018 amendment delays an employer from taking action based on a suspected positive until the confirmatory test result is received, which could take up to 48 hours.
This delay leaves the employer at risk to have an intoxicated or impaired employee return to work. This was not an issue before, when an employer could require a confirmatory test immediately after the first positive test. Now, the employer cannot justify taking action until it receives the confirmatory test result.
In addition, under the legislation, if the confirmatory test result is negative, then the employer must pay the employee’s wages for the duration of the employee’s absence from work pending the confirmatory test result. And, if the employer refuses to pay the employee’s wages for a delayed confirmatory test, the employee will be entitled to back pay. Thus, employers may want to amend their standard drug and alcohol testing policy to notify employees that wages will not be paid during the period of time that the employee is waiting for a confirmatory drug or alcohol test result.
New Minnesota case law addresses the definition of an "applicant" under the Minnesota Drug and Alcohol Testing in the Workplace Act. In Conroy v. Northland Temporary Service, 911 F. Supp. 2d 918 (D. Minn. 2012), the Minnesota District Court held that an applicant for employment is not protected under the Minnesota Drug and Alcohol Testing in the Workplace Act until the applicant has passed the drug test. However, the court did not decide whether the applicant was legally required to take the drug test or whether failure to take the test is grounds for termination absent a written testing policy governing applicants.
Although businesses can continue to investigate potential liability under the law in an effort to determine whether an applicant for employment is protected under the law, it would be prudent for businesses to assume that an applicant is protected until a court of law or the Minnesota Supreme Court has addressed the issue.
Summary: How to Work With Minnesota Drug Testing Laws
As this article explains, employers must comply with a patchwork of federal, state and municipal drug testing laws. These laws are complicated and often change without notice. Nevertheless, employers and employees can avoid many pitfalls by understanding which laws govern them and following their requirements. Generally, employers are required to develop drug testing policies that are in compliance with all relevant laws. These policies should be plainly communicated to employees and aligned, to the extent possible, all existing collective bargaining agreements. Employees should read and be familiar with employer policies and understand their rights and responsibilities as they relate to drug and alcohol testing in their industry.
The most common oversight that employers make is failing to follow the notification and other procedural requirements contained in Minnesota’s Drug and Alcohol Testing in the Workplace Act. If you are an employer that follows the Act’s requirements , you may conduct random drug and alcohol testing in Minnesota subject to the limitations set forth in the Act. If you fail to comply with those requirements, you can incur steep financial penalties and be ordered to reinstate an employee who was discharged based on a positive drug test. Conversely, if an employer follows the Act, an employee who refuses to submit to a lawful drug and alcohol test can be considered to have committed misconduct justifying discharge.
Other federal, state and municipal laws may apply to your facility, to your employees or to certain job classifications. Failing to comply with an applicable drug testing law or regulatory agency may require certain money damages or fines to be paid, suspension or revocation of a business license, or other administrative action. It is highly advisable to consult with a labor and employment attorney to determine which laws might apply in your situation and ensure compliance.