Minnesota Laws - Minnesota Drug Testing Law

Minnesota Drug Testing Law – An Overview

Minnesota Drug and Alcohol Testing in the Workplace Act.

In Minnesota, employer testing of job applicants and employees for drugs and alcohol is governed by the Minnesota Drug and Alcohol Testing in the Workplace Act, Minn. Stat. §§ 181.950 – 181.957 (“DATWA” or the “Act”).

DATWA applies to all employers that conduct drug and alcohol testing of job applicants, employees, or independent contractors in the State of Minnesota. Minn. Stat. § 181.950, subd. 7. Certain federally mandated drug and alcohol tests conducted pursuant to U.S. Department of Transportation (“DOT”) regulations, however, are exempt from DATWA if performed properly. See Minn. Stat. § 221.031, subd. 10. The exception for DOT employers is discussed in more detail below.

Although DATWA does not require any employers to conduct drug and alcohol testing, employers who wish to do so must strictly comply with the requirements of the Act. See Minn. Stat. § 181.951, subd. 7 (no legal duty to test); Minn. Stat. § 181.951, subd. 1(a) (restricting drug and alcohol testing). Thus, an employer should be familiar with this statute before conducting drug and alcohol testing or taking disciplinary action against employees for violation of the employer’s policy on drugs or alcohol.

A. Adoption of a Written Policy

Under DATWA, an employer may not request or require an employee or job applicant to undergo drug or alcohol testing unless the employer has adopted a written testing policy that contains the following elements:

a description of the employees or job applicants subject to testing under the policy;
the circumstances under which drug or alcohol testing may be requested or required;
the right of an employee or job applicant to refuse to undergo drug and alcohol testing and the consequences of refusal;
any disciplinary or other adverse personnel action that may be taken based on a positive test result;
the right of an employee or job applicant to explain a positive test result and request and pay for a confirmatory retest; and
any appeal procedures available to employees.

Minn. Stat. § 181.952, subd. 1.

Although DATWA requires adoption of a written policy with respect to drug and alcohol testing only, it is advisable to adopt a policy prohibiting the use, sale, possession, or trafficking of drugs or alcohol in the workplace regardless of whether the employer intends to conduct drug or alcohol testing based on violations of the employer’s work rules. Employers should treat their drug and alcohol policies as if they represent binding contractual commitments. At the same time, they should reserve the right to modify applicable policies and procedures at their discretion by inserting the kind of broad disclaimers and statements of “at will employment” that typically appear in employee handbooks.

B. Notice to Employees

An employer must provide written notice of its drug and alcohol testing policy to all affected employees, to a previously nonaffected employee upon transfer to an affected position under the policy, and to a job applicant before any testing occurs if the job offer is contingent on passing a drug or alcohol test. Minn. Stat. § 181.952, subd. 2. Thus, an employer should provide a complete copy of its drug and alcohol testing policy to each affected applicant and employee. Upon distribution of the policy and any revised policies, employers should obtain signed acknowledgment from each individual confirming that the individual has received and understands the employer’s policy.

Under DATWA, employers must also post a notice in an appropriate and conspicuous location on its premises that it has adopted a drug and alcohol testing policy and that copies of the policy are available for inspection by employees and applicants at suitable locations, such as the employer’s personnel office, during regular business hours. Minn. Stat. § 181.951, subd. 2.

C. Testing of Job Applicants

In order to test a job applicant, an employer must first make a conditional job offer of employment to the applicant. In addition, the employer must request or require the same test of all applicants conditionally offered employment for the same position. Minn. Stat. § 181.951, subd. 2. An employer may not withdraw a conditional job offer made to an applicant based on a positive test result that has not been verified by a confirmatory test. Minn. Stat. § 181.953, subd. 11. If an employer ultimately withdraws a job offer based on a positive drug or alcohol test result, the employer must inform the applicant of the reason for its decision. Minn. Stat. § 181.951, subd. 2.

In almost all cases, a pre-employment test should be for illegal drugs but not alcohol. Pre-employment alcohol tests constitute little more than an intelligence test, impose additional costs on the employer, and may be attacked as unlawful under the Minnesota Lawful Consumable Products Act. See Minn. Stat. § 181.938. In addition, a pre-employment alcohol test is considered a “medical examination” under the Minnesota Human Rights Act (“MHRA”) and the Americans with Disabilities Act (“ADA”), and must be “job-related.” In many cases, it may be difficult to demonstrate why passing a pre-employment alcohol test is job-related, unless the employer is attempting to screen out alcoholics – something which is illegal under the ADA. Thus, the potential value of a pre-employment alcohol test is generally outweighed by the associated practical and legal risks of such a test.

D. Testing of Existing Employees

An employer may not request or require an employee to undergo drug or alcohol testing except as authorized by DATWA. Minn. Stat. § 181.951, subd. 1(a). In turn, the statute permits four types of testing for current employees:

routine physical examination testing;
random testing (for safety-sensitive employees);
reasonable suspicion testing (including post-accident/injury testing); and
treatment program testing.

Minn. Stat. § 181.951, subds. 3 – 6.

1. Routine Physical Examination Testing

An employer may require an employee to undergo drug and alcohol testing as part of a routine physical examination provided that the drug or alcohol test is required no more than once annually and the employee has been given at least two weeks’ written notice that a drug or alcohol test may be requested or required as part of the examination. Minn. Stat. § 181.951, subd. 3.

Putting aside whether a drug or alcohol testing can be conducted during a routine physical examination, employers should be aware that the MHRA and ADA restrict such medical examinations for employees. They must be “job-related” and “consistent with business necessity.” Thus, the employer must have a legitimate purpose for conducting the medical examination in the first place before adding a drug or alcohol test to the examination. Given the potential liability under the MHRA and ADA for conducting an unlawful medical examination or inquiry, employers should consult with legal counsel before requiring physical examinations of any employee. In no event should an employer require an employee to undergo a routine physical examination for the sole purpose of conducting a drug or alcohol test.

2. Random Testing of Safety-Sensitive Employees

An employer may require employees in safety-sensitive positions to undergo drug and alcohol testing on a random selection basis. Minn. Stat. § 181.951, subd. 4. A safety-sensitive position is any position, including supervisory or management positions, in which an impairment caused by drug or alcohol usage would threaten the health or safety of any person. Minn. Stat. § 181.950, subd. 13. For clarity, the employer’s written policy should explicitly identify which positions or employees are considered “safety-sensitive” for purposes of random testing. While DATWA grants employers considerable latitude in classifying “safety-sensitive” positions, employers should be prepared to defend their classifications. Improperly classifying an employee as “safety-sensitive” could result in a legal challenge to a positive test result or any adverse employment action taken based on the result.

The method of random selection must result in an equal probability that any employee from a group of employees subject to the selection method will be selected. Minn. Stat. § 181.950, subd. 11. Furthermore, the employer must not have discretion to waive the selection of any employee selected under the mechanism. Minn. Stat. § 181.950, subd. 11. Typically, the employer will contract with a third-party drug and alcohol testing administrator or consortium to oversee the random selection process. Employees randomly selected are returned to the random testing pool and may be selected again at a future selection date. DATWA permits employers to select the applicable testing rate (e.g., 50% of safety-sensitive employees each year). This testing rate may be higher or lower than DOT rates.

3. Reasonable Suspicion Testing (Including “Post-Accident” and “Post-Injury” Testing)

An employer may require an employee to undergo drug and alcohol testing if the employer has reasonable suspicion, based on specific facts and rational inferences drawn from those facts, that the employee:

is under the influence of drugs or alcohol;
has violated the employer’s written work rules regarding the use, possession, sale, or transfer of drugs or alcohol while the employee is working or while the employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment, provided that the work rules are in writing and contained in the employer’s written drug and alcohol testing policy;
has sustained a personal injury at work, or has caused another employee to sustain a personal injury; or
has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.

Minn. Stat. § 181.951, subd. 5.

In order to make effective determinations of reasonable suspicion, supervisors should receive training concerning the manifestations of alcohol and drug use, abuse, and withdrawal. Records of such training should be maintained by the employer for later use in the event an employee challenges the basis of a reasonable suspicion test.

The employer should also create a “reasonable suspicion” checklist form to be completed by the supervisor at the time the determination of reasonable suspicion is made. Such a form can serve as critical evidence should the employee later challenge the legality of the test or allege that the test was motivated by an unlawful discriminatory purpose (e.g., race, sex, age, etc.), arbitrary, or capricious.

4. Treatment Program Testing (Including “Return-to-Duty” and “Follow-Up” Testing)

An employer may require an employee to undergo drug and alcohol testing if the employee has been referred by the employer for chemical dependency treatment or evaluation or is participating in a chemical dependency treatment program under an employee benefit plan. Minn. Stat. § 181.951, subd. 6. The employee may be required to undergo testing without prior notice during the evaluation or treatment period and for a period of up to two years following completion of any prescribed chemical dependency program. Minn. Stat. § 181.951, subd. 6. In essence, the treatment program testing provision authorizes an employer to conduct a “return-to-duty” test and “follow-up” testing of employees who have received chemical dependency evaluation or treatment (akin to the DOT regulations in this area). Thus, following a positive drug or alcohol test, it is often wise for the employer to refer the employee to a chemical dependency evaluation. This will trigger the employer’s right to conduct treatment program testing.

It should be noted that employers must be very careful when confronting employees who have failed a drug or alcohol test. The employer initially should only require the employee to submit to an “evaluation” – not “treatment” – or else the employee may accuse the employer of assuming that the employee is an illegal drug addict or alcoholic. While current users of illegal drugs are not protected under the ADA or MHRA, current alcoholics are protected from discrimination. Further, these laws prohibit employers from discriminating against an employee because the employer wrongly regards the individual as being disabled. In at least one reported court decision, the employer was held liable under the ADA for requiring an employee to submit to alcoholism treatment before an evaluation was even conducted.

If the chemical dependency evaluation indicates that the employee has a drinking problem or is using or addicted to illegal drugs, the employer generally has the right (at that point) to require the employee to follow all recommendations for treatment and recovery. To bolster the employer’s right to do so, the employer’s drug and alcohol policy (or employee handbook) should clearly prohibit drinking on the job, reporting for work under the influence of alcohol, or using illegal drugs. This will make it easier for the employer to demonstrate that requiring the chemical dependency treatment is “job-related” and “consistent with business necessity” for purposes of the ADA and MHRA.

E. Limitation Against Arbitrary and Capricious Testing

Although DATWA authorizes testing under the circumstances described above, employers may not request or require drug or alcohol testing on an “arbitrary and capricious basis.” Minn. Stat. § 181.951, subd. 1(c). The Minnesota Court of Appeals has suggested that a decision to test is arbitrary and capricious “only where the decision lacks any rational basis.” Kise v. Product Design & Eng’g, Inc., 453 N.W.2d 561, 563 (Minn. Ct. App. 1990). Despite the court’s expansive interpretation of the phrase “arbitrary and capricious,” uniform and consistent application of an employer’s policy is imperative.

F. Required Consent Form

Before requesting an applicant or employee to undergo drug or alcohol testing, the employer must give the individual a form that it has developed on which the individual must acknowledge that he or she has seen the employer’s drug and alcohol testing policy. Minn. Stat. § 181.953, subd. 6. This form should be signed by the employee. Prior to August 1, 1997, the consent form was also required to allow the individual to indicate any over-the-counter or prescription medication he or she is currently taking or has recently taken, and any other information relevant to the reliability, of or explanation for, a positive test result. Effective August 1, 1997, the consent form should only acknowledge that the individual has seen the employer’s drug and alcohol testing policy; information regarding medications should be requested only after a positive drug test (and, ideally, only by an independent Medical Review Officer). In light of the amendment, requesting such information prior to each test may now constitute an unlawful medical “inquiry” under the ADA and/or MHRA, which limit both medical examinations and inquiries.

G. Use of Certified Laboratories and Chain of Custody Procedures

Drug and alcohol testing in the State of Minnesota must be conducted by a certified laboratory which meets certain criteria contained in DATWA. See Minn. Stat. § 181.953, subd. 1. In addition, an employer utilizing an approved non-NIDA (non-SAMHSA) laboratory must establish chain of custody procedures to ensure proper record keeping, handling, labeling, and identification of the samples to be tested. Minn. Stat. § 181.953, subd. 3. The employer should ensure that its drug and alcohol testing laboratory is properly certified to conduct workplace testing under Minnesota law; not all of them are.

H. Blood, Urine, Saliva, Breath, and Hair Testing

From a clinical perspective, drug and alcohol use may be detected with varying degrees of accuracy in blood, urine, saliva, breath, and hair. Under state law, however, the type of sample to be used in the drug and alcohol testing process is strictly regulated. (Note: federal regulations applicable to DOT employees utilize other methods.)

As noted previously, the Minnesota Act requires non-DOT employers to utilize the services of a certified or accredited drug and alcohol testing laboratory for all drug and alcohol testing. Minn. Stat. § 181.953, subd. 1. Threshold detection levels must be set at or above the standards of the accrediting or certifying agencies. Minn. Stat. § 181.950, subd. 10. As a practical matter, this means that non-DOT drug and alcohol testing in Minnesota is limited to blood, urine, and hair testing insofar as the accreditation bodies required under Minnesota law generally do not set forth criteria for breath alcohol testing.

When selecting a collection method, the following principles should be kept in mind:

Breath Alcohol Testing: Because no laboratory certified in accordance with Minnesota law currently performs breath alcohol testing, and the use of a certified laboratory is required for all testing, a strict interpretation of the statute would suggest that non-DOT employers may not utilize breath alcohol testing without incurring a risk of potential liability. Some employers may attempt to reduce this legal risk by using the breath alcohol test as a screening tool only. If the result of the breathalyzer is positive, the employer draws a blood sample to by analyzed by a certified laboratory in a traditional lab setting.
Saliva Alcohol Testing: Saliva alcohol testing is legally questionable for non-DOT testing in Minnesota, because a saliva alcohol test does not utilize the services of a certified laboratory. In the case of saliva testing, a positive screening test typically is followed by a blood or urine collection for analysis by a certified laboratory. Because the initial screening test itself does not occur at a certified laboratory, however, it is arguably unlawful even though followed by a separate specimen collection and laboratory analysis.
On-Site or Quick Drug Testing: Like breath alcohol testing and saliva alcohol testing, “on-site” or “quick” drug testing in the State of Minnesota is legally questionable. The on-site or quick drug test does not utilize the services of a certified testing laboratory. The urine sample is typically forwarded to the laboratory only after a “presumptive positive” on-site screening result. Because the initial screening method does not use the services of a certified laboratory, the screening test itself may be challenged under Minnesota law. At some point, it is hoped that the Minnesota legislature will amend the statute to permit the use of on-site or quick drug tests as a screening tool (followed by traditional laboratory analysis if the sample is presumptively positive). This will speed up drug test results greatly, especially in the pre-employment testing context, and will provide the employee with the same legal protections provided by certified lab testing for any “positive” tests.
Blood Alcohol Testing: Blood testing for alcohol is considered the “gold standard” for measuring alcohol concentration and is clearly permitted under DATWA. Unfortunately, while blood alcohol testing is considered more precise than urine alcohol testing, it is generally viewed as more invasive than urine testing and is disliked by many job applicants and employees.
Urine Alcohol Testing: Although technically permitted under DATWA, urine alcohol testing is unreliable unless the individual empties his or her bladder, waits a sufficient period of time, and then provides a separate urine sample for analysis by the laboratory.
Hair Drug Testing: Hair testing for drugs raises certain issues concerning discrimination against former drug users and minority groups, and therefore should be discussed with legal counsel prior to implementation. In addition, it appears that only one laboratory has been properly certified in accordance with Minnesota law to conduct hair drug testing.

Employers should discuss the legal risks associated with various collection methods prior to implementing their drug and alcohol testing program. Employers should be keenly aware that the collection methods and samples required by Minnesota law differ greatly than those for DOT-mandated testing under federal law.

I. Notification of Test Results

1. Negative Test Results

Within three working days after the employer receives the laboratory’s report, it must inform the test subject in writing of a negative test result on an initial screening test or confirmatory test. Minn. Stat. § 181.953, subd. 7. In addition, the employer must inform the individual in writing of his or her right to request and receive a copy of the test result report. Minn. Stat. §§ 181.953, subds. 7 and 8. The employer should develop a notification form for this purpose.

2. Positive Test Results

Within three working days after the employer receives a positive confirmatory test result from the laboratory, the employer must inform the test subject in writing of the following:

The result of the test. Minn. Stat. § 181.953, subd. 7.

That the individual may receive from the employer a copy of the test result report. Minn. Stat. §§ 181.953, subds. 7 and 8.

That the employer may not discharge, discipline, discriminate against, or request or require rehabilitation of the individual on the basis of medical history information revealed to the employer pursuant to the drug and alcohol testing process unless the individual was under an affirmative duty to provide the information before, upon, or after hire. Minn. Stat. § 181.953, subd. 10(d).
That the individual has the right to request a confirmatory retest of the original sample at the individual’s own expense and that no adverse personnel action may be taken against the individual based on the original test result if the confirmatory retest does not confirm the original positive test result. Minn. Stat. § 181.953, subd. 9.
That within three working days after notice of a positive test result on a confirmatory drug or alcohol test, the individual may submit information to the employer to explain the result. Minn. Stat. § 181.953, subd. 6(b). (In addition, if an individual tests positive for drug use, the employer may ask the individual to indicate any over the counter or prescription medication that the individual is currently taking or has recently taken and any other information relevant to the reliability of, or explanation for, a positive test result. See Minn. Stat. § 181.953, subd. 6(b).)
That the employer (in the event of a positive job applicant test) may not withdraw a job offer based on a positive test result from an initial screening test that has not been verified by a confirmatory test. Minn. Stat. § 181.953, subd. 11. (Note: Typically, most laboratories will conduct a confirmatory test even before reporting the result to the employer.)
That the employer (in the event of a positive drug or alcohol test of a current employee) may not discharge, discipline, discriminate against, or request or require rehabilitation of the individual on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test. Minn. Stat. § 181.953, subd. 10(a). (Note: The employer, however, may temporarily suspend the individual with or without pay or transfer the individual to another position at the same rate of pay pending the outcome of the confirmatory test and, if requested, the confirmatory retest, if the employer believes it is reasonably necessary to protect the health or safety of the employee, co-employees, or the public. Minn. Stat. § 181.953, subd. 10(c). If the confirmatory test or retest does not confirm the original positive test result, the employee must be reinstated with back pay if the outcome of the confirmatory test or requested confirmatory retest is negative. Minn. Stat. § 181.953, subd. 10(c).)
That the employer may not discharge an employee for a positive test result on a confirmatory test if the positive result is the individual’s first such result on a drug or alcohol test requested by the employer, unless the employee is given an opportunity to participate in a counseling or rehabilitation program and either refuses to participate in or fails to successfully complete the program. Minn. Stat. § 181.953, subd. 10(b).
That the individual may access information in the employer’s files relating to positive test result reports and other information acquired in the drug and alcohol testing process and conclusions drawn from and actions taken based on the reports or other acquired information. Minn. Stat. § 181.953, subd. 10(e).

In order to ensure compliance with DATWA’s complex notification requirements for positive drug and alcohol tests, employers should consult legal counsel to develop an appropriate notification form that contains the required information. Failure to provide adequate notice can invalidate the entire test and subject the employer to considerable liability for wrongful termination, back pay damages, and attorney’s fees. See Minn. Stat. § 181.956 (summarizing statutory remedies for violations of DATWA).

J. Confirmatory Retests

Within five working days after notice of a positive confirmatory test result, an employee or job applicant may request a confirmatory retest at his or her own expense. Minn. Stat. § 181.953, subd. 9. Within three working days after receipt of this request, the employer must notify the original testing laboratory that the employee or job applicant has requested a confirmatory retest. Minn. Stat. § 181.953, subd. 9. If the confirmatory retest does not confirm the original positive test result, the employer may not take adverse personnel action based on the original confirmatory test. Minn. Stat. § 181.953, subd. 9.

K. Cost of Testing, Evaluation and Rehabilitation

Employers that conduct testing under DATWA generally may not request or require job applicants or employees to contribute to, or pay the cost of, drug or alcohol testing. Minn. Stat. § 181.950, subd. 4. The only exception is that the employer may require the individual to pay for confirmatory retests requested by an employee or job applicant. See Minn. Stat. § 181.950, subd. 4 (confirmatory retests); Minn. Stat. § 181.953, subd. 9 (discussing cost of confirmatory retests).

The Minnesota Act is silent about who must pay for the cost of any chemical dependency evaluation, treatment, or rehabilitation following a positive drug or alcohol test. If the employer requires the employee to submit to such evaluation, treatment, or rehabilitation, however, a conservative reading of Minnesota law suggests the employer may be required to pay for it. Minn. Stat. § 181.61 provides that:

It is unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any records required by the employer as a condition of employment, except certificates of attending physicians in connection with the administration of an employee’s pension and disability benefit plan or citizenship papers or birth certificates.

Minn. Stat. § 181.61. Employers who violate this provision are guilty of a misdemeanor. Minn. Stat. § 181.62. Arguably, requiring the employee to undergo a chemical dependency evaluation or treatment, or to provide written records of completion, may fall under the above provisions.

In any event, unionized employers should bargain with affected unions before requiring employees to pay for the cost of any testing, evaluation, or rehabilitation because such topics are likely mandatory subjects of bargaining under applicable labor laws.

L. Discharge and Discipline of Employees

If an employee’s initial screening test is positive, but it has not been verified by a confirmatory test, the employer may not discharge, discipline, discriminate against, or require or request the individual’s rehabilitation based on the test result. Minn. Stat. § 181.953, subd. 10(a). Instead, the employer must obtain a confirmatory test of the same sample to confirm the positive test result. For this reason, most testing laboratories will routinely conduct confirmatory tests before notifying employers of the test result.

In the case of a first positive test result verified by a confirmatory test, the employer may not discharge the employee unless both of the following conditions are met:

the employer has first given the employee an opportunity to participate in, at the employee’s own expense or pursuant to coverage under an employee benefit plan, either a drug or alcohol counseling or rehabilitation program as determined by the employer after consultation with a certified chemical use counselor or physician trained in the diagnosis and treatment of chemical dependency; and
the employee has refused to participate in the counseling or rehabilitation program or has failed to successfully complete the program, as evidenced by withdrawal from the program before its completion or by a positive test result on a confirmatory test after completion of the program.

Minn. Stat. § 181.953, subd. 10(b).

Because these limitations apply to decisions to discharge only, DATWA does not explicitly prohibit an employer from taking disciplinary action short of discharge (e.g., suspension, demotion, or warning) against an employee based on a first positive test result. In addition, the Minnesota Court of Appeals has held that an employer may even discharge an employee after a first positive test result if the termination is based on conduct which amounts to just cause for termination, even if the conduct is inextricably intertwined with the use of illegal drugs. In re Copeland, 455 N.W.2d 503, 507 (Minn. Ct. App. 1990).

DATWA also permits an employer to temporarily suspend (with or without pay) or transfer a tested employee to another position at the same rate of pay pending the outcome of a confirmatory test or, if requested, a confirmatory retest, if the employer believes that this action is reasonably necessary to protect the health or safety of the employee, co-employees, or the public. Minn. Stat. § 181.953, subd. 10(c). An employee who has been suspended without pay must be reinstated with back pay if the outcome of the confirmatory test or retest is negative. Minn. Stat. § 181.953, subd. 10(c).

If any adverse employment action is taken as a result of a drug or alcohol test, the employer likely must notify the employee of the employer’s reason for the decision within 10 days of the decision. Minnesota Human Rights Act, Minn. Stat. § 363A.03, subd. 1(a). This notice should be given in writing.

M. Confidentiality of Records

Under DATWA, an employer must grant an employee access to information in his or her files relating to the drug and alcohol testing process. Minn. Stat. § 181.953, subd. 10(e).

An employer generally may not disclose test result reports and other information acquired in the drug and alcohol testing process to another employer or to a third-party individual, governmental agency, or private organization without the written consent of the employee or job applicant tested. Minn. Stat. § 181.954, subd. 2. In addition, positive test results obtained pursuant to an employer’s drug or alcohol testing program may not be used as evidence in a criminal action against the employee or job applicant tested. Minn. Stat. § 181.954, subd. 4.

Notwithstanding these limitations, evidence of a positive test result on a confirmatory drug or alcohol test may be used in arbitration proceedings pursuant to collective bargaining agreements, administrative hearings, or judicial proceedings, so long as the information is relevant to the hearing or proceeding. Minn. Stat. § 181.953, subd. 3. In addition, such a test result may be disclosed to any federal agency or other unit of the federal government as required by law and to a substance abuse treatment facility for the purpose of evaluation or treatment of the employee. Minn. Stat. § 181.953, subd. 3.

In light of the restrictions on disclosure of information concerning testing, employers should develop a safe and confidential system of retaining results of all drug and alcohol tests and other information acquired during the testing process. Access to such information should be strictly limited within the company. In order to limit disability discrimination claims under the ADA and MHRA and to preserve the confidentiality of such records, it is also advisable to keep all records of alcohol or substance abuse problems separate from other personnel records. Although an employee will still have access to these records, this measure will reduce the risk of unnecessary disclosure to company personnel.

N. Exemption from DATWA for Certain DOT Testing

Many employers in the State of Minnesota are required to conduct mandatory drug and alcohol testing of certain safety-sensitive transportation workers under federal DOT regulations. Such employers find it difficult to comply with the comprehensive federal regime for DOT testing and the requirements of the Minnesota Act. In some cases, these provisions contradict each other or impose overlapping, inconsistent, and administratively burdensome requirements on the employer.

Fortunately, the Minnesota legislature has created an exemption from the Minnesota Drug and Alcohol Testing in the Workplace Act for employers conducting certain DOT-mandated tests:

Subd. 10. Controlled substance and alcohol use and testing exemption. The state of Minnesota, a political subdivision of the state, or any person required to comply with the alcohol and controlled substances testing requirements of Code of Federal Regulations, title 49, part 219, 382, 653, or 654, is exempt from sections 181.950 to 181.957 if the testing also complies with the procedures for transportation workplace drug and alcohol testing programs in Code of Federal Regulations, title 49, part 40.

Minn. Stat. § 221.031, subd. 10. In practice, this means that Minnesota employers who are conducting a federally-mandated drug or alcohol test required by the Federal Railroad Administration (“FRA”), Federal Motor Carrier Safety Administration (“FMCSA”), or Federal Transit Administration (“FTA”), is exempt from the Minnesota Act if the testing also complies with the federal procedures for transportation workplace drug and alcohol testing programs set forth in 49 C.F.R. Part 40.

Due to an anomaly in the law, Minnesota employers governed by other federal drug and alcohol testing requirements (e.g., regulations issued by the Federal Aviation Administration (“FAA”), Research and Special Programs Administration (“RSPA”), United States Coast Guard, Department of Defense, or Department of Energy) do not enjoy the exemption from the Minnesota Act.

In addition, even exempt employers regulated by the FRA, FMCSA, and FTA must comply with the Minnesota Act when testing non-DOT applicants and employees, and when testing DOT applicants and employees in non-DOT situations (i.e., situations in which testing is being conducted under the employer’s own authority and not pursuant to DOT requirements).

O. Necessary Forms and Notices

In order to comply with DATWA, avoid liability, and ensure that disciplinary actions based on positive test results are not undermined by failure to follow procedures required by Minnesota law, employers should draft the following forms, documents, and notices with the assistance of legal counsel knowledgeable in the area of workplace drug and alcohol testing programs:

A drug and alcohol testing policy that complies with Minnesota law;
An acknowledgment of receipt form to be signed by employees;
A notice to be posted regarding the existence of the employer’s policy;
A consent form granting consent to conduct drug and alcohol testing prior to each test and acknowledging that the individual has seen the employer’s written policy;
A notice following negative and positive test results;
A notice of withdrawal of job offer based on an applicant’s positive test;
A notice of disciplinary action based on a positive test result;
A reasonable suspicion record form; and
A post-accident record form.

Minnesota Lawful Consumable Products Act

In addition to the restrictions contained in DATWA, a separate Minnesota statute provides that an employer may not refuse to hire, discipline, or discharge a job applicant or employee who engages in the use of “lawful consumable products” off the employer’s premises during nonworking hours. See Minn. Stat. § 181.938. This statute is commonly referred to as the “Lawful Consumable Products Act” (the “LCPA”).

Under the LCPA, the term “lawful consumable products” includes food, alcoholic and nonalcoholic beverages, and tobacco. Minn. Stat. § 181.938, subd. 2.

An employer, however, may restrict the use of lawful consumable products by employees during nonworking hours under either of the following circumstances:

if the restriction relates to a bona fide occupational requirement and is reasonably related to employment activities or responsibilities of a particular employee or group of employees; or
if the restriction is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities owed by the employee to the employer.

Minn. Stat. § 181.938, subd. 3(a). For example, the restriction of alcohol use immediately prior to reporting for work may be appropriate where the employee operates the employer’s equipment, machinery, or vehicles, and the employer’s written policy prohibits the employee from reporting to work with a detectable amount of alcohol in his or her system. Similarly, a drug and alcohol testing laboratory or chemical dependency clinic may have the right to restrict employees’ off-duty use of alcohol where such conduct would create the appearance of a conflict of interest with the employer’s business purpose. Because few Minnesota courts have interpreted these statutory exceptions, however, there is inherent danger when regulating employees’ off-duty use of lawful consumable products. It is preferable to simply prohibit employees from reporting to work with a certain level of alcohol in their system.

Under the LCPA, an employer may lawfully refuse to hire an applicant or discipline or discharge an employee who fails to comply with the conditions established by a chemical dependency treatment or aftercare program. Minn. Stat. § 181.938, subd. 3(b).

In addition, an employer may also refuse to hire an applicant or discipline or discharge an employee on the basis of the applicant’s or employee’s past or present job performance. Minn. Stat. § 181.938, subd. 3(d). Thus, an employer may lawfully discharge an employee for poor attendance or job performance, even if related to the employee’s alcoholism and even where all of the employee’s drinking takes place during nonworking hours off the employer’s premises.

Finally, the LCPA does not prohibit an employer from offering, imposing, or having in effect a health or life insurance plan that makes distinctions between employees for the type of coverage or the cost of coverage based upon the employee’s use of lawful consumable products, provided that different premium rates charged to employees reflect the actual differential cost to the employer. Minn. Stat. § 181.938, subd. 3(c).

Minnesota drug testing attorney Craig W. Trepanier of the law firm of Trepanier MacGillis Battina P.A. in Minneapolis, Minnesota, represents employers and employees in the Twin Cities and Greater Minnesota in Minnesota workplace drug and alcohol testing legal matters, including Department of Transportation (DOT) drug and alcohol testing, 49 C.F.R. Part 40, Federal Motor Carrier Safety Administration (FMCSA) drug and alcohol testing, 49 C.F.R. Part 382, Non-DOT drug and alcohol testing, Minnesota pre-employment drug testing, Minnesota job applicant drug testing, Minnesota reasonable suspicion drug testing, Minnesota random drug testing, Minnesota routine physical examination drug testing, Minnesota post-accident drug testing, Minnesota treatment program drug testing, Minnesota return-to-duty drug testing, Minnesota follow-up drug testing, Minnesota drug tests, Minnesota alcohol tests, Minnesota false positive drug tests, Minnesota wrongful discharge, Minnesota wrongful termination, Minnesota illegal drug tests, Minnesota unlawful drug tests, invasion of privacy, unlawful disclosure of Minnesota drug test results, violation of Minnesota drug testing laws, Minnesota Drug & Alcohol Testing in the Workplace Act, Minn. Stat. 181.950, Minnesota Lawful Consumable Products Act, Minn. Stat. 181.198, Minnesota drug testing policy and policies, Minnesota alcohol testing policy and policies, Minnesota drug testing law, Minnesota drug testing lawsuits, and Minnesota drug testing litigation. Minnesota drug testing attorney Craig W. Trepanier represents clients in Minneapolis, St. Paul, Apple Valley, Blaine, Bloomington, Brainerd, Brooklyn Park, Burnsville, Coon Rapids, Duluth, Eagan, Eden Prairie, Edina, Lakeville, Mankato, Maple Grove, Minnetonka, Moorhead, Plymouth, Richfield, Rochester, St. Cloud, Stillwater, Twin Cities, Woodbury and other cities within the State of Minnesota (MN) (Minn.).