1. Consider the Advantages and Business Justification for Drug/Alcohol Testing
a. Improve quality of applicants
b. Deter drug/alcohol use by employees
c. Avoid the financial cost of drug/alcohol abuse
d. Improve public image
e. Reduce workplace accidents and injuries
f. Comply with governmental regulations (e.g. DOT)
g. Meet customer requirements
2. Consider the Disadvantages of Drug/Alcohol Testing
a. Reduced employee morale and privacy concerns
b. Financial cost of implementation
c. Administrative hassle
d. Potential litigation
3. Determine the Scope of the Drug/Alcohol Testing Policy
a. Geographic Locations Affected
b. Corporate Entities Affected
i. Parent corporation
ii. Subsidiaries
c. Job Positions Affected
i. Upper management
ii. All employees
iii. Specific job categories
iv. “White Collar” vs. “Blue Collar”
4. Identify Past and Current Policies Affected
a. History of drug/alcohol testing in company, if any
b. Employee Handbook provisions
c. Supervisor’s and Manager’s Guide(s)
d. Drug-Free Workplace Statement(s)
e. Substance Abuse and Drug/Alcohol Testing Policies
f. Employment Application
g. Forms and Checklists
5. Determine Categories of Testing for DOT Employees (Set by Law)
a. Pre-employment
b. Post-Accident
c. Reasonable Suspicion
d. Random
i. Drugs: 50%
ii. Alcohol: 10%
iii. Determine “average annual number of Commercial Motor Vehicle (CMV) driver positions” (this can be difficult where there is a fluctuating driver population)
e. Return-to-Duty
f. Follow-up
6. Determine Categories of Testing for Non-DOT Employees (Discretionary)
a. Pre-employment/Job Applicant (most common)
i. Drug testing recommended – alcohol testing discouraged
ii. Conditional offer must be made first
iii. Must test all applicants for same position
iv. All positions vs. specific jobs
b. Post-accident/post-injury
i. Drugs and alcohol
ii. Common limitations
(a) Medical treatment beyond first aid, or away from scene of accident
(b) Property damage estimated in excess of $___________
c. Routine physical examination
i. Consider ADA issues
ii. Coordination with existing physical examination protocols
iii. Can only request once per year after 2 weeks’ written notice
d. Reasonable Suspicion
i. Distinguish from “random” testing
ii. Riskiest form of testing from legal perspective
iii. Minnesota law: Because employers cannot terminate on “first positive” test, in some cases it will be more desirable to discipline based on work rule violation without conducting a reasonable suspicion test
iv. Permissible basis to test (under Minnesota Drug & Alcohol Testing in the Workplace Act)
(a) Violation of work rules
(b) Under the influence
v. Potential indicators: Many of the following are not necessarily legally safe reasons to test but, along with all evidence, may be considered. DOT rules defining “reasonable suspicion” are more strict than those under the Minnesota Drug & Alcohol Testing in the Workplace Act, and generally require a trained supervisor to make specific contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employee, including indications of the chronic and withdrawal effects of controlled substances. In Minnesota, employers may have more discretion to consider such factors as:
(a) observable indications of actual use or of impairment such as slurred speech, lack of coordination, incoherence and marijuana or alcohol odors;
(b) possession of drugs, apparent drug paraphernalia, or alcohol;
(c) abnormal or erratic behaviors such as sudden outbursts, mood swings, hostility or unusual anxiety that suggest possible drug or alcohol use;
(d) apparent lapses in judgment or memory, unusual lethargy, sleeping on the job;
(e) involvement in suspicious on-the-job accidents;
(f) detailed, factual and reliable report(s) of misuse;
(g) credible reports of off-thejob-use or anonymous tips;
(h) misconduct or violation of work rules; and
(i) unexplained deterioration or variations in performance or attendance.
vi. Internal controls
(a) Train designated supervisors
(b) Identify what level of supervisor must observe/decide
(c) Require multiple supervisors to “sign off” prior to testing
(d) Require direct observation for “under the influence”
(e) Complete Reasonable Suspicion Form before results come back
(f) Approval from Human Resources
(g) Approval from Legal Department
(h) Time limitations (drugs vs. alcohol)
(i) Confidentiality and record-keeping
e. Random
i. Consider common law restrictions (e.g., right of privacy)
ii. Minnesota statutory restrictions: “safety-sensitive” employees only
iii. Identify possible “safety-sensitive” positions
(a) Management
(i) Upper management
(ii) Corporate Security/Safety Officers
(iii) Facilities Managers
(iv) Human Resources Professionals
(v) Others
(b) Rank and file
(i) Equipment Operators
(ii) Company Vehicle Operators
(iii) Access to chemicals, fumes, explosives, or other dangerous conditions
(iv) Others
iv. Annual testing rate (discretionary; can follow DOT rules)
v. Selection dates (discretionary; at least quarterly recommended)
vi. Random selection administration (internal vs. external)
f. Treatment program
i. Review company benefits program
ii. Review Employee Assistance Program
iii. Coordinate with ADA/FMLA obligations
iv. Incorporate return-to-duty/follow-up testing requirements after all positive tests
g. Actual implementation vs. reservation of rights
7. Decide what substances will be tested for
a. Alcohol
b. The 5 DOT Drugs (most commonly tested for in Non-DOT policy as well)
i. Amphetamines
ii. Cocaine
iii. Marijuana
iv. Opiates
v. Phencyclidine (PCP)
c. Other Drugs
i. “Ten Panel”
ii. Commonly abused medications?
For most employers, testing should be limited to alcohol and the 5 DOT drugs. Since the privacy and ADA issues inherent in regulating medication use are quite complex, testing for other prescription drugs is not recommended in most cases.
8. Collection Methods and Laboratory Procedures
a. Drug Testing (Specimens)
i. Urine tests for drugs are required for DOT employers. Non-DOT employers are also authorized to conduct urine testing in Minnesota.
ii. Hair testing avoids the privacy concerns associated with urine testing. It reveals drug use during the 3 months prior to testing, which may be a great advantage. Hair testing is not authorized by DOT rules. One laboratory, however, is properly certified to conduct hair testing for non-DOT employers in Minnesota. Because hair testing raises certain issues concerning discrimination against former drug users and minority groups, it should be discussed with legal counsel prior to implementation.
iii. “Split Urine” collection. Required for DOT urine drug tests. Recommended for Non-DOT urine drug tests in Minnesota, but not required.
b. Alcohol Testing (Specimens)
i. Saliva screening is authorized for DOT screening tests, although a breath test is required for all DOT confirmatory tests. Saliva screening is not authorized for non-DOT employers in Minnesota.
ii. Breath testing is often used for DOT screening tests, and is required for all DOT confirmation tests. Generally speaking, breath testing is not authorized for non-DOT employers in Minnesota (except, perhaps, as a screening test followed by blood or urine confirmation test – legal counsel should be consulted).
iii. Blood testing directly measures blood alcohol levels. It is considered the “gold standard” for alcohol testing, although it is also the most invasive form of test. Blood alcohol testing is not authorized under DOT rules. Blood alcohol testing is authorized for non-DOT employers in Minnesota.
iv. Urine tests for alcohol are not authorized under DOT rules. Although urine tests for alcohol are permissible for non-DOT employers in Minnesota, they are less reliable than blood alcohol tests and are typically discouraged.
c. Chain of Custody
i. A properly documented “chain of custody,” showing that the test results offered in evidence are from the actual specimen taken from the employee in question and that the specimen was not altered or contaminated, is required.
ii. Usually, the collection agent and testing laboratory will establish such procedures.
9. Selecting Vendors
a. In General
i. Great care should go into selecting a clinic to handle collections and a testing laboratory. Collection site errors are the most common problem in the testing process.
ii. The credentials of the clinic and laboratory’s personnel, their litigation track record, quality control procedures, and insurance, should all be investigated carefully.
iii. Both DOT rules and the Minnesota Drug & Alcohol Testing in the Workplace Act require the use of certified laboratories that meet certain criteria.
b. Collection sites
i. Off-site (e.g., clinic)
ii. On-site by third party (i.e., outside collector comes to premises)
iii. On-site by internal staff (i.e., train staff B usually not recommended in the absence of trained medical staff or on-site occupational health professionals)
iv. “On-site” drug kit (similar to home pregnancy test) (not permitted in certain jurisdictions; legality in Minnesota is questionable but subject to debate if followed by sending all presumptive positive tests to a certified laboratory for traditional screening)
c. Testing Laboratory
i. Choose laboratory
ii. Determine positive thresholds (cutoffs)
(a) Specific cutoffs are mandated for DOT testing
(b) Cutoffs are discretionary (subject to certain limitations) for non-DOT testing in Minnesota
iii. “Dilute” specimens
(a) Specific procedures are contained in DOT regulations
(b) Grey area for non-DOT testing in Minnesota
iv. “Confirmatory Retest” – required for both DOT and non-DOT testing in Minnesota
d. Medical Review Officer
i. Function
ii. Advantages of outside MRO
iii. Mandated for positive DOT drug tests
iv. Highly recommended for positive Non-DOT tests
v. Decide when to utilize MRO review
(a) Drugs: Positive? Negative?
(b) Alcohol: Positive? Negative?
vi. Fair Credit Reporting Act (FCRA) implications
10. Work Rules
a. Possible restrictions
i. Use, possession, manufacture, distribution, dispensation, transfer or sale of illegal drugs or drug paraphernalia on company premises, while working, or while operating company vehicles, machinery, or equipment.
ii. Unauthorized use, possession, or sale of alcohol on company premises, company business or while operating company vehicles, machinery, or equipment. (Be careful about encouraging alcohol use in the workplace or having a double standard for executives and blue-collar workers.)
iii. Being under the influence of drugs or alcohol (or, alternatively, reporting to work or working with a detectable or prohibited level of drugs or alcohol) on company premises or while operating company vehicles, machinery, or equipment.
iv. Possession, use, or sale of illegal drugs off premises that adversely affects the individual’s work performance, his own or others’ safety at work, or the employer’s reputation.
v. Refusals to be tested or an unreasonable failure to cooperate in Company investigations of substance use and misuse.
b. Determine coverage under Federal Drug-Free Workplace Act of 1988 (covers certain federal contractors and grant recipients)
c. State Drug-Free Workplace Acts
d. Minnesota Non-Work Activities statute
e. Collective bargaining context: bargain with union; follow any procedures contained in CBA
11. Discipline
a. General language vs. specific sanctions
b. Minnesota: Generally cannot terminate on “first positive”
i. Unless 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, whichever is more appropriate, as determined by the employer after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of chemical dependency.
(a) Identify chemical use counselor or physician
(b) To be safe, consultation should be at employer’s expense
(c) Most likely, subsequent counseling or rehabilitation can be at employee’s expense or pursuant to employee benefit plan
ii. This restriction does not apply to DOT testing under Federal Motor Carrier Safety Administration (FMCSA), Federal Transit Administration (FTA), or Federal Railroad Administration (FRA) regulations (per explicit exemption in Minnesota statutes), provided the employer complies with federal drug/alcohol testing procedures. If the drug/alcohol testing policy is properly drafted, employers can terminate DOT employees who fail a first FMCSA, FTA, or FTA drug/alcohol test.
iii. The restriction against terminating on a first positive does apply to DOT testing under Federal Aviation Administration (FAA), Research & Special Programs (RSPA), U.S. Coast Guard (USCG), Department of Energy (DOE), Department of Defense (DOD), etc. because testing under these agency rules is not exempt.
c. Reasonable suspicion: more flexibility by not testing in some cases
d. Refusal to test: The penalties for refusing to be tested should be at least as severe as the penalties for failing tests so that employees will have an incentive to cooperate.
e. Potential penalties
Difficult decisions need to be made with regard to the disciplinary consequences of positive test results. Any of the following penalty structures for employees could be chosen.
i. Termination on first positive
Note: Termination for a first positive is unlawful in Minnesota except for employees who fail a federally-mandated drug/alcohol test pursuant to FMCSA, FTA, or FRA rules, provided the employer complies with federal drug/alcohol testing procedures.
ii. First positive: referral to EAP for evaluation and counseling
Second positive: termination of employment
iii. Transfer or demotion to non-safety sensitive position
iv. Referral to EAP and allowing employee to remain on the job
The different penalty structures involve very different legal risks. The ADA, MHRA, Minnesota Drug & Alcohol Testing in the Workplace Act, negligent retention law, and the terms of applicable union contracts and employee handbooks should be considered.
Applicants who test positive should not be hired, although they should be considered for subsequent openings. Applicants who fail tests should not be told the company thinks they are substance abusers or drug addicts. No stereotypes or general conclusions should be drawn.
12. Rehabilitation
a. Minnesota: Generally cannot terminate on “first positive” drug/alcohol test (see above)
b. National uniformity – if company has operations in multiple states, may wish to adopt a “lowest common denominator” approach that offers same protection to all employees in all states
c. Employee Assistance Program (EAP)
d. ADA issues
e. FMLA issues
13. Miscellaneous Policy Provisions
a. Employee searches (privacy concerns)
b. Alcohol use at company-sponsored events
c. Who pays for cost of testing, confirmatory retests, rehabilitation?
i. DOT: Cost of testing allocated per employer’s policy.
ii. Minnesota: Employer must pay for all testing, except for confirmatory retests; rehabilitation cost depends upon context.
d. How much advance notice will be given applicants and employees that they have been selected? If too much notice is given, employees may find ways to defeat the test.
e. Confidentiality
Although positive test results should be furnished to persons tested, they generally should not be furnished to any outsider without the express written consent of the employee or applicant. Precautions should be taken to disseminate the results within the company only on a need-to-know basis. Such confidentiality measures should be in writing so that the company can point to them to defend invasion of privacy and defamation claims.
f. Adopt separate DOT and non-DOT policies
Given the special rules applicable to drug and alcohol testing for employees regulated by the DOT or other federal agencies, employers with a “mixed” workforce should adopt separate written policies for DOT and non-DOT employees after consulting with an attorney.
14. Collective Bargaining
a. Job Applicants: Testing job applicants is generally not considered mandatory subject of bargaining (unless hiring through union hiring halls, etc.)
b. Current employees: Testing for current employees is considered mandatory subject of bargaining (subject to broad management rights clause or maintenance of existing policies or practices with union acquiescence)
15. Responsibility for Administration
a. Human Resources Department
b. Corporate Security Department
c. Legal Department
d. Outside vendors
The employer should enter into formal contracts with various vendors. Such contracts should require that insurance, certification, and licenses be maintained and require compliance with applicable laws and regulations. Seek legal review of all contracts.
i. Collection sites
ii. Testing laboratory
iii. Medical Review Officer
iv. Random selection administration
v. “Consortium” or “Third Party Administrator”
vi. Substance Abuse Professional
vii. Employee Assistance Program (EAP)
viii. Training Vendor
e. Division of Responsibilities
i. Policy Development
ii. Selection of Vendors
iii. Record-keeping
iv. Test results reporting
v. Decisions to test (other than pre-employment)
vi. Disciplinary decisions
16. Timing of Implementation
a. Complete collective bargaining first (if unionized workplace)
b. Supervisor training
i. Prior to implementation, it is recommended that all supervisors who will have a role in the testing process for non-DOT employers should be trained to enforce the testing policy, recognize the symptoms of substance use and misuse, and to make EAP referrals.
ii. Under DOT rules, all supervisors of Commercial Drivers must receive 2 hours of training regarding drug and alcohol reasonable suspicion determinations prior to implementation.
iii. Document training dates, course materials, and attendees
c. Communication of policy
i. Prior to implementation, the employer should develop a plan for communicating the policy. Education should be a key element of internal communications. Employees and union leaders should be briefed in advance.
ii. Both DOT and non-DOT employers in Minnesota must provide a copy of its drug and alcohol testing policy to each affected job applicant and employee.
iii. Non-DOT employers in Minnesota must post a written notice regarding the policy.
iv. Both DOT regulations and the Minnesota Drug & Alcohol Testing in the Workplace Act require various consent and notification forms throughout the drug and alcohol testing process.
d. Implementation date. In order to reduce claims that the rules have been unfairly changed in the middle of the game, delay implementation for at least 2 weeks after announcing the policy.
Prepared by:
Craig W. Trepanier, Esq.
Trepanier MacGillis Battina P.A.
8000 Flour Exchange Building
310 Fourth Avenue South
Minneapolis, MN 55415
Phone: 612-455-0502
Fax: 612-455-0501
craig@trepanierlaw.com
www.trepanierlaw.com
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© 2009-2013 Trepanier MacGillis Battina P.A.
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.).