Minnesota - Drug Testing
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- DFWP - “Drug and Alcohol Testing in the Workplace Act”
Minnesota State Law for Alcohol and Drug Testing
Minnesota has a very strict set of laws governing drug and alcohol testing in the workplace. The set of laws are known as the Drug and Alcohol Testing in the Workplace Act. The Act applies to all employers located or doing business in the State of Minnesota and applies to the testing of both job applicants and current employees. The Act places considerable restrictions and limitations on how the testing may be administered and the actions an employer may take in the event an employee fails a drug test.
The law applies to all employers, defined as “any 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. The act defines “employee” as any person, including an independent contractor or person working for an independent contractor, who performs services for compensation. Job applicants are also protected. A job applicant is any person who has applied for work with an employer and anyone who has a job offer contingent upon passing a drug or alcohol test.
Following are the 13 things all Minnesota employers must know about drug and alcohol testing in the workplace.
- All Minnesota employers who request any of their employees to undergo drug and alcohol testing must have a written drug testing policy that conforms to the strict requirements of the Act.
- Minnesota employers must provide a copy of their drug and alcohol testing policy to any employee the employer requests to take a drug or alcohol test along with a form to acknowledge receipt of the policy.
- Employers may only administer drug or alcohol tests to job applicants once a job offer has been extended to that job applicant, contingent upon passing the drug test.
- Employers may not administer random testing to employees, unless the employees are employed in “safety-sensitive” positions.
- Employers may request an employee to undergo drug or alcohol testing if the employer has a reasonable suspicion that the employee:
- is under the influence of drugs or alcohol;
- has violated the employer’s rules prohibiting 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 the work rules are in writing and contained
in the employer’s written drug and alcohol testing policy;
- has sustained a personal injury, 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.
- Employers who require their employees to undergo drug or alcohol testing must use licensed, accredited or certified testing labs.
- Employers must report test results to employees within three working days after receipt of the results.
- If an employee or job applicant tests positive for drug use; the employee must be given written notice of the following rights:
- the right to request a copy of the test result report on any drug or alcohol test;
- the right to explain the positive test by indicating 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;
- the right to request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense; and
- the statutory limitations on the withdrawal of a job offer or employee discharge or discipline on the basis of a positive test result.
- Employers may not discharge an employee for whom a positive test result was the first such result for the employee on a drug or alcohol test requested by the employer unless the following conditions have been met:
- the employer has given the employee an opportunity to participate in 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; and
- the employee has either 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.
- Employers must give employees access to information in the employee’s personnel file 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 process and conclusions drawn from and actions taken based on the reports or other acquired information.
- Test result reports and other information acquired in the drug or alcohol testing process are confidential information, and may not be disclosed by an employer 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, subject to certain exceptions.
- The employee and job applicant protections provided under the Act are subject to preemption by federal regulations and do not apply to employees and job applicants where the specific work performed requires those employees and job applicants to be subject to drug and alcohol testing pursuant to federal regulations, federal contracts, and state agency rules that adopt federal regulations.
- An employer or laboratory that violates the Act is liable to an employee or job applicant for any damages allowable at law. If a violation is found and damages awarded, the court may also award reasonable attorney fees if the court finds that the employer knowingly or recklessly violated sections the Act.
When testing is permitted
Drug and alcohol testing of employees and applicants is permitted only as explicitly authorized by statute. Testing can only be done under a written drug and alcohol testing policy that meets statutory requirements and must be conducted by an accredited or licensed testing laboratory.
Drug and alcohol testing is permitted only in the following circumstances:
Job applicant testing: If a job applicant has received a conditional job offer, the employer may require or ask that applicant to undergo testing, as long as all applicants who receive conditional job offers for the same position are required or asked to undergo testing.
Under Minnesota law, a city may conduct controlled substance tests on job applicants only after the applicant has received a conditional offer of employment from the city. The special rules the city must meet to test job applicants include:
- The same test must be given to all applicants offered conditional employment for the same job. A city cannot select only certain applicants for testing, based on educational experience, appearance, or any other characteristic.
- A detailed written policy must be developed and notice of rights under the policy given to all applicants.
- The city must obtain consent before testing. Thus, it is recommended that before the testing, cities have an applicant sign an acknowledgement stating he or she has read the policy and understands that passing the test is a requirement of the job.
- Use an approved laboratory and follow proper chain-of-custody procedures.
- Follow requirements with regard to notifying applicants of the test results.
- Perform a confirmatory test on positive test results.
- Pay the cost of the testing, and maintain test results confidentially.
If all of the requirements have been met, and an applicant tests positive, the city may withdraw its conditional job offer based on a confirmatory positive test result, but must inform the applicant of the reason for the withdrawn offer.
Employers may not give pre-employment alcohol tests to job applicants to determine whether and how much alcohol an individual has consumed. Therefore, cities should not require applicants to submit to non-DOT pre-employment alcohol testing.
Routine physicals: An employer may require employees to take a test as part of a routine physical offered by the employer, as long as the physical takes place no more than once a year and the employee receives at least two weeks’ written notice of the testing requirement.
“Random testing: An employer may require employees to submit to random testing only if they are employed (1) in safety-sensitive positions, defined in the statute as jobs in which an impairment caused by drug or alcohol usage would threaten the safety or health of any person, or (2) are professional athletes and subject to a collective bargaining agreement permitting random testing.
Reasonable suspicion testing: An employer may require an employee to take a test if there is a reasonable suspicion that the employee is under the influence of drugs or alcohol; has violated the employer’s written rules on drug or alcohol use, possession, sale, or transfer while on the job, at the job site, or while operating the employer’s vehicle, machinery or equipment; has sustained a personal injury or caused another employee to sustain a personal injury; has caused a work-related accident; or was operating a vehicle or other equipment involved in a work-related accident.
Treatment program testing: If an employer has referred an employee to a chemical dependency treatment or evaluation program or if the employee is participating in chemical dependency treatment under the employee’s benefit plan, the employer may request or require the employee to submit to testing without notice during the evaluation or treatment period and for two years after the end of any prescribed treatment.
Required Employer Policies
An employer must perform the testing in accordance with a written drug and alcohol policy that meets several statutory requirements. The policy must explain who is subject to testing under the policy and when testing may be requested or required. It must outline what disciplinary consequences may occur based on a confirmatory positive test result, the employee’s right to refuse testing, the consequences of refusal, and the employee’s right to explain a positive result on a confirmatory test and to take and pay for a confirmatory retest.
The employer must give written notice of the policy to all affected employees at the time they become affected. The employer must post notice in an “appropriate and conspicuous” location at the workplace, stating that the policy exists and that employees can inspect the policy during regular work hours in the employer’s personnel office or other suitable locations.
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