Overview of the Minnesota Drug and Alcohol Testing in the Workplace Act

In the State of Minnesota, most drug and alcohol testing of job applicants and employees is governed by the Minnesota Drug and Alcohol Testing in the Workplace Act, Minn. Stat. §§ 181.950 et seq. (“DATWA”). DATWA is one of the most restrictive state drug and alcohol testing statutes in the nation. Because of the complex requirements of DATWA, employers should consult with legal counsel before requiring job applicants and employees in the State of Minnesota to undergo drug or alcohol testing. Likewise, employees should become familiar with their rights and obligations under DATWA in connection with any drug or alcohol testing in the workplace. This article provides a detailed overview of the statute.

Covered Testing, Employers, and Employees
DATWA does not impose a legal duty to test on any employers.[1] Minnesota employers that wish to conduct drug or alcohol testing in the State of Minnesota, however, must strictly comply with the requirements of DATWA.[2] DATWA applies to all employers that conduct drug and alcohol testing of job applicants, employees, or independent contractors in the State of Minnesota.[3]

Federally Mandated Testing
Some employers are also governed by mandatory federal drug and alcohol testing regulations covering certain safety-sensitive workers.[4] This article focuses primarily on non-regulated testing. Some federally regulated testing is exempt from DATWA (i.e. testing required by the Federal Motor Carrier Safety Administration, Federal Railroad Administration, and Federal Transit Administration).[5] Although other federally regulated testing is not automatically exempt, DATWA is preempted if it conflicts with federal law or would frustrate the purpose of federal law.[6]

Policy Requirements
Under DATWA, an employer must adopt a written testing policy that contains the following elements:[7]

the employees or job applicants subject to testing;
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 testing and the consequences of refusal;
any disciplinary or other adverse personnel action that may be taken based on a confirmatory test verifying a positive test result;
the right of an employee or job applicant to explain a positive test result and pay for a confirmatory retest; and
any other appeal procedures available.

Notice Requirements [8]

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, and to a job applicant before any testing occurs if the job offer is contingent on passing a drug or alcohol test.
An employer must 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 during regular business hours.

Categories of Permitted Testing
DATWA only authorizes employers to conduct the following categories of testing:

Job Applicant Testing: An employer may test a job applicant for drugs or alcohol only after making a conditional job offer of employment to the applicant. The employer must request or require the same test of all applicants conditionally offered employment for the same position. If an employer withdraws the job offer based on a positive test, it must inform the applicant of the reason for its decision.[9]
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.[10]
Random Testing: An employer may request or require employees to undergo drug and alcohol testing on a random selection basis only if: (1) they are employed in a safety-sensitive position; or (2) they are employed as professional athletes if the professional athlete is subject to a collective bargaining agreement permitting random testing but only to the extent consistent with the collective bargaining agreement.[11] A “safety-sensitive position” is a job, including any supervisory or management position, in which an impairment caused by drug or alcohol usage would threaten the health or safety of any person.[12]
Reasonable Suspicion Testing: An employer may request or require an employee to undergo drug and alcohol testing if the employer has a “reasonable suspicion”[13] that the employee:

(1) is under the influence of drugs or alcohol;
(2) 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;
(3) has sustained a personal injury, as that term is defined in Minn. Stat. § 176.011, subdivision 16 (the Minnesota Workers’ Compensation Act), or has caused another employee to sustain a personal injury; or
(4) has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.[14]

Treatment Program Testing: An employer may request or require an employee to undergo drug and alcohol testing if the employee: (1) has been referred by the employer for chemical dependency treatment or evaluation; or (2) is participating in a chemical dependency treatment program under an employee benefit plan. In such cases, the employee may be requested or required to undergo drug or alcohol 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 treatment program.[15]
No Arbitrary and Capricious Testing: Employers may not request or require drug or alcohol testing on an “arbitrary and capricious basis.”[16]

Required Pre-Testing Acknowledgment 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 to acknowledge that he or she has seen the employer’s drug and alcohol testing policy.[17] Employers should not request information regarding the individual’s prescription medications until after a positive test.[18]

Laboratories and Chain of Custody Procedures
Employers must use the services of a testing laboratory that has been certified or accredited by one of several authoritative bodies.[19] Employers must ensure that the laboratory follows certain chain-of-custody procedures.[20] The laboratory must conduct a confirmatory test on all samples that produced a positive test result on an initial screening test.[21] The laboratory must disclose to the employer a written test result report for each sample tested within three (3) working days after the test result.[22] The laboratory must store samples that produced a positive test result for at least six (6) months.[23]

Notification of Negative Test Results
Within three (3) working days after the employer receives the laboratory’s report, the employer must: (1) inform the test subject in writing of a negative test result; and (2) inform the individual in writing of his or her right to request and receive a copy of the test result report.[24]

Notification of Positive Test Results
Within three (3) working days after the employer receives a positive confirmatory test result from the laboratory, it must inform the test subject in writing of the following:

The test result;[25]
That the individual has the right to request and receive from the employer a copy of the test result report;[26]
That the individual has the right to explain the positive test and the employer may request that the employee or job applicant 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;[27]
That the individual has the right to a confirmatory retest (as discussed below);[28]
If the individual is a current employee, that the employer is limited from imposing certain discipline and discharge (as discussed below);[29]
If the individual is a job applicant, that the employer may not withdraw the offer based on a positive test result from an initial screening test that has not been verified by a confirmatory test.[30]

Employee Right to Explain or Challenge Positive Test
The individual has the right to explain a positive test within three (3) working days after notice of a positive test result.[31] In addition, the individual may challenge the test result by requesting a “confirmatory retest” of the sample at the individual’s own expense.[32] Within five (5) working days after notice of the confirmatory test result, the individual may notify the employer in writing of the employee’s or job applicant’s intention to obtain a confirmatory retest. Within three (3) working days after receipt of the notice, the employer must notify the original testing laboratory that the individual has requested the laboratory to conduct the confirmatory retest or transfer the sample to another properly licensed laboratory. If the confirmatory retest does not confirm the original positive test result, the employer may not take any adverse personnel action based on the original confirmatory test.

Employee Discipline and Discharge Protections
DATWA severely limits an employer’s right to discipline or discharge employees in connection with a drug or alcohol test. (Note that these restrictions generally do not apply to federally mandated tests required by FMCSA, FRA, or FTA.)[33]

An employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test.[34]
An employer may not discharge an employee for whom a positive test result on a confirmatory test was the first such result for the employee on a drug or alcohol test requested by the employer unless: (1) 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, 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 (2) 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.[35]
An employer may, however, temporarily suspend the tested employee or transfer that employee to another position at the same rate of pay pending the outcome of the confirmatory test and, if requested, the confirmatory retest, provided the employer believes that it is reasonably necessary to protect the health or safety of the employee, coemployees, or the public. An employee who has been suspended without pay must be reinstated with back pay if the outcome of the confirmatory test or requested confirmatory retest is negative.[36]
An employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of medical history information revealed to the employer pursuant to the drug and alcohol testing verification process unless the employee was under an affirmative duty to provide the information before, upon, or after hire.[37]
An employer may not retaliate against an employee for asserting rights and remedies provided in DATWA.[38]

Cost of Testing
Under DATWA, an employer may not request or require an employee or job applicant to contribute to, or pay the cost of, drug or alcohol testing except in the case of a confirmatory retest requested by the job applicant or employee.[39] Accordingly, employers are required to pay the costs associated with most testing.

Drug and Alcohol Testing Policy Development
Given the complex requirements of DATWA, employers should consult with legal counsel familiar with drug and alcohol testing laws prior to conducting drug and alcohol testing of job applicants or employees in the State of Minnesota. If the employer chooses to move forward with a drug or alcohol testing program, the employer should consider taking the following practical and legal steps:

Decide which employees will be tested;
Decide which types of tests will be conducted (e.g., job applicant, routine physical examination, random, reasonable suspicion, and/or treatment program testing);
Confirm that employees included in the random testing pool meet the statutory definition of “safety sensitive employees” (or are professional athletes subject to random testing under a collective bargaining agreement);
Draft a legally compliant written drug and alcohol testing policy;
Distribute the written drug and alcohol testing policy to all affected job applicants and employees;
Obtain a signed acknowledgment from all affected job applicants and employees confirming that they have seen a copy of the employer’s drug and alcohol testing policy prior to testing;
Post a notice in a conspicuous location announcing adoption of the drug and alcohol testing policy;
Adopt a procedure for implementing random selections throughout the year (or retain a third party vendor for this function);
Select one or more suitable collection sites familiar with workplace drug and alcohol testing requirements;
Retain a Medical Review Officer (MRO) to review all positive test results;
Draft appropriate consent forms, checklists, and notices to help administer the program and comply with DATWA;
Appoint an individual (e.g., Human Resources Director) to serve as the drug and alcohol testing program administrator; and
Adopt a separate drug and alcohol testing program for all “regulated” employees subject to mandatory federal drug and alcohol testing requirements (e.g., commercial drivers subject to Federal Motor Carrier Safety Administration (FMCSA) drug and alcohol testing regulations).

Conclusion
The State of Minnesota has adopted some of the most complex and restrictive regulations governing workplace drug and alcohol testing programs around the country. Because of the unique requirements of DATWA, employers should consult with legal counsel familiar with state and federal drug testing laws before requiring job applicants and employees in the State of Minnesota to undergo drug or alcohol testing. Similarly, employees should become familiar with their rights and obligations under DATWA in connection with any drug or alcohol testing in the workplace. If an employee has failed a drug or alcohol test conducted in the State of Minnesota, they may wish to consult with legal counsel to understand their rights. If you are an employee or employer in need of legal assistance regarding Minnesota drug and alcohol testing laws, contact any of the Trepanier MacGillis Battina P.A. employment attorneys.

____________________

About the Author:
Minneapolis employment attorney Craig W. Trepanier practices extensively in the area of employment law and has experience drafting pre-employment screening procedures, criminal background check programs, and drug and alcohol testing programs. Craig may be reached at 612.455.0502 or craig@trepanierlaw.com. Trepanier MacGillis Battina P.A. is a Minneapolis employment law firm located in Minneapolis, Minnesota.

Annotations

[1] See Minn. Stat. § 181.951, subd. 7.
[2] See Minn. Stat. § 181.951, subd. 1(a).
[3] See Minn. Stat. § 181.950, subd. 6 (definition of “employee”); Minn. Stat. § 181.950, subd. 7 (definition of “employer”); Minn. Stat. § 181.950, subd. 9 (definition of “job applicant”).
[4] The following chart provides some of the most significant federally mandated drug and alcohol testing regulations:

Covered Industry	Federal Agency	Federal Regulations
Commercial Drivers	Federal Motor Carrier Safety Administration (FMCSA)	49 C.F.R. § 382 and 49 C.F.R. § 40
Railroad Workers	Federal Railroad Administration (FRA)	49 C.F.R. § 219, 49 C.F.R. § 240 and 49 C.F.R. § 40
Transit Workers	Federal Transit Administration (FTA)	49 C.F.R. § 655 and 49 C.F.R. § 40
Airline Workers	Federal Aviation Administration (FAA)	14 C.F.R. § 120 and 49 C.F.R. § 40
Pipeline Workers	Pipeline and Hazardous Materials Safety Administration (PHMSA)	49 C.F.R. § 199 and 49 C.F.R. § 40
Commercial Vessel Workers	U.S. Coast Guard (USCG)	46 C.F.R. § 4, 46 C.F.R. § 16, and 49 C.F.R. § 40
Nuclear Power Plant Workers	Nuclear Regulatory Commission (NRC)	10 C.F.R. § 26
Energy Department Workers	Department of Energy (DOE)	10 C.F.R. § 707
Defense Contractor Workers	Department of Defense (DOD)	48 C.F.R. § 252.223-7004

[5] See Minn. Stat. § 221.031, subd. 10 (“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 [DATWA] 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.”); see also Minn. Stat. § 221.605, subd. 1(b) (An interstate carrier or private carrier engaged in interstate commerce who complies with federal regulations governing testing for controlled substances and alcohol is exempt from the requirements of sections 181.950 to 181.957 [DATWA] unless the carrier’s drug testing program provides for testing for controlled substances in addition to those listed in Code of Federal Regulations, title 49, section 40.85. Persons subject to this section may test for drugs, in addition to those listed in Code of Federal Regulations, title 49, section 40.85, only in accordance with sections 181.950 to 181.957 and rules adopted under those sections.)
[6] See Minn. Stat. § 181.957, subds. 1 and 2 (preemption recognized under DATWA); 49 U.S.C. § 31306(g) (federal preemption under Federal Omnibus Transportation Employee Testing Act); 49 C.F.R. § 382.109 (FMCSA preemption).

[7] Minn. Stat. § 181.952, subd. 1.
[8] Minn. Stat. § 181.952, subd. 2.
[9] Minn. Stat. §§ 181.951, subds. 2 and 11.
[10] Minn. Stat. § 181.951, subd. 3.
[11] Minn. Stat. § 181.951, subd. 4.
[12] Minn. Stat. § 181.950, subd. 13.
[13] DATWA defines “reasonable suspicion” as a basis for forming a belief based on specific facts and rational inferences drawn from those facts. Minn. Stat. § 181.950, subd. 11.
[14] Minn. Stat. § 181.951, subd. 5.
[15] Minn. Stat. § 181.951, subd. 6.
[16] Minn. Stat. § 181.951, subd. 1(c). The Minnesota Court of Appeals has held 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, 565 (Minn. Ct. App. 1990).
[17] Minn. Stat. § 181.953, subd. 6.
[18] DATWA was amended in 1997 to eliminate the employer’s obligation to seek prescription medication information on the pre-testing acknowledgement form. This change brought DATWA into compliance with the Americans with Disabilities Act (“ADA”), which generally prohibits employers from seeking such information to verify a positive test until after a positive test result. See EEOC, “Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations,” No. 915.002 (1995).
[19] Minn. Stat. § 181.953, subd. 1.
[20] See Minn. Stat. §§ 181.953, subds. 3 and 5.
[21] Minn. Stat. § 181.953, subd. 3.
[22] Minn. Stat. § 181.953, subd. 3.
[23] Minn. Stat. § 181.953, subd. 3.
[24] See Minn. Stat. §§ 181.953, subds. 7 and 8.
[25] Minn. Stat. § 181.953, subd. 7.
[26] See Minn. Stat. § 181.953, subds. 7 and 8.
[27] See Minn. Stat. § 181.953, subds. 6(b) and 7.
[28] See Minn. Stat. § 181.953, subds. 7 and 9.
[29] See Minn. Stat. § 181.953, subds. 7 and 10.
[30] See Minn. Stat. § 181.953, subds. 7 and 11.
[31] See Minn. Stat. § 181.953, subds. 6(b) and 6(c).
[32] See Minn. Stat. § 181.953, subd. 9 (governing confirmatory retests).
[33] See fn. 5 (supra) (discussing exemptions from DATWA).
[34] Minn. Stat. § 181.953, subd. 10(a).
[35] Minn. Stat. § 181.953, subd. 10(b).
[36] Minn. Stat. § 181.953, subd. 10(c).
[37] Minn. Stat. § 181.953, subd. 10(d).
[38] Minn. Stat. § 181.956, subd. 5.
[39] Minn. Stat. § 181.853, subd. 4.