A Minnesota employer may require its employees, as a condition of employment, to submit to a drug and alcohol test under certain circumstances.242 All employees performing the same job must be subject to the drug and alcohol test. There must be a written policy which contains information required by the Minnesota drug testing statute. Each employee should receive a copy of the policy, and notice regarding the availability of copies of the policy should be posted in conspicuous places. Testing can occur only under the following circumstances:
- The employer has reasonable suspicion to believe 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 at work or on the employer’s premises while operating the employer’s vehicle, machinery or equipment;
- Has sustained a personal injury or caused another employee to sustain a personal injury; or
- Has caused a work-related accident or was operating vehicles or machinery involved in a work-related accident.
- Testing an employee without notice is permissible during and up to two years following the employee’s completion of a drug or alcohol treatment program under an employee benefit plan or pursuant to a referral by the employer.
- A drug or alcohol test can be required as part of a routine physical exam, provided the test is required no more than once annually and employees have been given at least two weeks’ written notice prior to the test.
- Random testing, without notice, may be conducted for employees in safety sensitive positions. A “safety sensitive” position is a job in which drug or alcohol impairment would threaten the health or safety of any person.
Drug and alcohol testing may not be required of employees other than under the circumstances listed above. The testing must be done by a laboratory which meets certain criteria described in the drug testing statute. Certain chain of custody and laboratory procedures must be followed.
The employee has the right to both explain a positive test and have a third test (after the required initial and confirmatory tests) conducted at his or her own expense.
Other than suspension for safety reasons during the testing process, an employer may not discharge or otherwise discipline an employee after his or her first positive testing incident (positive initial and confirmatory and, if requested, third tests) unless the employee is first offered an opportunity to go into treatment or rehabilitation and the employee either fails to complete or refuses to participate in the treatment program. Treatment need not be paid for by the employer; however, all or a portion of the treatment program will be covered under most group health insurance plans. The employer, after consulting with a certified chemical dependency counselor or physician, may determine the appropriate treatment program.
Following a second positive testing incident, the employee is subject to discipline, up to and including termination. A description of possible disciplinary action must be set forth in the policy. All information in an employee’s personnel file involving drug and alcohol testing must be maintained in strictest confidence. Access to this information should be severely restricted within the company and should not be revealed to any person outside the company unless otherwise required by law or with the written consent of the employee.
Minnesota law has specific requirements with respect to testing procedures, including written notification to employees of test results and other procedures which must be followed by employers who have adopted drug testing policies. The law is comprehensive and is aimed at protection of both the employee and the employer.
If any adverse employment action is taken as a result of a drug or alcohol test, the employer has a responsibility under Minnesota law to notify the employee in writing of the reason for the decision within ten days of the date on which the decision is made.243
CREDITS: This is an excerpt from An Employer’s Guide to Employment Issues in Minnesota, provided by the Minnesota Department of Employment and Economic Development & Linquist & Vennum P.L.L.P., Tenth Edition, 2009. Copies are available without charge from the Minnesota Department of Employment and Economic Development, Small Business Assistance Office.
This post is also part of a series of posts on dealing with alcohol or drugs in the workplace.
442. Minn. Stat. § 609.27, subd. 1(5) (2007).
443. Minn. Stat. § 181.13(a) (2007).