Minnesota employers may require a job applicant to undergo a drug and alcohol test if a job offer has been made to the applicant and the same test is required of all applicants conditionally offered employment for the same position.36 The employer must have a written drug and alcohol testing policy which contains certain information required under Minnesota law. Each applicant should be given a copy of the policy, and notice of the existence and availability of the policy should be posted in appropriate and conspicuous workplace locations.
An applicant, before being tested, should first sign an acknowledgment that he or she has read the policy and understands that passing the drug and alcohol test is a requirement of the job. The applicant also has an opportunity, both before and after the testing, to list any prescription medications or any other explanation for a positive drug test. The applicant has other specific rights and the employer has specific responsibilities during the testing process. Testing must be done by a laboratory qualified by law to conduct testing, and there must be both an initial and confirmatory (second) drug test. If the confirmatory test is positive, the applicant may request a third test, to be conducted on the same sample at his or her own expense.
The employer must assure compliance with regulations published by the Minnesota Department of Health with respect to chain of custody and laboratory procedures, and it must assure that all drug testing information is kept strictly confidential.
An employer may withdraw a job offer if the applicant does not successfully pass the drug and alcohol screen. The employer must inform the applicant of the reason for the withdrawal within ten days of the decision not to hire.37
Note that different rules promulgated by the federal Department of Transportation (“DOT”) apply to testing of job applicants who, for example, if hired, would operate a commercial motor vehicle or would possess a commercial driver’s license in the course of their employment.38 These rules may preempt state law. Discussion of the DOT drug and alcohol testing requirements for employees appears in the Drug Free Workplace Act and other Federal Requirements section of this Guide. Because these rules are complex, any employer in this situation is advised to consult with counsel on how to properly implement a testing program.
CREDITS: This post is an excerpt from An Employer’s Guide to Employment Law Issues in Minnesota, originally produced through a collaborative effort between the Minnesota Department of Employment and Economic Development and Lindquist & Vennum, P.L.L.P.
This post is part of a series of posts on hiring an employee in Minnesota.
36. Minn. Stat § 181.951, subd. 2 (2007).
37. Minn. Stat §§ 181.951, subd. 2; 363A.20, subd. 8(c) (2007).
38. 49 C.F.R. §§ 382.101 et. seq. (2007).