Minnesota Employer Drug and Alcohol Policy

Minnesota’s Drug and Alcohol Testing in the Workplace Act

Minnesota regulates workplace drug and alcohol testing through the Drug and Alcohol Testing in the Workplace Act (DATWA), Minn. Stat. §§ 181.950 to 181.957. You have no legal duty to test (Minn. Stat. § 181.951, subd. 7), but if you choose to test, you may do so only as the Act authorizes, and only pursuant to a written testing policy that meets the Act’s minimum requirements (Minn. Stat. § 181.951, subd. 1).

That written policy must, at a minimum, state which employees or applicants are subject to testing, the circumstances under which you may request or require a test, the employee’s right to refuse and the consequences of refusing, any adverse personnel action that may follow a confirmed positive result, and the employee’s right to explain a positive result or request a confirmatory retest (Minn. Stat. § 181.952). You must give written notice of the policy to all affected employees when you adopt it, and post it conspicuously on your premises.

One limit deserves emphasis here: you may not discharge, discipline, discriminate against, or require rehabilitation of an employee based on a positive result from an initial screening test that has not been verified by a confirmatory test (Minn. Stat. § 181.953, subd. 10).

The Act also limits discharge on a first positive test. You may not discharge an employee for whom a positive confirmatory test is the first such result unless you have first given the employee the opportunity to participate, at the employee’s own expense or under a benefit plan, in a drug, alcohol, or cannabis counseling or rehabilitation program, and the employee has either refused to participate or failed to complete it (Minn. Stat. § 181.953, subd. 10).

Two recent changes reshaped the Act. First, cannabis: the 2023 cannabis-legalization law removed marijuana, THC, and cannabis products from the Act’s definition of “drug” and created a separate category of “cannabis testing” (Minn. Stat. § 181.950, subds. 4, 5a). It also barred you from requiring most job applicants to undergo cannabis testing as a condition of employment, subject to several statutory exceptions, including safety-sensitive positions, peace officers, firefighters, positions requiring face-to-face care, training, education, supervision, counseling, or medical assistance to children, vulnerable adults, or patients, positions requiring a commercial driver’s license, positions funded by a federal grant, and any other position for which state or federal law requires cannabis testing (Minn. Stat. § 181.951, subds. 8-9). A policy that treats cannabis the same as other drugs is now out of date. Second, oral fluid: effective August 1, 2024, the Act authorizes employer-administered oral-fluid (point-of-collection saliva) testing as an alternative to certified-laboratory testing (Minn. Stat. § 181.951, subd. 1(b)(2)), if you follow a written policy meeting Section 181.952 and the oral-fluid procedures set out in the Act (Minn. Stat. § 181.953, subd. 5a).

The Drug-Free Workplace Act and Other Federal Requirements

The Drug-Free Workplace Act of 1988 is codified at 41 U.S.C. §§ 8101 to 8106 (recodified in 2011 from former 41 U.S.C. § 701 et seq., so cite the current sections). It requires a business (a contractor other than an individual) awarded a covered federal contract to agree to provide a drug-free workplace. The trigger is not a fixed $100,000: the Act reaches any contract for property or services “of a value greater than the simplified acquisition threshold” (41 U.S.C. § 8102(a)(1)). That threshold is $250,000 by statute (41 U.S.C. § 134), and, as adjusted for inflation in the Federal Acquisition Regulation, it is $350,000 for awards made on or after October 1, 2025.

To be a “responsible source” eligible for such a contract, you must agree to provide a drug-free workplace by:

• Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in your workplace, and specifying the actions you will take against employees who violate the prohibition (41 U.S.C. § 8102(a)(1)(A));
• Giving each covered employee a copy of that statement (41 U.S.C. § 8102(a)(1)(C)); posting or announcing the policy alone does not satisfy the Act;
• Establishing a drug-free awareness program to inform employees about the dangers of drug abuse in the workplace, your policy of maintaining a drug-free workplace, available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed for drug abuse violations (41 U.S.C. § 8102(a)(1)(B)); and
• Making a good-faith effort to continue to maintain a drug-free workplace (41 U.S.C. § 8102(a)(1)(G)).

A contractor who is an individual bears a lighter duty: the individual need only agree not to engage in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in performing the contract, without the published-statement and awareness-program machinery (41 U.S.C. § 8102(a)(2)).

The statement must also make clear that, as a condition of employment on the contract, each employee will abide by its terms and will notify you of any criminal drug-statute conviction for a violation occurring in the workplace no later than five days after the conviction (41 U.S.C. § 8102(a)(1)(D)). You must then notify the contracting agency within ten days after you receive that notice or otherwise learn of the conviction (41 U.S.C. § 8102(a)(1)(E)). The statute’s own term is “contracting agency” (41 U.S.C. § 8102(a)(1)(E)); the familiar “contracting officer” phrasing comes from the implementing Federal Acquisition Regulation clause (FAR 52.226-7).

Within 30 days after receiving notice of a conviction, you must either take appropriate personnel action against the employee, up to and including termination, or require the employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved by a federal, state, or local health, law enforcement, or other appropriate agency (41 U.S.C. § 8104).

If you violate the Act, a federal agency may suspend payment under your contract, terminate the contract, and suspend or debar you (41 U.S.C. § 8102(b)). Debarment is not limited to the current contract: a contractor debarred by a final decision is ineligible for the award of any federal contract, and for participation in future federal procurement, for a period stated in the decision, not to exceed five years (41 U.S.C. § 8102(b)).

The Drug-Free Workplace Act reaches controlled substances (illegal drugs) only, not alcohol: it defines a “controlled substance” by reference to schedules I through V of the Controlled Substances Act, and alcohol is not a scheduled substance (41 U.S.C. § 8101(a)(2)). Because the Act reaches only controlled substances and not alcohol, if you are subject to it you may, as a matter of prudent practice, choose to address alcohol separately in your own workplace conduct policy. The Act does not require drug testing (41 U.S.C. § 8102(a)(1)).

Other federal rules and statutes may impose their own drug and alcohol policy and testing requirements. For example, if you employ workers in safety-sensitive positions regulated by the U.S. Department of Transportation (DOT), you must conduct mandatory drug and alcohol testing under the DOT-wide procedural rule (49 C.F.R. Part 40) together with the applicable operating-administration regulation (49 C.F.R. § 40.1). Part 40 “tells all parties who conduct drug and alcohol tests required by Department of Transportation (DOT) agency regulations how to conduct these tests and what procedures to use” (49 C.F.R. § 40.1(a)), and it reaches safety-sensitive transportation employees, including self-employed individuals, contractors, and volunteers as covered by the agency rules (49 C.F.R. § 40.1(b)). Covered workers include commercial truck and bus drivers (Federal Motor Carrier Safety Administration, 49 C.F.R. Part 382), aviation personnel (Federal Aviation Administration, 14 C.F.R. Part 120), railroad workers (Federal Railroad Administration, 49 C.F.R. Part 219), transit workers (Federal Transit Administration, 49 C.F.R. Part 655), pipeline and gas-operations workers (Pipeline and Hazardous Materials Safety Administration, 49 C.F.R. Part 199), and merchant marine personnel (U.S. Coast Guard, 46 C.F.R. Parts 4, 5, and 16).

You cannot escape these duties by outsourcing the program: as the employer, you are responsible for meeting all applicable requirements of Part 40 and for the actions of your officials, representatives, and agents, including service agents (49 C.F.R. § 40.11).

The authorized specimen methods have changed. Effective June 1, 2023, DOT amended Part 40 to add oral-fluid testing alongside urine testing (DOT Oral Fluid Testing Final Rule, 88 Fed. Reg. 27596 (May 2, 2023)). Oral-fluid testing is not yet operational, however, because the U.S. Department of Health and Human Services has not yet certified any laboratories to process DOT oral-fluid specimens. Part 40 has been amended again since then (most recently by a final rule effective June 10, 2026, 91 Fed. Reg. 25507), so confirm the current procedures against the eCFR rather than an older snapshot. These federal rules are detailed and complex; consider consulting your legal counsel for help complying with them.

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 & Lindquist & Vennum LLP, Tenth Edition, 2009. Copies are available without charge from the Minnesota Department of Employment and Economic Development, Small Business Assistance Office. Legal citations have been updated to reflect current law.

This post is also part of a series of posts on dealing with alcohol or drugs in the workplace.