MN Drug Testing Rules for Employers

Does Minnesota Law Restrict Workplace Drug Testing?

Yes, comprehensively. DATWA opens with a flat prohibition: an employer may not request or require an employee or job applicant to undergo drug and alcohol testing except as authorized in the statute. Minn. Stat. § 181.951, subd. 1(a). Even where testing is authorized, you may not request or require drug and alcohol testing “on an arbitrary and capricious basis,” Minn. Stat. § 181.951, subd. 1(c), and you may not request or require cannabis testing “on an arbitrary or capricious basis,” Minn. Stat. § 181.951, subd. 8(c). Minnesota now carries two differently worded standards in the same section.

Two threshold conditions sit on top of every Minnesota testing program, and Minn. Stat. § 181.951, subd. 1(b) states both in one sentence: an employer may not request or require drug or alcohol testing unless the testing is done under a written policy containing the minimum information required in section 181.952, and the testing either runs through a qualifying laboratory or complies with the oral fluid test procedures of section 181.953, subdivision 5a. Cannabis testing reaches the same two conditions by a different route. Minn. Stat. § 181.950, subd. 5 keeps cannabis outside the phrase “drug or alcohol testing” unless a section says otherwise, so the hooks are Minn. Stat. § 181.951, subd. 8(d), which requires cannabis testing authorized under that section to comply with the safeguards in sections 181.953 and 181.954, and Minn. Stat. § 181.953, subd. 1, which names cannabis testing expressly.

1. You must have a written drug and alcohol and cannabis testing policy that meets the minimum content and notice requirements of Minn. Stat. § 181.952.
2. You must use either a qualifying testing laboratory under Minn. Stat. § 181.953, subd. 1 or the oral fluid testing procedures in subdivision 5a, added by Laws 2024, ch. 110, art. 7, § 8 and effective August 1, 2024 under the default rule in Minn. Stat. § 645.02. For drug testing, a laboratory qualifies if it is certified by the National Institute on Drug Abuse, accredited by the College of American Pathologists under its forensic urine drug testing laboratory program, or licensed to test for drugs by the New York State Department of Health. For alcohol testing, only the New York license or College of American Pathologists accreditation qualifies.

A program missing either the policy or a compliant testing method is unauthorized regardless of how legitimate the business reason for the test.

Two further limits travel with whichever route you pick. Minn. Stat. § 181.953, subd. 4 bars you from testing your own employees and applicants through a laboratory you own and operate, with a narrow state-agency exception, and bars you from requiring the employee or applicant to contribute to or pay the cost of testing, except for the employee-requested confirmatory retest under subdivision 9.

The Five Authorized Testing Situations

DATWA recognizes five testing categories, and Minn. Stat. § 181.951, subd. 1(a) makes them exclusive: an employer may not request or require drug and alcohol testing “except as authorized in this section.” Testing outside these categories is unauthorized under DATWA, though Minn. Stat. § 181.957, subd. 1 withdraws the act’s employee and job applicant protections where the specific work performed requires drug, alcohol, or cannabis testing under one of the four sources it lists, and subdivision 2 limits that withdrawal to the extent those protections are not inconsistent with or specifically preempted by the federal regulations, contract, or requirements.

1. Job applicant testing. After a conditional job offer, you may request or require a drug and alcohol test if the same test is requested or required of all job applicants conditionally offered employment for that position. If the offer is withdrawn, as provided in section 181.953, subdivision 11, you must inform the applicant of the reason. Minn. Stat. § 181.951, subd. 2. Cannabis testing of applicants is different: you must not request or require it as a condition of employment unless state or federal law requires it, and cannabis is treated as a drug subject to the ordinary testing rules only for the positions listed in subdivision 9. Minn. Stat. § 181.951, subds. 8, 9.

2. Routine physical examination testing. Existing employees may be tested for drugs and alcohol as part of a routine physical examination, provided the test is requested or 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 physical examination. Minn. Stat. § 181.951, subd. 3.

3. Random testing. Random testing is restricted to two narrow groups: employees in safety-sensitive positions and professional athletes subject to a collective bargaining agreement permitting random testing, and for those athletes only to the extent consistent with that agreement. Minn. Stat. § 181.951, subd. 4.

4. Reasonable suspicion testing. Reasonable suspicion supports a test on four grounds and no others: suspicion that the employee is under the influence of drugs, cannabis, or alcohol; has violated your written work rules prohibiting the use, possession, impairment, sale, or transfer of drugs or alcohol, cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products while the employee is working, on your premises, or operating your vehicle, machinery, or equipment, if those work rules are in writing and contained in your written cannabis testing or drug and alcohol testing policy; has sustained a personal injury as defined in Minn. Stat. § 176.011, subd. 16 or has caused another employee to sustain one; or has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident. Minn. Stat. § 181.951, subd. 5.

The work-rule ground is narrower than employers expect. It reaches the use, possession, impairment, sale, or transfer of drugs or alcohol, cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products while the employee is working, while on your premises, or while operating your vehicle, machinery, or equipment, and only if the rules are in writing and contained in your written testing policy. The accident ground is narrower too: it reaches an employee who caused a work-related accident, or who was operating or helping to operate the machinery, equipment, or vehicles involved in one. It does not reach an employee who was merely present at the accident.

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. 12, so a vague impression will not support a test.

5. Treatment program testing. Employees referred by you for substance use disorder evaluation or treatment, or participating in such a treatment program under an employee benefit plan, may be required to undergo cannabis testing and drug and alcohol testing without prior notice during the evaluation or treatment period and for up to two years following completion of any prescribed substance use disorder treatment program. Minn. Stat. § 181.951, subd. 6.

The cannabis amendments did not add a sixth category. They rewrote subdivisions 4, 5, and 6 to authorize “cannabis testing and drug and alcohol testing,” and added subdivision 8 (limits on cannabis testing) and subdivision 9 (the positions for which cannabis is treated as a drug). Minn. Stat. § 181.950, subd. 5 provides that drug and alcohol testing “do not include cannabis or cannabis testing, unless stated otherwise,” so an authorization phrased as drug and alcohol testing alone does not reach cannabis testing. For employees outside the positions listed in subdivision 9, cannabis testing is authorized under the reasonable suspicion and treatment program categories, each of which says so expressly. Minn. Stat. § 181.951, subds. 5, 6. Random cannabis testing is narrower still, reaching only safety-sensitive positions and covered professional athletes.

The statute also carries an underappreciated rule: nothing in it requires you to test anyone. Minn. Stat. § 181.951, subd. 7 says employers “do not have a legal duty to request or require an employee or job applicant to undergo drug or alcohol testing as authorized in this section,” so testing under this law is your option rather than an obligation. A separate state or federal requirement can still compel testing: 49 C.F.R. Part 382 applies to employers and drivers who operate a commercial motor vehicle in commerce and are subject to the commercial driver’s license requirements of Part 383, and it requires an employer to notify a driver before each alcohol or controlled substances test that Part 382 requires the test. 49 C.F.R. §§ 382.103(a), 382.113.

Two definitions decide who the statute reaches. “Employee” includes an independent contractor and a person working for an independent contractor who performs services for compensation, and “employer” means a person or entity located or doing business in Minnesota with one or more employees, including the state and its political subdivisions. Minn. Stat. § 181.950, subds. 6, 7. There is no small-employer threshold.

Required Contents of Your Written Policy

Since the 2023 and 2024 amendments, the instrument the statute governs is your “drug and alcohol and cannabis testing policy,” not a drug-and-alcohol policy alone. It must, at a minimum, set forth six items:

1. The employees or job applicants subject to testing under the policy.
2. The circumstances under which drug or alcohol and cannabis testing may be requested or required.
3. The right of an employee or job applicant to refuse to undergo drug and alcohol and cannabis testing and the consequences of refusal.
4. Any disciplinary or other adverse personnel action that may be taken based on a confirmatory test verifying a positive test result on an initial screening test.
5. The right of an employee or job applicant to explain a positive test result on a confirmatory test or request and pay for a confirmatory retest.
6. Any other appeal procedures available.

Minn. Stat. § 181.952, subd. 1. A policy missing any of the six falls below the statutory minimum, and the gap has teeth. Minn. Stat. § 181.951, subd. 1(b) says you may not request or require testing unless it is done pursuant to a written policy “that contains the minimum information required in section 181.952,” and Minn. Stat. § 181.952, subd. 3(b) says you may only enact and enforce cannabis work rules “in a written policy that contains the minimum information required by this section.” In my practice, this is where most disputes start: a stock policy pulled from a national HR template will often omit the explanation right, the retest right, or the appeal procedures, all of which are mandatory in Minnesota. A policy drafted before 2023 has a second problem, because it addresses only drugs and alcohol and therefore does not meet the current minimum content for cannabis testing at all.

If you intend to enforce cannabis work rules (no use, possession, impairment, sale, or transfer while an employee is working, on your premises, or operating your vehicle, machinery, or equipment), you may enact and enforce those rules only in a written policy containing that minimum information. Minn. Stat. § 181.952, subd. 3(b). The companion paragraph confirms the underlying right: unless state or federal law provides otherwise, you are not required to permit or accommodate cannabis use, possession, impairment, sale, or transfer while an employee is working, on your premises, or operating your vehicle, machinery, or equipment. A cannabis prohibition that lives in a separate handbook section without those policy elements supports neither testing nor enforcement of the rule.

Notice You Must Give Employees and Applicants

DATWA requires four overlapping notices, all in writing, and all now covering cannabis testing as well as drug and alcohol testing:

• On adoption of the policy, to all affected employees.
• On transfer to an affected position under the policy, to a previously nonaffected employee.
• On hire, to a job applicant before any testing of the applicant if the job offer is made contingent on the applicant passing drug and alcohol testing.
• Posted notice in an appropriate and conspicuous location on your premises that you have adopted a drug and alcohol testing and cannabis testing policy and that copies of the policy are available for inspection during regular business hours by employees or job applicants in your personnel office or other suitable locations.

Minn. Stat. § 181.952, subd. 2. The applicant notice rule deserves special attention. A conditional-offer letter that mentions a drug screen is not notice of the policy, and before requesting the test you must also provide a form on which the applicant acknowledges having seen your testing policy. Minn. Stat. § 181.953, subd. 6(a). Sending the policy itself with the conditional offer is the practical way to satisfy both.

When You Can Randomly Test Employees

In my practice, the random-testing rules generate the bulk of DATWA disputes. Random testing is allowed only for employees in safety-sensitive positions, or for professional athletes covered by a collective bargaining agreement that permits it. Minn. Stat. § 181.951, subd. 4. A safety-sensitive position is “a job, including any supervisory or management position, in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person.” Minn. Stat. § 181.950, subd. 13. Eligibility therefore turns on what the job actually involves rather than its title or department. Because Minn. Stat. § 181.951, subd. 4 limits random selection testing to safety-sensitive positions and covered professional athletes, an office, sales, retail, or management role can be randomly tested only if impairment in that role would threaten the health or safety of any person.

Two operational points trip up employers.

The selection mechanism must be truly random. Minn. Stat. § 181.950, subd. 11 defines a random selection basis as a mechanism that gives every employee in the group an equal probability of selection and that gives you no discretion to waive the selection of any employee the mechanism picks. A supervisor drawing a name from a list the supervisor pre-selected is not random selection, and a supervisor who can excuse a selected employee has defeated the definition just as completely.

Designations must be defensible. A position is not safety-sensitive because you say so. An employee randomly tested outside that definition may recover damages, plus attorney fees if the court finds the violation knowing or reckless, under Minn. Stat. § 181.956, subd. 2. I suggest documenting, position by position, the specific duty that impairment would make dangerous.

How Cannabis Changed the Analysis

The 2023 cannabis legalization act materially changed how DATWA treats marijuana, hemp products, and lower-potency hemp edibles. Three points dominate the analysis.

1. Cannabis is no longer a “drug” under DATWA. Minn. Stat. § 181.950, subd. 4 excludes marijuana, tetrahydrocannabinols, cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products from the definition, and subdivision 5 provides that drug and alcohol testing “do not include cannabis or cannabis testing, unless stated otherwise.” Cannabis testing is separately defined at subdivision 5a. The practical consequence for your file cabinet: because Minn. Stat. § 181.950, subds. 4, 5 place both cannabis and cannabis testing outside those definitions, a policy written before 2023 that says only “drug and alcohol testing” does not authorize cannabis testing, except as to the positions listed in Minn. Stat. § 181.951, subd. 9, where cannabis is treated as a drug.

A five-panel screen reaches both categories once cannabis is legal. Minn. Stat. § 181.950, subds. 5, 5a define cannabis testing and drug and alcohol testing as separate analyses, and the drug and alcohol definitions exclude “cannabis or cannabis testing, unless stated otherwise,” so the THC result falls under the cannabis rules while the panel’s other four substances stay under the drug rules. That default flips for the positions listed in Minn. Stat. § 181.951, subd. 9, where “cannabis and its metabolites are considered a drug and subject to the drug and alcohol testing provisions in sections 181.950 to 181.957.”

2. Applicant cannabis testing is generally prohibited. Unless state or federal law requires otherwise, you must not request or require a job applicant to undergo cannabis testing as a condition of employment, and must not refuse to hire an applicant solely because the applicant submits to an authorized cannabis or drug and alcohol test and the result indicates the presence of cannabis. Minn. Stat. § 181.951, subd. 8(a)-(b). The 2024 amendments broadened that prohibition by striking the words “solely for the purpose of determining the presence or absence of cannabis,” so you may no longer reach cannabis on a job applicant through a combined multi-substance panel unless state or federal law requires the test or the position is one of the subdivision 9 exceptions.

The exceptions list is narrow: safety-sensitive positions, peace officer positions, and firefighter positions; positions requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to children, vulnerable adults, or patients receiving health care services from a provider for the treatment, examination, or emergency care of a medical, psychiatric, or mental condition; positions requiring a commercial driver’s license or requiring an employee to operate a motor vehicle for which state or federal law requires drug or alcohol testing; positions funded by a federal grant; and any other position for which state or federal law requires cannabis testing. Minn. Stat. § 181.951, subd. 9. Subdivision 9 does not itself authorize a test or a hiring decision. For the listed positions cannabis is treated as a drug subject to the ordinary testing provisions, so applicant testing still runs on the subdivision 2 conditions.

3. You may still prohibit on-the-job use, possession, and impairment. Minn. Stat. § 181.952, subd. 3 permits written work rules barring cannabis use, possession, impairment, sale, or transfer while an employee is working, on your premises, or operating your vehicle, machinery, or equipment, and those rules must live inside a policy carrying the six minimum elements. Off-premises, nonworking-hours use of lawful consumable products, cannabis included, is protected by Minn. Stat. § 181.938, subd. 2, subject to the exceptions in Minn. Stat. § 181.938, subd. 3. Those exceptions include a bona fide occupational requirement, avoiding a conflict of interest, an applicant’s or employee’s refusal or failure to comply with the conditions established by a substance use disorder treatment or aftercare program, and action taken on the basis of past or present job performance. The sole remedy for a violation of subdivision 2 is a civil action for damages limited to lost wages and benefits, and the court must award the prevailing party, whether plaintiff or defendant, court costs and a reasonable attorney fee. Minn. Stat. § 181.938, subd. 4.

The cannabis-positive employee in a non-excepted role is the hardest case under current law, and the source of the answer is often mis-stated. Minn. Stat. § 181.953, subd. 10a lists a confirmatory positive alongside impairment and a written-work-rule violation rather than requiring all three together, but every one of its four grounds sits under the same opening condition: the adverse action must be for cannabis use, possession, impairment, sale, or transfer while the employee is working, on your premises, or operating your vehicle, machinery, or equipment. A confirmatory positive verifies the presence of cannabis in the sample, which subdivision 10a lists as a ground separate from the impairment ground in clause (1). That subdivision covers cannabis use, possession, impairment, sale, or transfer while the employee is working, on your premises, or operating your vehicle, machinery, or equipment, and it permits discipline, discharge, or other adverse personnel action on four grounds: the employee lacks the clearness of intellect and control of self they otherwise would have; cannabis testing verifies cannabis following a confirmatory test; your written work rules provide for it in a policy carrying the minimum information Minn. Stat. § 181.952 requires; or the action is otherwise authorized or required by state or federal law, including where not acting would cost you a monetary or licensing-related benefit under federal law.

The real limits sit elsewhere. You must first have had statutory grounds to test at all under Minn. Stat. § 181.951, which allows employee cannabis testing on a random basis only for safety-sensitive positions and certain professional athletes, on reasonable suspicion, or in connection with substance use disorder treatment. For the positions listed in subdivision 9, cannabis is treated as a drug, so the ordinary drug and alcohol testing grounds, including routine physical examination testing under subdivision 3, reach cannabis as well. An unconfirmed screening result cannot support discharge, discipline, discrimination, or required rehabilitation, although you may temporarily suspend the employee or transfer the employee at the same rate of pay pending the confirmatory result when you believe that reasonably necessary to protect the health or safety of the employee, coemployees, or the public, with reinstatement and back pay if a suspension without pay ends in a negative result. A first confirmed positive cannot support discharge until the employee has been offered and has refused or failed a counseling or rehabilitation program. Minn. Stat. § 181.953, subd. 10. Cannabis use off your premises during nonworking hours remains protected by Minn. Stat. § 181.938, subd. 2.

What You Must Do After a First Positive Confirmatory Test

This is the rule out-of-state employers most often miss. For a first positive confirmatory test, you may not discharge the employee until two conditions are both satisfied. First, you must have given the employee an opportunity to participate, at the employee’s own expense or pursuant to coverage under an employee benefit plan, in a drug, alcohol, or cannabis counseling or rehabilitation program, whichever is more appropriate as you determine after consulting a certified chemical use counselor or a physician trained in the diagnosis and treatment of substance use disorder. Second, the employee must have refused to participate in that program or failed to complete it successfully, shown by withdrawing before completion or by a positive result on a confirmatory test after completing it. Minn. Stat. § 181.953, subd. 10(b).

While a confirmatory test is pending, you may temporarily suspend the tested employee or transfer the employee to another position at the same rate of pay pending the outcome of the confirmatory test and, if requested, the confirmatory retest, provided you believe it reasonably necessary to protect the health or safety of the employee, coemployees, or the public. An employee who was suspended without pay must be reinstated with back pay if the confirmatory test or the requested confirmatory retest comes back negative. Minn. Stat. § 181.953, subd. 10(c). An employee who was transferred at the same rate of pay, or suspended with pay, has no back-pay claim under this paragraph.

The first-positive rehabilitation requirement does not apply to job applicants. For applicants, you may not withdraw a contingent job offer based on an initial screening positive that has not been verified by a confirmatory test, and if the applicant requests a confirmatory retest that does not confirm the original result, no adverse action may be based on that result. Minn. Stat. § 181.953, subds. 9, 11. After a confirmatory positive on a drug or alcohol test Minn. Stat. § 181.953, subd. 11 no longer bars withdrawal, subject to the applicant’s confirmatory retest right under subdivision 9, but you must inform the applicant of the reason for withdrawing the offer, and you may not refuse to hire an applicant solely because an authorized test shows the presence of cannabis unless the position is one the statute excepts or state or federal law requires otherwise. Minn. Stat. § 181.951, subds. 2, 8, 9.

A discharge after a first positive that skipped the rehabilitation step is the textbook DATWA violation. That mistake can support a claim seeking damages, equitable relief including reinstatement with back pay, and attorney fees where the statutory standard is met. The exposure window is longer than most employers assume: in Sipe v. STS Manufacturing, Inc., 834 N.W.2d 683 (Minn. 2013), the Minnesota Supreme Court concluded that a claim under section 181.953, subdivision 10, “is subject to the six-year statute of limitations under section 541.05, subdivision 1(2), as a cause of action ‘upon a liability created by statute.’”

This rule runs with the work. Where the specific work performed requires testing under one of the four sources listed in Minn. Stat. § 181.957, subd. 1, these protections do not apply except as subdivision 2 preserves them, and the revisor publishes a note on section 181.953 recording that subdivision 10 “was found preempted as applied to the physical qualifications for federal motor carrier drivers by federal motor carrier safety regulations in Visnovec v. Yellow Freight System, Inc., 754 F.Supp. 142 (D. Minn. 1990).”

Employee Rights During the Testing Process

DATWA layers several procedural protections that your written policy must reflect.

• Acknowledgment before testing. Before requesting a test, you must provide a form, developed by you, on which the employee or applicant acknowledges having seen your drug and alcohol testing or cannabis testing policy. Minn. Stat. § 181.953, subd. 6(a).
• Right to refuse drug, alcohol, and cannabis testing, with the consequences of refusal spelled out in the policy. Minn. Stat. § 181.952, subd. 1(3).
• Confirmatory testing. A laboratory must run a confirmatory test on every sample that produced a positive result on an initial screening test, and you may not discharge, discipline, discriminate against, or require rehabilitation of an employee, or withdraw a contingent job offer, based on an initial screening positive that a confirmatory test has not verified. Minn. Stat. § 181.953, subds. 3, 10(a), 11. Oral fluid testing runs on a different track: subdivision 3’s mandatory laboratory confirmatory test and the subdivision 5 chain-of-custody procedures do not apply to it, Minn. Stat. § 181.953, subd. 3(b), and subdivision 5a, paragraph (b) instead gives the employee or job applicant 48 hours after a positive, inconclusive, or invalid result to request laboratory testing at your cost. Subdivision 5a, paragraph (b) applies the rights, notice, and limitations in subdivision 6, paragraph (b), and subdivisions 7 to 8 and 10 to 11 to that laboratory test. Minn. Stat. § 181.953, subds. 3(b), 5a.
• Written notice of results within three working days. After receiving the laboratory report, you must inform the employee or applicant in writing of the result and of the right under subdivision 8 to request and receive a copy of the test result report, and, on a positive confirmatory result, of the rights under subdivision 6, paragraph (b), subdivision 9, and either subdivision 10 or 11. Minn. Stat. § 181.953, subd. 7.
• Right to a copy of the report. On request, the employee or job applicant receives from you a copy of the test result report on any drug or alcohol test or cannabis test. Minn. Stat. § 181.953, subd. 8.
• Right to explain a positive confirmatory result. Within three working days after notice, the employee or applicant may submit information explaining the result, and you may ask the person to identify any prescription or over-the-counter medication currently or recently taken. Minn. Stat. § 181.953, subd. 6(b)-(c).
• Right to a confirmatory retest of the original sample at the employee’s own expense, on written notice of that intention within five working days after notice of the confirmatory result. If the retest does not confirm the original positive, no adverse personnel action based on the original confirmatory test may be taken. Minn. Stat. § 181.953, subd. 9.
• Privacy of results. The laboratory may report to you only the presence or absence of drugs, cannabis, alcohol, or their metabolites in the sample. Test result reports are private and confidential information for private sector employees and applicants, and private data on individuals under chapter 13 for public sector employees and applicants, and neither you nor the laboratory may disclose them to another employer or to a third-party individual, governmental agency, or private organization without the tested person’s written consent. Minn. Stat. § 181.954, subds. 1, 2. Subdivision 3 carves out three uses: an arbitration under a collective bargaining agreement, an administrative hearing under chapter 43A or other applicable law, or a judicial proceeding when relevant; disclosure to a federal agency as federal law, regulation, order, or contract compliance requires; and disclosure to a substance abuse treatment facility for evaluation or treatment.
• No criminal use. Positive test results from an employer drug, alcohol, or cannabis testing program may not be used as evidence in a criminal action against the employee or job applicant tested. Minn. Stat. § 181.954, subd. 4.
• Oral fluid testing rights. If you use oral fluid testing, the employee must be told the result at the time of the test, and within 48 hours of a result that is positive, inconclusive, or invalid the employee or job applicant may request laboratory testing at no cost to them, using a laboratory under subdivision 1 and following the laboratory testing standards in subdivisions 1 to 5. The rights, notice, and limitations in subdivision 6, paragraph (b), and subdivisions 7 to 8 and 10 to 11 apply to that laboratory test; any further confirmatory retest is at the employee’s or job applicant’s own expense. Minn. Stat. § 181.953, subd. 5a.

One definition decides what counts as failing. A “positive test result” is a finding of drugs, cannabis, alcohol, or their metabolites at or above the threshold detection levels in one of the programs listed in section 181.953, subdivision 1. Minn. Stat. § 181.950, subd. 10. Presence at the program threshold is the test, no impairment finding is required, and the level is not one you choose.

What Happens If You Get This Wrong

DATWA creates a private right of action. Minn. Stat. § 181.956. Available relief includes:

• Civil damages. An employer or laboratory that violates sections 181.950 to 181.954 is liable to an employee or job applicant injured by the violation for any damages allowable at law.
• Injunctive relief. An employee, a job applicant, a state, county, or city attorney, or a collective bargaining agent that fairly and adequately represents the protected class may ask the district court to enjoin an employer or laboratory that “commits or proposes to commit” a violation, so a policy can be challenged before anyone is tested under it.
• Other equitable relief in the court’s discretion, including ordering the injured employee or job applicant reinstated with back pay.
• Reasonable attorney fees, which the court may award in its discretion only if it finds a violation, awards damages, and finds that the employer knowingly or recklessly violated the act.

Retaliation is separately prohibited. You may not discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate against an employee for asserting rights and remedies under the testing statute, separate from any violation in the testing itself. Minn. Stat. § 181.956, subd. 5. That prohibition was broadened effective July 1, 2023, from a bare bar on retaliation to the current enumerated list. Note how the section is built: section 181.956 attaches its damages, injunctive relief, and other equitable relief to violations of sections 181.950 to 181.954, so the retaliation prohibition states no separate remedy of its own, and it protects an employee for asserting the rights those same sections provide.

For employees covered by a collective bargaining agreement, the employee or bargaining agent must first exhaust all applicable grievance procedures and arbitration proceeding requirements under the contract, but the employee’s right to bring an action is not affected by a decision of the bargaining agent not to pursue a grievance. Minn. Stat. § 181.956, subd. 1.

CDL Drivers and Other Federally Regulated Positions

Federal preemption is handled separately by Minn. Stat. § 181.957. Subdivision 1 excludes employees and job applicants from sections 181.950 to 181.956 where the specific work performed requires drug, alcohol, or cannabis testing under federally preemptive regulations, federal regulations or requirements necessary to operate federally regulated facilities, federal contracts testing for security, safety, or protection of sensitive or proprietary data, or conforming state agency rules. Subdivision 2 limits that exclusion, requiring employers and testing laboratories to comply with sections 181.950 to 181.956 as to those workers to the extent the provisions are not inconsistent with or specifically preempted by the federal regulations, contract, or requirements.

Read the exclusion as work-specific, not person-specific. In Follmer v. Duluth, Missabe & Iron Range Railway Co., 585 N.W.2d 87 (Minn. Ct. App. 1998), the court affirmed a DATWA judgment for an employee whose specific work was not federally covered, holding that “[b]ecause federal law and regulations do not preempt a state law which governs drug testing procedures for one in the position of respondent, and because appellant discharged respondent in violation of state law, we affirm.”

A second carve-out sits outside DATWA entirely. Under Minn. Stat. § 221.031, subd. 10, the state, a political subdivision, or any person required to comply with the alcohol and controlled substances testing requirements of 49 C.F.R. parts 219, 382, or 655 is exempt from sections 181.950 to 181.957 if the testing also complies with the procedures for transportation workplace drug and alcohol testing programs in 49 C.F.R. part 40. Laws 2025, ch. 20, § 194, an act “correcting erroneous, obsolete, and omitted text and references,” updated that federal part list, striking the references to parts 653 and 654 and substituting part 655.

The most common application is U.S. DOT testing of commercial driver’s license holders under 49 C.F.R. Part 382, which reaches employers and drivers who operate a commercial motor vehicle in commerce and are subject to the commercial driver’s license requirements of Part 383. That part preempts state law only where compliance with both is impossible or the state requirement obstructs a federal requirement, 49 C.F.R. § 382.109, and it otherwise leaves employer authority and driver rights on testing untouched, 49 C.F.R. § 382.111.

The federal rule itself requires the two programs to stay apart: “DOT tests must be completely separate from non-DOT tests in all respects,” and “[n]o one is permitted to conduct a DOT drug or alcohol test on an individual who is not a DOT-regulated employee, as defined by the DOT agency regulations.” 49 C.F.R. § 40.13(a), (h). Before each federal test you must tell the driver that Part 382 requires it, and no employer may falsely represent that a test is administered under that part. 49 C.F.R. § 382.113. Part 382 also imposes duties DATWA supplies nothing comparable to, including a pre-employment query and annual queries of the FMCSA Drug and Alcohol Clearinghouse. 49 C.F.R. § 382.701. Most multi-employee Minnesota employers with even one CDL driver run two parallel programs: a DOT-compliant program for the regulated drivers and a DATWA-compliant program for everyone else. Running the two together is how the separation requirement in 49 C.F.R. § 40.13(a) gets broken.

How a Collective Bargaining Agreement Interacts with DATWA

A union contract may bargain for testing protections that meet or exceed DATWA’s minimum standards, so long as the negotiated policy does not otherwise conflict with those minimums. Minn. Stat. § 181.955, subd. 1. A separate transitional savings clause preserves greater protections already provided under collective bargaining agreements in effect on the effective date of those sections, which Laws 1987, ch. 388, § 10 sets at September 1, 1987. Minn. Stat. § 181.955, subd. 2. For a contract negotiated after that date, tighter random-testing rules, longer cure periods, or last-chance frameworks are enforceable as contract terms, and whether they displace your own testing policy is a question of contract and labor law rather than of this statute.

Public employers face one more wrinkle. In Law Enforcement Labor Services, Inc. v. Sherburne County, 695 N.W.2d 630 (Minn. Ct. App. 2005), the court concluded that “designation of which positions are safety sensitive, and thus subject to the policy, is so interwoven with the establishment of the policy that to force the county to negotiate the issue of designation would be to force the county to negotiate the underlying policy,” treating both as inherent managerial rights outside mandatory bargaining, while holding that the county committed an unfair labor practice by refusing to negotiate the implementation areas the testing act does not cover.

The act carries one contract-based carve-out of its own. Minn. Stat. § 181.955, subd. 3 provides that sections 181.950 to 181.954 do not interfere with a testing program permitted under a contract between the employer and employees where the covered employees are professional athletes, subject to certification to the commissioner of labor and industry on request, and it creates no exemption from chapter 152 controlled-substance crimes.

Bottom Line for Minnesota Employers

DATWA is a checklist statute. The categories are narrow, the policy elements are mandatory, the laboratory standards are explicit, and the procedural rights after a positive result are non-negotiable. The most expensive mistakes are the most predictable ones: an out-of-state policy template missing the explanation and retest rights, a random program covering positions that are not actually safety-sensitive, a first-positive discharge without offering rehabilitation, and cannabis discipline built on a positive test alone.

Three of those mistakes violate the drug and alcohol testing act itself: the policy omission under Minn. Stat. § 181.952, subd. 1(5), the random testing under Minn. Stat. § 181.951, subd. 4, and the first-positive discharge under Minn. Stat. § 181.953, subd. 10(b). Each gives an employee or job applicant injured by the violation a civil action for damages under Minn. Stat. § 181.956, subd. 2. Attorney fees are not automatic: a court may add reasonable fees only if damages are awarded and it finds that the employer knowingly or recklessly violated the act. Cannabis discipline follows a different path. Minn. Stat. § 181.953, subd. 10a permits discipline after a confirmatory positive cannabis test for use, possession, or impairment at work, and discipline for lawful off-duty use is governed by Minn. Stat. § 181.938, subd. 2, subject to the exceptions in subdivision 3. The sole remedy, under subdivision 4, is an action for damages limited to lost wages and benefits, with a mandatory award of court costs and a reasonable attorney fee to the prevailing party, whether plaintiff or defendant.

On currency, the act is still codified at Minn. Stat. §§ 181.950 to 181.957, and no section in that range has been amended in substance since the 2024 oral fluid provisions took effect. Laws 2025, ch. 20, § 181, a technical corrections act, made one change to Minn. Stat. § 181.953, subd. 5a, correcting the cross-reference “18.957” to “181.957”; that section carries no effective-date clause, so it took effect August 1, 2025 under Minn. Stat. § 645.02.

Drug testing is one piece of a broader employer-policy framework that intersects with at-will termination rules, final-pay obligations when a positive test leads to discharge, and the written-policy discipline that also drives non-compete alternatives and other workplace-rules enforcement. If you are building or rebuilding a testing program after Minnesota’s cannabis amendments, the safest path is a clean rewrite against the current statute rather than a patch on a pre-2023 policy.

If you would like a second set of eyes on the specific facts of a planned termination, policy rewrite, or random-testing program, email [email protected].

For broader workplace-policy questions, see the employment law practice area overview, which connects DATWA compliance to the rest of the Minnesota employer toolkit, including the firm’s employment counseling work for closely held businesses.