Employee Drug Testing

 

Minnesota law protects employees from unfair drug and alcohol testing, and therefore employers are only allowed to test employees and independent contractors for drugs in certain circumstances.  In addition, the law protects employees with a first-time positive test result and prevents employers from automatically terminating them.  Because the drug testing laws are somewhat complex, we’ll be discussing them in three segments:

Part I:  When to Administer Drug Tests

Part II:  What Policies and Procedures You Must Follow

Part III:  How to React to a Positive Test Result

 

Part I:  When to Admininister Drug Tests

 

Employers may administer drug tests in five situations:  (1) job applicants, (2) routine physical examinations, (3) random testing, (4) reasonable suspicion testing, and (5) treatment program testing.  All five types of tests require the employer to have a drug testing policy in effect that complies with sections 181.950 through 181.957 of the Minnesota Statutes.  More information on the policy requirements will be discussed in Part II.  In addition, drug tests cannot be administered on an arbitrary or capricious basis.

1)  Job Applicant Testing

Employers may require a drug and alcohol test be taken by a job applicant as a condition of employment, provided that a job offer has been made to the applicant and that a similar test is required of all job applicants offered employment for that position.  It is essential that all applicants for a position who receive conditional offers of employment be treated the same.  Employers may not discriminate against certain applicants by administering a test selectively.

 

2)  Routine Physical Examination Testing

Employers may also require employees to take a drug and/or alcohol test as part of a routine physical examination. However, the physical examination can be given no more than once per year, and the employee must be given at least two weeks’ advance written notice of the exam. Like the testing above, the routine physical examinations cannot be applied in an arbitrary or discriminatory manner.

 

3)  Random Testing

An employer may administer drug tests on a random basis only for employees in safety-related positions. The employer must take care that the tests are actually administered randomly.

 

4)  Reasonable Suspicion Testing

Minnesota Statute 181.951, subd. 5 states that an employer may give a drug test if the employer has reasonable suspicion that an employee:

a) is under the influence of drugs or alcohol;

b) has violated the employer’s written drugs and alcohol policy rules prohibiting 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;

c) has sustained a personal injury, or has caused another employee to sustain a personal injury; or

d) has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.

“Reasonable suspicion” is defined by the statute as “a basis for forming a belief based on specific facts and rational inferences drawn from those facts.” I agree that definition is not particularly helpful. However, if you are relying on reports of drug use from other employees, I would recommend trying to confirm these reports with your own observations before requesting a drug test. That way you can avoid testing employees unnecessarily in the case where one employee falsely reports another out of some sort of malicious intent.

 

5)  Treatment Program Testing

If an employee has entered a drug or alcohol treatment program at the employer’s direction after a previous positive drug test, the employer may ask the employee to undergo an additional drug test during the treatment program.  The employer may continue to request such tests for up to two years after completion of the treatment program.  No notice is required for these tests.

 

Conclusion

Employers may not conduct drug tests at will.  In order to administer any drug tests to employees, the employer must have a drug testing policy in effect that complies with state law, and the employer must follow the statutory notice and test procedures described in Minnesota Statutes 181.950 through 181.957.  An employer may not perform any drug tests for situations that do not fall within any of the five types of tests described above.

Part II of the Employee Drug Testing series will be published next week.  Please check back then for more details on the policies and procedures employers must follow.  To receive an email when Part II has been posted, simply submit your email in the “Follow ES Swanson Law” form at the bottom of the page.

If you have any questions in the meantime, please contact ES Swanson Law.