Employee Drug Testing Part II: Policy Requirements

 

Last post we began discussing the complexities of the laws governing employee drug testing in Minnesota.  We are addressing drug testing issues in three segments:

 

Part II:  The Policies and Procedures Your Company Must Follow

 

An employer cannot legally administer a drug or alcohol test to an employee or independent contractor unless the employer has enacted a drug testing policy that complies with Sections 181.950 through 181.957 of the Minnesota Statutes.  So what must your company’s drug and alcohol policy contain?  While not an exhaustive list, here is a checklist to get you started.

 

Your company’s policy should explain:

  • which employees or job applicants are subject to testing;
  • the circumstances under which drug or alcohol testing may be requested or required;
  • an explanation of the right of an employee or job applicant to refuse to undergo testing and the consequences of such refusal;
  • notice of the 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;
  • 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; and
  • any other appeal procedures available.

After adopting a drug and alcohol policy, your company must follow specific procedures before actually administering any tests.  First, the employer must provide written notice of its policy to all affected employees.  It must also give written notice of the policy to any new employee upon hiring him/her, and to any job applicant if a job offer is made to the applicant contingent on the passage of a drug and alcohol test.

Second, the employer must post notice in an appropriate and conspicuous location on the employer’s premises that (1) a drug and alcohol testing policy has been adopted, and (2) copies of the policy are available for review during regular business hours in the employer’s human resources department or other suitable location.

Third, before requesting an employee or applicant to undergo a drug or alcohol test, the employer must give the employee or applicant an acknowledgement form for the employee or applicant to sign, confirming that he or she has read the drug testing policy.

Conclusion

An employer’s drug and alcohol testing policy must explicitly outline the company’s testing procedures and the employees’ rights. Employees must receive notice the policy has been adopted and must have the opportunity to review the policy.  Finally, before undergoing any test, the employees should sign an acknowledgement form.

Part III of the Employee Drug Testing series will be published next week.  Please check back then for more details on what an employer should and should not do when an employee tests positive.  To receive an email when Part III 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.