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Drug testing
Minnesota’s drug testing law includes significant restrictions on the types of testing that may be conducted, and places specific requirements on testing procedures and components of the program. Only employees in safety-sensitive positions may be tested for cannabis. An employer may not discharge an employee solely on the basis of a first-time positive drug or alcohol test. The opportunity for rehabilitation must be offered.
Testing must be done pursuant to a written drug and alcohol testing policy that contains the minimum information required by state statute. This includes:
The policy must include information about reasonable suspicion and cannabis testing, if those tests are conducted.
Before testing, an employer must provide an employee or job applicant with a form that can be used to acknowledge that the employee or job applicant has seen the employer's drug and alcohol policy. An employer must pay for the test.
Testing restrictions vary depending on when the test is given and an employee's job duties:
Pre-employment: Pre-employment testing is allowed, except for cannabis. A cannabis test is not allowed as a condition of employment unless it is otherwise required by state or federal law or the position qualifies for an exception allowed under the law.
Employers may test applicants for cannabis if they will work in these positions:
Reasonable suspicion: A reasonable suspicion test for the use of drugs (including cannabis) or alcohol is allowed if the employer has a reasonable suspicion that the employee:
Post-accident: Post-accident testing is not mentioned in the state statutes, but reasonable suspicion testing is allowed if an employee:
Random testing: Only safety-sensitive employees may be tested randomly for drugs (including cannabis) or alcohol. 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. Professional athletes may be randomly tested if the professional athlete is subject to a collective bargaining agreement permitting random testing.
Follow-up testing: Unannounced tests for drugs (including cannabis) and alcohol can be given for a period of up to two years following completion of a treatment program.
Testing must be conducted at an accredited or certified laboratory. A drug testing laboratory must be certified by the National Institute on Drug Abuse, accredited by the College of American Pathologists under the forensic urine drug testing laboratory program, or licensed to test for drugs by the state of New York, Department of Health, under Public Health Law, article 5, title V, and rules adopted under that law. An alcohol testing laboratory must be licensed to test for drugs and alcohol by the state of New York, Department of Health, under Public Health Law, article 5, title V, and the rules adopted under that law or accredited by the College of American Pathologists in the laboratory accreditation program.
The employer is responsible for following chain of custody procedures:
The laboratory must conduct a confirmatory test on all samples that produced a positive test result on an initial screening test. A laboratory discloses to the employer a written test result report for each sample tested within three working days after a negative test result on an initial screening test or, when the initial screening test produced a positive test result, within three working days after a confirmatory test. A test report must indicate the drugs, alcohol, or drug or alcohol metabolites, or cannabis or cannabis metabolites tested for and whether the test produced negative or positive test results. A laboratory shall retain and properly store for at least six months all samples that produced a positive test result.
An employee or job applicant must be informed of the test result within three working days after the employer receives the test result from the testing laboratory. If a confirmatory test is positive, a confirmatory retest of the original sample may be requested by the employee or job applicant within five working days. The employee or applicant must receive notice of their right to a confirmatory retest. The employee or job applicant pays for the retest. If a medical marijuana patient tests positive on a workplace drug test, the employee may present a registry verification or verification of enrollment in a tribal medical marijuana cannabis program as part of the explanation for a positive test.
An employer may not discharge, discipline, discriminate against, or require rehabilitation of an employee on the basis of a positive drug test that has not been verified by a confirmatory test. An employer may not discharge an employee if this is the first positive test result for the employee unless the employee has refused to participate in a counseling or rehabilitation program offered by the employer, or has failed to successfully complete the program.
Test results are private and may not be disclosed by an employer to another employer, individual, or government agency without the written consent of the employee or job applicant tested unless required under an arbitration proceeding, another applicable law or judicial proceeding, or for the purpose of evaluation or treatment of the employee.
Unemployment compensation
Minnesota’s unemployment compensation law may deny benefits to an employee who has been separated from employment due to a chemical dependency which has been professionally diagnosed, or who is participating in a treatment program, where treatment has failed to control the chemical dependency. Such action indicates that an employee has not made a reasonable effort to retain employment.
Workers’ compensation
Minnesota’s workers’ compensation law may deny compensation benefits if the employee’s intoxication is the proximate cause of the injury. The employer has the burden of proof.
Contacts
Minnesota Department of Labor and Industry
Regulations
Drug testing
Minnesota Statute Chapter 181, §181.950 to 181.957
Unemployment compensation
Minnesota Statute Chapter 268, §268.095
Workers’ compensation
Minnesota Statute Chapter 176, §176.021
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Contacts
Drug testing rules
U.S. Department of Transportation
Regulations
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Guidance document