Drug testing - Minnesota

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 employees or job applicants subject to testing under the policy;

• The circumstances under which drug or alcohol testing may be requested or required;
• The right of an employee or job applicant to refuse to undergo drug and alcohol testing and the consequences of refusal;
• 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;
• 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.

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:

• Safety sensitive positions (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);
• Peace officers;
• Firefighters;
• Positions requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to children, vulnerable adults, patients receiving health care services from a provider for 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;
• Any other position requiring drug or alcohol testing under state or federal law.

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:

• Is under the influence of drugs or alcohol;
• Has violated the employer’s written work rules prohibiting the use, possession, sale, or transfer of drugs or alcohol, cannabis flower or products, lower-potency hemp edibles, or hemp-derived consumer products at work, on the employer’s premises, or while operating the employer’s vehicle, machinery or equipment.

Post-accident: Post-accident testing is not mentioned in the state statutes, but reasonable suspicion testing is allowed if an employee:

• Has sustained a personal injury,
• Has caused an employee to sustain a personal injury,
• Has caused a work-related accident, or
• Was operating or was helping to operate machinery, equipment, or vehicles involved in a work-related accident.

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:

• Possession of a sample must be traceable to the employee from whom the sample is collected, from the time the sample is collected through the time the sample is delivered to the laboratory;
• The sample must always be in the possession of, must always be in view of, or must be placed in a secured area by a person authorized to handle the sample;
• A sample must be accompanied by a written chain-of-custody record; and
• Individuals relinquishing or accepting possession of the sample must record the time the possession of the sample was transferred and must sign and date the chain-of-custody record at the time of transfer.

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.