Q. A couple of weeks ago, an employee came into work smelling like alcohol. His supervisor later reported that day that the employee “acted drunk” in a staff meeting. Yesterday, one of the same employee’s co-workers indicated that the employee came back from lunch “smelling like marijuana.” Can these reports justify requiring the employee to undergo a drug or alcohol test?
A. In Minnesota, a state statute governs drug and alcohol testing of employees in the workplace and explains the what, when, where and under what circumstances an employer can test an employee for alcohol or drugs.
As an initial matter, before an employer can ask an employee to submit to testing, it must have implemented a policy that complies with Minnesota law, and the individual must have been provided with a copy of the policy.
The policy must include the following information, at a minimum:
- Who is subject to testing under the policy
- When drug or alcohol testing may be requested or required
- The right to refuse to submit to drug and alcohol testing and the consequences of refusing
- Disciplinary or other adverse personnel action that may occur because of a confirmation test verifying a positive result on an initial screening test
- The right of an employee or job applicant to explain a positive test result on a confirmation test or request and pay for a retest
- Any other appeal procedures available.
If your company has adopted a testing policy that provides for “reasonable suspicion” testing, the situation you describe would likely constitute grounds for such testing. Reasonable suspicion means there is a “basis for forming a belief based on specific facts and rational inferences drawn from those facts.”
This may mean an observation of behavior and an odor of drugs or alcohol on an employee’s breath or clothing.