Q. Last week, one of our employees drove a piece of equipment into a shelving unit. The employee caused substantial damage to the equipment and the products on the shelves. He could have seriously injured a co-worker. The employee’s supervisor reported that the employee’s eyes were glassy and bloodshot. Can we require the employee to submit to a drug test? — S.S., White Bear Lake
A. Not unless you have a drug testing policy that complies with the Minnesota Drug and Alcohol Testing in the Workplace Act.
This law requires employers to have a written testing policy in place that, at a minimum, identifies the following: the employees and applicants who are subject to testing, the circumstances under which testing may be required, the right to refuse to undergo testing and the consequences of refusal, the disciplinary action that may be taken based upon a positive result, the right to explain a positive result or to pay for a retest and any other appeal procedures.
There are limited circumstances in which a Minnesota employer may require an employee to undergo drug or alcohol testing. One such circumstance exists when an employer has “reasonable suspicion” that the employee is under the influence of drugs or alcohol. Reasonable suspicion can exist when an employee was involved in a work-related accident. Based upon the circumstances you described, the accident that this employee was involved in would be a basis for reasonable-suspicion testing.
Under Minnesota law employers may not discharge an employee who tests positive for the first time. You would not want to require this employee to undergo testing if your intent is to support a termination decision. If he is an at-will employee, you have the ability to terminate for any lawful reason, including the fact that he caused the workplace accident. Requiring a drug test may only limit your options.
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