The state’s Drug and Alcohol Testing in the Workplace Act (DATWA) limits employers’ ability to test employees and independent contractors for illegal drugs and alcohol. (The law does not apply to businesses such as trucking firms that must follow federal regulations for workplace drug testing.)
While DATWA does not require employers to perform drug testing, it governs the process if employers elect to do so. Those employers must have a written drug and alcohol testing policy covering at least these points:
- The employees or job applicants subject to testing under the policy
- The circumstances under which testing may occur
- The employee/applicant’s right to refuse testing and the consequences of refusal
- Any disciplinary action that may occur after a confirmed positive test
- The employee’s right to explain the positive test and pay for a confirmatory retest
- Any other procedures available.
The law requires employers to have an accredited laboratory conduct all drug testing. (Even accredited labs must outsource testing of their own employees to another accredited lab.) The employer and testing laboratory must be able to provide a secure chain of custody from the time of collection of employees’ samples to the actual tests.
You may drug-test job applicants only after you have made a conditional job offer. In other words, you have promised to hire the individual as long as he or she passes the drug test.
Make sure you are consistent in testing job applicants: Predetermine which job classifications require drug testing, and test only applicants for those positions.
If an applicant fails the test, you must tell the person the reason for failing the test. DATWA requires employers to have all positive tests retested or have a “confirmatory test” run to verify the positive results.
You may not make employment decisions on unconfirmed test results. The law specifically bars employers from testing on an arbitrary or capricious basis.
Testing current employees
You may test current employees as part of routine physical examinations but no more than once a year. Employees must be given two weeks’ notice of drug testing.
Also, you may perform random drug testing only if the employee is working in a “safety sensitive” position or is a professional athlete and the testing is part of a collective bargaining agreement.
Employers may also test employees in these situations:
- They are reasonably suspected of being under the influence of drugs or alcohol.
- They have violated the company’s written rules prohibiting the use, possession, sale or transfer of drugs in the workplace.
- They have sustained a personal injury.
- They have caused a workplace accident.
If you’ve referred employees for drug or alcohol counseling or treatment, you may randomly test them without prior notice during their treatment program and for the first two years thereafter.
Caution: DATWA prohibits employers from revealing positive drug test results to other employers requesting references. Similarly, you may not turn test results over to law enforcement personnel. If you fail to keep positive drug tests confidential, the employee or applicant may sue you to collect damages and attorneys’ fees.
Legal off-duty behavior
Minnesota is among 30 states with a “lifestyle discrimination” law that prohibits employers from taking action against an employee for off-duty use of “lawful consumable products.”
An employer may not discipline current employees or refuse to hire job applicants because of their off-duty legal use of products such as alcohol or tobacco unless the employer can demonstrate the ban relates to a job requirement or is necessary to avoid a real or perceived conflict of interest.
In 2007, Minnesota passed the Freedom to Breathe Act, which prohibits smoking in virtually all indoor workplaces. The law does not ban smoking outdoors or impose any smoke-free outdoor areas around business entrances.
The law requires employers to:
- Post “No Smoking” signs.
- Ask persons who smoke in prohibited areas to refrain from smoking and to leave if they refuse to do so.
- Use lawful methods consistent with handling disorderly persons or trespassers for any person who refuses to comply after being asked to leave the premises.
- Refrain from providing ashtrays and other smoking equipment.
- Refuse to serve noncompliant persons.
For further information on the Freedom to Breathe Act, go to www.health.state.mn.us/divs/eh/indoorair/mciaa/ftb/docs/ftbfactsheet.pdf.
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