Q. I have been asked to screen applicants for several positions. Can we lawfully ask selected candidates to submit to physical exams or drug testing?
A. Minnesota law prohibits an employer from asking a candidate to submit to a physical exam or drug testing unless the applicant has first been given a conditional offer of employment. Even with a conditional job offer, you must follow certain legal requirements.
With regard to physical examinations, the Minnesota Human Rights Act permits a pre-employment physical examination only if it:
- Tests for essential job-related abilities
- The examination is required of all persons conditionally offered employment for the same position
- All information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files, and is treated as a confidential medical record
Consequently, unless you have made an offer of employment contingent upon the applicant passing the medical examination, and your company requires all applicants for the same position to pass the same examination before commencing employment, you cannot ask or require an applicant to undergo a physical examination.
If you implement a pre-employment physical exam, you should work with your legal counsel and the medical examiner to ensure that the exam is tailored to the essential functions of the specific position.
Minnesota has set forth specific requirements and procedures for applicant and employee drug and alcohol testing. You may not ask an applicant to undergo pre-employment drug or alcohol testing unless a contingent offer of employment has been made and the testing is required of all applicants conditionally offered the same position.
In order to undertake any drug testing of applicants or employees, you must have a written policy that complies with Minnesota’s drug and alcohol testing statute (Minn. Stat. § 181.950, et seq). The policy must identify whom it covers, when drug testing may occur, employee and applicant rights to refuse and the consequences of refusing, potential disciplinary action, employee and applicant rights to explain or seek a confirmatory retest, and any appeal procedures.
If your company wishes to implement pre-employment drug testing, you need to provide a written copy of the policy to the applicant and receive a signed acknowledgment of receipt. You also need to provide the applicant with written notice of his or her rights to submit information that could explain a positive test result, to obtain a copy of the test result, to seek a confirmatory retest and the applicable time limits.
If you decide to pursue implementing drug and alcohol testing for applicants or employees, you should consult with an attorney to ensure that the testing protocol and procedures comply with Minnesota law.