If an employer or a prospective employer in Minnesota has asked you to take a drug test, you’ll want to know your legal rights. Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, this area is regulated by state and local laws.
Minnesota allows employers to require applicants and employees to take drug tests, but only in certain circumstances. Minnesota law protects employees who test positive for the first time from termination, if the employee successfully completes a rehabilitation program.
Drug Testing for Minnesota Applicants
Employers may require applicants to take drug tests, but only after they applicant has received a job offer and a written notice of the testing policy. An employer may test an applicant only if it tests all applicants for the same position.
If an applicant tests positive, the applicant has three days to explain the results and five days to request a confirmatory retest. If the employer has already made a job offer contingent on the applicant passing a drug test, the employer may not rescind the offer based on an initial positive test until it verifies the result in a confirmatory test.
Drug Testing for Minnesota Employees
Minnesota employers are not required to drug test employees, and they may not test on an arbitrary or capricious basis. Employers may require testing only according to a written testing policy, which must set forth the consequences of testing positive or refusing to take a test. The policy must be posted.
Employees may be required to take a drug test if the employer has a reasonable suspicion that:
- the employee is under the influence of drugs or alcohol
- the employee has violated the employer’s drug policy
- the employee has been involved in an accident, or
- the employee has sustained or caused another employee to sustain a personal injury.
An employer may also require an employee to take a drug test as part of a routine physical exam taking place no more often than once a year, as long as the employee has at least two weeks’ notice. An employer may test an employee who has been referred by the employer to, or is participating in, a chemical dependency treatment program. These employees may be tested without notice during treatment and for two years afterward.
Random drug tests are permitted only for employees in safety-sensitive positions and professional athletes.
If an employee tests positive, the employee may request a confirmatory retest within five days. An employer may not discharge an employee for a first-time positive test without offering counseling or rehabilitation. However, an employee who refuses treatment or does not complete the program successfully may be discharged.
Legal Claims Arising From Drug Testing
Even though Minnesota law allows employers to drug test in some circumstances, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used. Here are some examples:
- Violation of state laws and procedures. Although an employer has the legal right to test, it must follow the state’s requirements. For example, a Minnesota employee might have a valid legal claim for being fired after a first-time positive drug test, if the employer never offered counseling or rehabilitation services.
- Disability discrimination. An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable.
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that is allowed or required to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes a false positive test result, if the employer knows or should know that the result is in error.