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.
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.
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:
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.
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: