Employees Take a Stand – Minnesota Drug and Alcohol Testing in the Workplace

July 22nd, 2014

We all know that it is best not to work under the influence of drugs or alcohol. Employees should avoid ever being in a position to have a positive drug or alcohol test result in the workplace. With that in mind, we must also acknowledge that there are many prescription medications that are necessary for some people to function in their daily lives, and some of these will render a positive result on a drug test. There are also disabilities and impairments that might outwardly manifest in such a way that somebody might mistake that person as being under the influence of drugs or alcohol and then might ask that person to take a drug test. Let us also not forget that chemical dependency is a serious condition with serious consequences and many people suffering from it are discriminated against in the workplace. Then there are those that just make a simple one-time mistake and don’t deserve to have their lives ruined (i.e., their jobs terminated) because of this isolated mistake.

Many Minnesotans are going out and enjoying every minute of our short warm-weather season. For some that means cabins, lakes, fishing and the great outdoors, for others that means late nights with friends and family. With such revelry, there are sometimes accompanying poor decisions. Sometimes, despite our best intentions these activities get out of hand and the next day at work you might not be at your best. When that happens you might wonder what your employer can do to find out what you have been doing in your spare time, and what they can do with the information they obtain. It is useful to be aware of the laws that are in place to ensure that an employer doesn’t use drug testing as a way to discriminate or retaliate against employees. It’s important to know what your employer can ask of you and what your rights are regarding drug and alcohol testing in the workplace.

Who can be tested and under what circumstances:

Your employer can’t require you to take a drug or alcohol test on a whim. An employer can only require you to submit to drug and alcohol testing in a way that adheres to their written drug and alcohol policy. The policy has to tell you what employees are subject to testing, the circumstances where testing will be required, the right to refuse the test and the consequences of a refusal, what discipline comes with a positive result, the right to explain the positive result or request and pay for a retest, and whatever appeals processes are available. The testing also has to be done at a qualified facility. If you happen to be a professional athlete or are employed in a safety-sensitive position, you can be required to submit to random drug testing. Job applicants may also be tested after a job offer is given, but only if all job applicants for that position are tested. Routine testing can be given by an employer as long as two weeks’ written notice is given and the tests are given no more than once a year.

Despite these restrictions, your employer has pretty wide discretion to require testing if they have a reasonable suspicion that you are under the influence, that you violated the company drug or alcohol policy, that you have caused or suffered an injury, or if you caused a work related accident. If you crash a forklift at work or if you slip and fall and get hurt, your employer is going to want to know that you were not under the influence of drugs or alcohol. Don’t take this personally or let your pride get hurt when they ask you for a urine sample. And if you have been referred to a chemical dependency treatment program by your employer, they can require you to take a drug and alcohol test without prior notice, during the treatment and for up to two years after!

What your employer cannot do and what rights you have:

Now that we have listed all the things an employer can ask you to do, let’s talk about limits placed on your employer and the rights you have.

• Employers can’t use their own labs to conduct the actual testing.
• They have to show you the drug and alcohol policy and give you a form where you acknowledge that you have seen it.
• If you test positive, they must give you written notice of the right to explain a positive test result, and give you three work days to share any relevant information that might explain a positive test result.
• If you want to pay for it, you can also request a retest of the original sample.
• An employer has to give you the test results within three work days of receiving them.
• You cannot be disciplined or sent to treatment based on a positive “initial screening test” result that hasn’t been verified by a confirmatory test (a statutorily defined heightened testing method).

Protection for a first time positive test result:

The first time your employer receives a confirmed positive test result from you, they can’t fire you without first giving you the opportunity to participate in a counseling or rehabilitation program (on your own dime if your insurance doesn’t cover it). If you don’t finish the program or if you refuse to participate in it, then an employer may terminate you immediately.

What you can do if your rights are violated:

If your employer doesn’t follow these laws or violates your rights, you can bring an action against them for the damages that you suffer. If you are successful in bringing an action and are awarded your damages, your employer must also pay for your reasonable attorneys’ fees.  A positive drug test may make you feel vulnerable and embarrassed, but it is important to know your rights so you can act accordingly.