Understanding DATWA: Minnesota’s Drug and Alcohol Testing in the Workplace Act

February 15th, 2019

PART ONE

Ten Things Minnesota Job Applicants Need To Know About Drug & Alcohol Testing Laws

You received a telephone call from a prospective employer, and they want to hire you! You are ecstatic – this is the dream job you’ve always wanted! The employer goes on to tell you that that the “offer of employment is contingent upon you passing a drug and alcohol test.”
You stop dead in your tracks…

…Am I required to submit to the test?
…What if my current medications impact my test results?
…What happens if I do not pass?
…What should I do?

Minnesota’s Drug and Alcohol Testing in the Workplace Act (also known as “DATWA”)

Minnesota’s Drug and Alcohol Testing in the Workplace Act regulates drug and alcohol testing for job applicants and employees. Minnesota employees should be familiar with their rights as a job applicant in pre-employment drug and alcohol testing under DATWA, as well as their rights as an employee after commencing employment.
As a job applicant, here are ten things you need to know about pre-employment drug and alcohol testing:

1. There must be a conditional offer of employment. An employer may require a job applicant to undergo a drug and alcohol test, but only after a conditional offer of employment has been made to the applicant. In other words, an employer cannot ask you to submit to a test, unless you have been also offered the position.

2. The same test is required for all applicants offered the position. If the employer requires that a job applicant undergo a drug test as a conditional offer of employment, the same test is required of all applicants conditionally offered the same position.

3. The employer must have a written drug and alcohol testing policy. An employer cannot request that a job applicant undergo testing unless the employer has a written drug and alcohol testing policy that contains the required information under Minnesota law. Each applicant must be given a copy of the policy before being tested, and the employer must provide the job applicant with an acknowledgment form to sign confirming that he or she has seen the testing policy. The employer must also post the testing policy in an appropriate and conspicuous workplace location.

4. You can disclose prescription medications. A job applicant has the opportunity, before and after the testing, to list over-the-counter or prescription medications or other explanations for a positive drug test.

5. Testing can only be done by a qualified facility. The testing must be done at a qualified laboratory as defined by law to conduct the testing. The employer must comply with regulations from the Minnesota Department of Health regarding the chain of custody and laboratory procedures. An employer cannot own or operate the testing facility.

6. You are entitled to a second test. If the applicant’s initial test result is positive, the applicant must be allowed to take a second test (i.e. confirmatory test), before an employment offer may be withdrawn. The applicant must also be given written notice of the right to explain the positive test, and the employer may request that the job applicant indicate any over-the-counter or prescription medication that the applicant has recently taken or other relevant information to explain the positive test.

7. A third test may also be conducted. If the initial test and confirmatory test are both positive, the applicant may, within 5 days of receiving the confirmatory test, request that a third test is conducted on the same testing sample at the applicant’s own expense. Within 3 days of receiving notice of the confirmatory test, the job applicant may again submit information to the employer to explain a positive confirmatory test, such as medication information.

8. The employer must pay for the test. An employer cannot require, or even request, that a job applicant pays for the cost of the initial or confirmatory tests. However, if the applicant tests positive for both the initial and confirmatory test, and requests that a third test is completed on the same sample, the employee is responsible for the cost of the third test.

9. You have a right to know the test results. Within 3 days of the employer receiving the test results, the employer must inform the job applicant in writing of the test results, as well as the employee’s rights under DATWA. A job applicant also has the right to request and receive a copy of the drug or alcohol test from the employer.

10. There are rules governing a withdrawn employment offer. If the job applicant fails both the initial test and the confirmatory test, the employer must inform the applicant of the reason for the withdrawn job offer within 10 days of the final decision not to hire. The employer cannot withdraw an offer based on an initial positive test alone that has not been verified by a confirmatory test.

What can I do if my employment rights are violated?

Many Minnesota employers implement a drug and alcohol testing policy, yet they oftentimes fail to comply with DATWA (or even know of its existence). While you may feel embarrassed for a positive test result, you should know your rights and your options for action.

If a Minnesota employer does not follow DATWA and violates your rights, you can bring an action against them for damages that you suffer. If you are successful in bringing an action and are awarded damages, the court may also award you reasonable attorney fees for your action, if the court finds that the employer knowingly or recklessly violated DATWA.

If you feel your drug and alcohol testing rights may have been violated, contact our employment law team today for a free consultation.

PART TWO

Know your rights: Eight reasons your employer could conduct drug and alcohol testing in your workplace

Minnesota’s Drug and Alcohol Testing in the Workplace Act (also known as “DATWA”) regulates drug and alcohol testing for job applicants and employees. Minnesota employees should be familiar with their rights as a job applicant in pre-employment drug and alcohol testing under DATWA, as well as their rights as an employee after commencing employment.

What employees should know about drug and alcohol testing:

DATWA protects current employees from arbitrary drug and alcohol testing during the course of their employment. Like job applicants, an employee has the right to both a first initial test and a confirmatory test, has the right to explain a positive test, has a right to receive the test results, and has the right to a third test (after a positive initial and confirmatory test) at the employee’s own expense.

As an employee, drug and alcohol testing may not be conducted unless the employee meets certain circumstances. For example, the employer has one of the following reasonable suspicions:

1. Under Influence. An employee is under the influence of drugs or alcohol.

2. Violated the Employer’s Policy. The employee has violated an employer’s policy prohibiting use, possession, sale, or transfer of drugs or alcohol at work or while operating a work vehicle, machinery, or equipment.

3. Personal Injury. The employee has sustained a personal injury or caused another employee to sustain a personal injury.

4. Work-Related Accident. Employee caused a work-related accident or was operating vehicles or machinery involved in a work-related accident.

5. After Treatment Program. If an employee is referred to a drug or alcohol treatment program by an employer, the employee may be tested for up to two years after completing the program.

6. Routine Physical Exam. An employer may require an employee to submit to a drug and alcohol test as part of a routine physical exam once per year. However, the employee must receive at least two weeks’ notice prior to the test.

7. Random Testing in Safety-Sensitive Position or Professional Athlete. An employer may
require an employee to test if the employee is in a safety-sensitive position. Professional athletes subject to a collective bargaining agreement may also be subject to random testing.

8. Federal Law or Contracts. In certain situations, if the employer is engaged in contracts with the federal government or if certain federal laws or regulations apply to the business, an employee may be subject to alcohol and drug testing under federal law.

As an employee, when can I be terminated under DATWA?

A first positive drug test is not necessarily the end of your employment. An employer may not discharge or discipline an employee after a positive initial and confirmatory test, unless the employer first offers the employee the opportunity to go into a treatment or rehabilitation program. If the employee fails or refuses to complete the treatment program, then the employee may be disciplined or terminated. If, after treatment or rehab, the employee fails a second drug test, the employee is then subject to discipline or termination. If an employer decides to terminate, demote, or impose another adverse employment action on an employee, the employer must notify the employee of the decision with ten days.

What can I do if my rights are violated?

If you feel your drug and alcohol testing rights may have been violated, contact our employment law team today for a free consultation.