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Drug testing operates in three primary areas that touch employment:◦ Federally mandated testing involving transportation
workers (commonly called DOT testing); ◦ Outside of employment testing as part of a law
enforcement function (i.e. DUI); and ◦ State permitted testing involving employees not
subject to DOT testing.
The presentation today focuses on the state permitted testing – commonly called Non-DOT Drug Testing.
Our focus today will be primarily in four areas:◦ Non-DOT Drug Testing Basics◦ Do’s and Don’ts◦ What to do with a positive test◦ Sample polices
Non – DOT Drug (and alcohol) testing differs from DOT testing because it is permissive. ◦ You do have to have a DOT drug testing program if
you have covered positions.◦ You do not have to have a Non-DOT drug testing
program.
The Non-DOT testing laws may be found starting at Minn. Stat. Sec. 181.950.◦ Drug (and alcohol testing) can only be done if there
is a written policy in place that complies with the requirements outlined in Minn. Stat. Sec. 181.952. More on this requirement later.
◦ Types of testing include: pre-employment reasonable suspicion treatment program routine physical examination random testing if the individual is in a safety sensitive
position
Pre-employment testing is permitted if:◦ the individual has received a job offer◦ the same test is requested or required of all job
applicants conditionally offered employment for that position
Routine Physical Examination Testing is permitted if:◦ It is requested or required no more than once
annually; and◦ the employee has been given at least 2 weeks
written notice that a drug test may be requested or required as part of the physical examination.
• Random testing is permitted if:– The employees are employed in a safety sensitive
position (or are professional athletes)– Safety sensitive is a job, including any supervisory
or management position in which an impairment caused by drug or alcohol usage would threaten the health or safety of any person.
– Random means a selection mechanism resulting in an equal probability of selection in a group and the employer has no discretion to waive selection of any employee.
• Reasonable suspicion testing is permitted if:– There is reasonable suspicion based on facts and
rational inferences drawn from those facts that the employee:
– is under the influence of drugs or alcohol;– Sustained a personal injury or has caused another
employee to sustain a personal injury– Has caused a work related accident or was
operating or helping to operate machinery, equipment, or vehicles involved in a work – related accident.
• Reasonable suspicion testing is also permitted if the employee:• Has violated the employer’s written work rules
prohibiting the use, possession, sale or transfer of drugs or alcohol while– the employee is working– the employee is on the employer’s premises – The employee is operating the employer’s vehicle,
machinery or equipment.• This is all subject to the provision that said written
work rules are in the employer’s written drug and alcohol testing policy.
Treatment program testing is permitted if:◦ The employee has been referred by the employer
for CD treatment or evaluation or is participating in a CD treatment program under an employee benefit plan.◦ Such testing is without prior notice during the
evaluation or treatment period and up to 2 years following completion of the treatment program.
Drug testing looks for controlled substances.◦ A controlled substance is specifically defined at
Minn. Stat. Sec. 152.01, Subd. 4.◦ A controlled substance is a drug, substance, or
immediate precursor listed in five schedules outlined in statute. If you like to practice pronouncing impossible things
or want to keep your spelling bees short, go to the schedules at Minn. Stat. Sec. 152.02.
Controlled substances do not include distilled spirits, wine, malt beverages, intoxicating liquors or tobacco. ◦ Well who cares, except for tobacco, wouldn’t that
be alcohol testing anyway?◦ Note that just because you can drink it, it may still
be included as a controlled substance. I only include this because I like to say Purple Drank.
• This is always a good reminder that you can’t prohibit use of lawful consumables. – Employers may not take action against an employee
or applicant if the individual uses or enjoys lawful consumable products off premises and during nonworking hours. Minn. Stat. Sec. 181.938.
– This includes food, alcoholic or nonalcoholic beverages and tobacco.
– This has an exception for a reasonably related bona fide occupational requirement.
With drug derivatives getting developed so fast, how can anyone keep up to prohibit them? ◦ The five schedules attempt to include not only the
known drugs but also the derivatives. ◦ The statute listing the prohibited substances is a
remarkable piece of drafting that attempts to cover known and yet to be developed substances.
The good news is that the testing labs, rather than the employer, know what to look for in a test.
In summary on the drugs tested for:◦ Do rely on the testing lab to figure out what to test
for and they will let you know.◦ Do not do your own “research” – the Last Place on
Earth is closed anyway.
• There needs to be a written policy meeting certain minimum information.
• You can pay attention to the presentation and create one yourself because you make your own clothes too
• You can not pay attention and: – Swipe one from a colleague who seems smart– Find a model policy on Google and hope it works.– Look on the back page of this presentation.
The written policy must provide information on:◦ Which employees or job applicants are subject to
testing under the policy◦ The circumstances when drug (or alcohol) testing
may be requested or required◦ The right of an employee or applicant to refuse the
testing and consequences of refusal
◦ Any disciplinary or other adverse personnel action that may be taken based on a confirmatory test verifying a positive test result on an initial screening test.
◦ The right of an employee or applicant to explain a positive test result on a confirmatory test or request and pay for a confirmatory retest
◦ Any other appeal procedures available.
Notice. The employer must give written notice of its drug (and alcohol) testing policy:◦ To all affected employees upon adoption of the
policy◦ To a previously non-affected employee when they
move into an affected position◦ To a job applicant upon hire and before any testing
of the applicant if the job offer is made contingent on the applicant passing the test.
Posting. The employer also has to post notice that it has adopted a drug (and alcohol if applicable) testing policy◦ It must be posted in an appropriate and
conspicuous location on the employer’s premises.◦ It must state that copies of the policy are available
for inspection during regular business hours, by its employees or job applicants in the employer’s personnel office or other suitable locations.
• In summary:– Do have a written policy that meets the statutory
requirements if you want to drug test.– Do keep copies of the written policy (or be able to
print them out if you are paperless)– Do not rely on a policy such as your Drug Free
Workplace Act Policy to test. – Do not replace your personnel office with the cloud
unless you have “other suitable locations.” to post the policy notices
• THINGS YOU SHOULD DO IN DRUG TESTING– Put together a policy if you want to test.
• Decide on whether you want to do pre-employment, reasonable suspicion, treatment program, routine physical examination and/or random testing.
– Pay attention to what is a drug test. – A drug test is an analysis of a body component sample by a
permitted lab for the purpose of measuring the presence or absence of drugs, alcohol, or their metabolites in the sample tested.
– Simple observations are not a drug test. – “Field testing” commonly performed by law enforcement that
does not analyze a body component sample is likely not covered. Note use of a measurement device would be a drug test.
The statute specifically requires an employer who is going to drug test to use the services of a licensed, accredited or certified laboratory.
The requirements for these laboratories is set out in Minn. Stat. Sec. 181.953.
An employer may not conduct drug or alcohol testing of its own employees and job applicants.◦ This is true of an employer owned and operated
testing laboratory. ◦ Sorry helpful Sheriff’s Office, you can’t do it.
Employers have to pay for these tests.
• THINGS YOU SHOULD NOT DO IN DRUG TESTING– Don’t test without an approved drug testing policy. – Don’t do your own testing.
• Only specifically licensed, accredited or certified laboratories may test. Minn. Stat. Sec. 181.953, Subd. 1.
• Employers may not conduct drug or alcohol testing of its own employees and job applications even if they have their own testing lab.
The employer must establish very specific chain of custody procedures if it is involved in any way with possession of a sample.
Before testing, the employer must give the employee or job applicant a form on which to acknowledge that the employee or job applicant has seen the employer’s drug (and alcohol if applicable) policy.
The testing laboratory will perform an initial screening test:◦ A negative test is reported to the employer.◦ A positive test will result in the lab doing a
“confirmatory test.”
The lab will disclose to the employer a written test result report for each sample tested.◦ This will be within 3 working days after a negative
test result on an initial screening test.◦ This will be within 3 working days of the
confirmatory test result of the initial screening test was positive.
◦ This written test result will indicate the drugs tested and whether the test was positive or negative.◦ The lab keeps all positive test result samples for at
least 6 months.
• The employer must notify an individual who has a negative test result on an initial screening test or of a negative or positive test result on a confirmatory test.– This notice must take place within 3 working days
after receipt of the test result. – The employer must notify the employee or job
applicant that they have a right to request and receive a copy of the test result report from the employer.
Minn. Stat. Sec. 181.953 outlines the limitations on employee discharge, discipline or discrimination applicable to a positive test.
• If an employee or job applicant tests positive for drug use, the employee must be given written notice of the right to explain the positive test. Minn. Stat. Sec. 181.953, Subd. 6. The employer may request that the employee or job
applicant indicate any over-the counter or prescription mediation that the individual is currently taking or has recently taken.
The employer may request any other information relevant to the reliability of, or explanation for, a positive test result.
Within three (3) working days after notice of a positive test result, the employee or job applicant may:◦ submit information to the employer, in addition to
any information already submitted under the last slide, to explain that result; or ◦ Request a confirmatory retest of the original sample
at the employee’s or job applicant’s own expense.
• Confirmatory retest– The employee or job applicant has to request a
confirmatory retest • in writing• Within 5 working days after notice of the confirmatory
test result– The employer, within 3 working days after receipt
of the request from the employee or job applicant, notify the original testing lab of such request.
• The original lab will then conduct the confirmatory test or transfer the sample to another licensed laboratory to conduct the confirmatory retest.
• If the confirmatory retest does not confirm the original positive test result, no adverse personnel action on the origincal confirmatory test may be taken against the employee or job applicant.
• Do’s and don’ts– Do process a negative result by notifying the
individual of the result, their ability to get the test report.
– Do utilize the form to obtain use and explanatory information from an individual on a positive drug test result.
– Do not light your hair on fire and fire somebody before running through the notice and opportunity for confirmatory retest process.
• For job applicants:– The employer may not withdraw the job offer based
on:• A positive initial screening test result that has not
been verified by a confirmatory test.• A negative confirmatory retest.
– The employer may withdraw a contingent job offer on a positive confirmatory test that has not been overturned by a confirmatory retest.
– The individual has to be notified of the reasons for the action.
For employees◦ The employer may not discharge, discipline,
discriminate against, or request or require rehabilitation of an employee on the basis of: A positive test result from an initial screening test that
has not been verified by a confirmatory test. A negative confirmatory retest.
• Most significantly, the employer may not discharge an employee for a first positive final test unless the following have been met: The employer has given the employee the opportunity
to participate in, a drug counseling or rehabilitation program. This would be at the employee’s own expense or under an
employee benefit plan Whether it is a counseling or rehab program is
determined by the employer after consultation with a certified chemical use counselor or a physician trained in chemical dependency diagnosis and treatment
AND The employee has either refused to
participate or has failed to successfully complete the program◦ Failure is evidenced by withdrawal from the
program before its completion or by a positive test result on a confirmatory test after completion of that program.
An employer may temporarily suspend the tested employee or transfer the tested employee to another position at the same rate of pay pending the outcome of the confirmatory test and, if requested, the confirmatory retest, IF
◦ The employer believes it is reasonably necessary to protect the health or safety of the employee, co-employees, or the public.◦ An employee suspended without pay must be
reinstated with back pay if the outcome of subsequent testing is negative.
An employer may not use the information provided by the employee to explain the positive test result to discriminate against the employee on the basis of medical history information unless the employee had an affirmative duty to provide the information before that time and did not do so.
An employee must be given access to information in their personnel file◦ relating to positive test result reports◦ other information acquired in the drug and alcohol
testing process◦ conclusions drawn from and actions taken based on
the reports; or◦ other acquired information.
• DOT testing is a little bit different, as it follows federal regulations, and which should be addressed in a separate written policy.
• Employer is exempted from following the requirements of MN State Law.– This means no requirement prohibiting discharge
upon first DOT verified drug and/or confirmed positive test.
– Consequences are usually addressed in policy and/or collective bargaining agreements.
• Alcohol test result of 0.020-0.039 BAC is notconsidered a positive test for DOT purposes.
• However, employee cannot perform safety sensitive functions for 24 hours. – Address in the policy. Employers often send the
employee home (ensure employee has secured an escorted ride home, designate use of type of leave utilized).
– Nothing prohibits imposition of discipline at this point, subject to the written policy and any collective bargaining agreement.
• Alcohol test result of 0.04 or higher BAC.• Immediately remove the employee from
performing the safety sensitive function.– Employee cannot return to performance of safety
sensitive process until the he/she has completed the return to duty process under the federal regulations.• Substance abuse professional evaluation and comply
with treatment recommendations.– Discipline may be imposed consistent with policy
and collective bargaining agreement.
Verified positive drug test◦ Immediately remove the employee from performing
safety sensitive functions. ◦ Employee may request a split specimen be tested
at another laboratory within 72 hours of the employee being notified of the positive test result◦ Discipline may again be imposed consistent with
policy and collective bargaining agreement.
• Dilute test results – it depends….– Dilute positive – treated as a verified positive test.– Dilute negative
• Creatinine concentration equal to or greater than 2mg/dL but less than or equal to 5 mg/dL, the recommendation from the Medical Review Officer will likely direct the immediate recollection and testing under direct observation.
• Creatinine concentration equal to or greater than 5 mg/dL – optional retest at discretion of employer – but be consistent here!
Applicants that receive a positive test may also request a split specimen be tested at another laboratory within 72 hours of the employee being notified of the positive test result.
Required to provide a listing of qualified substance abuse professionals to the applicant.
• The statute provides that parties to collective bargaining are not limited from bargaining and agreeing to drug testing policies that exceed the standards outlined in the statutes.– Unions do not have the ability to interfere in the
decision to conduct random testing of employees in safety sensitive positions.
– Unions do have the ability to engage in “impact bargaining” once the employer decides to do random testing.
In Lewis v. Ashland, Inc., 813 F.Supp. 2d 1113 (D. Minn. 2011), an employee was properly terminated for, after being called to a drug test, becoming disruptive in the waiting room and disrupting the test in the judgment of the test center staff. ◦ The court noted that the employee could be
terminated for insubordinate and disruptive actions even if he completed the test.
◦ Do not feel compelled to drug test in every instance where you have discretion.◦ Do feel free to not drug test if there are separate
grounds for determining a violation. Because of the treatment mandates and prohibition
against discharge in a first instance, testing may not produce your desired outcome.
• The League of Minnesota Cities maintains an excellent base of drug testing policies.
• Check them out at: – For non-DOT policies:
• www.lmc.org/media/document/1/MinnNonCDL.doc– For DOT policies:
• www.lmc.org/media/document/1/DOTDrugandAlcoholTesting.doc
– Also, check out:• www.lmc.org/media/document/1/medicalcannabisinmi
nnesota.pdf
