CAN MY EMPLOYER MAKE ME TAKE A DRUG TEST?

In 1987, the Minnesota legislature passed the Minnesota Drug & Alcohol Testing in the Workplace Act ("DATWA"), creating various requirements for employers when it comes to drug testing policies, notice, signage, confidentiality, treatment, and more. There are also federal laws that may be relevant to your situation, but this article focuses on the state law here in Minnesota. Let's look at some things that your employer cannot do if they are doing business in Minnesota.

Your employer (or prospective employer) cannot drug test you if they do not have a compliant drug and alcohol testing policy. This means that you could test positive and your employer is still in violation of DATWA if they do not have a compliant drug and alcohol testing policy in place. Many, if not most, of smaller employers are unlikely to have a compliant policy. Even larger and more sophisticated companies frequently fail to have a compliant policy. Just because you have failed a test does not mean that you do not have a claim under DATWA.

Your employer cannot fire you for failing a drug test without giving you a chance to seek and complete treatment first. This can get complicated, but generally speaking, your employer needs to give you a chance to get help before they fire you. And if your employer "rescinds" a job offer shortly after you begin working because of the results of a drug test in connection with your hiring and on-boarding, the same rule applies - you get a chance to seek and complete treatment before your employer can fire you.

Your employer cannot inform you over the phone of your test results, even through a medical review officer. Instead, your employer must inform you in writing.

Your employer cannot wait more than three business days to inform you of a failed drug test. Additionally, when your employer notifies you that you have failed a drug test, they must also inform you of your rights under DATWA - in writing.

Your employer cannot drug test you simply because you are going to be working off-site at a client's location for a project - even if your employer's client "requires" it. Many employers routinely do this, but it's not legal in Minnesota.

Your employer cannot disclose the results of your drug or alcohol test to others. Your employer must keep the results confidential.

Your employer cannot randomly drug test you. Instead, your employer must have reasonable suspicion that you are using drugs. This means that your employer cannot make you take a drug test just because they don't like you, in the hopes that you fail the test so that they can fire you. And it also means that your employer can't drug test you just because they have a hunch that you do drugs.

Your employer cannot drug test you on-site at your place of employment. Instead, your employer must have you submit to a drug test at a third-party facility. There are various reasons for this, including chain of custody and re-testing considerations.

Your employer can't fire you for consuming legal substances on your own time. This means that your employer can't fire you because there are pictures of you drinking alcohol and smoking cigarettes on Facebook and Instagram.

As you can see, there are a lot of things that your employer can't do when it comes to drug testing you. And in fact, I've heard one defense attorney with expertise in this area say that just about anyone who gets fired for a drug test has a legal claim under DATWA.

So what happens if my employer has violated DATWA?

You may have a variety of remedies available to you if your employer violated DATWA. These remedies could include:

  • wages that you have lost as a result of getting fired from your job
  • compensation for the emotional distress that you experienced from being fired
  • getting your old job back after you've been fired
  • punitive (extra penalty) damages in cases of egregious employer conduct
  • attorney's fees - meaning that if we think that you have a viable case, you don't pay us anything out of pocket for our legal representation

If you think that your employer may have violated Minnesota's drug testing law, or if you just want to learn more and talk to a lawyer, please give us a call at 612-590-3705 and we'd be happy to have a conversation with you.

Note: We wrote this article for informational purposes, and nothing in it should be considered legal advice. Every case is different, and you should consult with an attorney about your situation rather than relying on the information in this or any other article.