Most people know that Minnesota is an “at-will” employment state where employees may be fired for any reason or no reason at all. Many employers take steps to ensure their employees remain chemical free in the workplace by adopting drug and alcohol testing policies. The Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA), however, is very employee friendly. Therefore, before taking any adverse action against an employee for chemical use, employers should ensure they have a proper policy in place that complies with DATWA and Minnesota’s new medical marijuana laws.
The requirements of DATWA are set forth in Minnesota Statute 181.950 et seq., which prohibits employers from forcing an employee or potential employee to take a chemical test unless the employer has adopted a policy that includes substantive and procedural safeguards for the employee. Chief among those safeguards is that notice of the policy must be given to employees at the commencement of employment and again before any testing. The employer should require all employees to acknowledge this notice in writing.
DATWA also limits the situations in which an employer may require an employee to take such a test. An employer may test an applicant after a job offer is made and it may require a chemical test as part of a routine physical examination, so long as it is only once a year and the employee has received two weeks’ notice of the test. Random testing is only permissible for “safety sensitive” positions – those that are responsible for the safety and security of people or property. Finally, an employer may require a test if the employer has a reasonable suspicion the employee is under the influence, has violated work rules relating to chemical use while on the company premises, has sustained or caused a personal injury, or caused a work-related accident.
Any test that comes back positive may be retested at the employee’s request and expense. Even if the confirmatory retest also indicates use, an employer cannot take adverse action against the employee – such as suspending or terminating that employee – without first offering the employee an opportunity to go through treatment. This requirement is often surprising to employers as many feel that a positive chemical test is automatic grounds for termination. However, doing so is a clear violation of the statute. Section 181.956 lists the following allowable remedies for employees who have suffered a DATWA violation: all damages allowable at law, attorneys’ fees and appropriate equitable relief which could include ordering the employee reinstated to his previous position with back pay.
The employee’s right to control the conditions of his treatment is not absolute. Just recently, the Minnesota Court of Appeals addressed this issue. In Jones v. Green Bay Packaging, Inc., the court held that an employee does not have the right to attend the treatment of his choice. Rather, DATWA only requires the employer to provide an opportunity to participate in treatment, even if the employee would prefer that treatment be at a different facility.
The latest change that may affect employers is the adoption of the Medical Cannabis Program permitting individuals to obtain and consume cannabis for the treatment of certain medical conditions. Cannabis is normally one of the items subject to testing under a standard chemical test. However, the statutes creating the program have specifically stated its participants may not be disciplined or terminated by their employers because of their use of marijuana. This does not mean that an employer must permit an employee to consume or be under the influence of medical marijuana while at work. However, a participant may present verification of his enrollment in the program as a legitimate excuse for the positive test for offsite use at which point the employer may not take adverse action against the employee for that positive test.
In short, any employer that would like its employees to undergo chemical testing should ensure that they have taken the necessary precautions before doing so. Existing and new policies should be reviewed for compliance with the statute and case law to avoid potentially significant liability.
