Minnesota has a uniquely complicated statute governing drug and alcohol testing in the workplace. Minn. Stat. Section 181.950-957.  The statute can be a surprise for out of state employers with employees in Minnesota, as well as Minnesota-based companies. And non-compliance can be expensive. Employees who are tested in violation of the statutory requirements can potentially seek damages for lost wages, emotional distress, punitive damages and attorneys’ fees.  Here are the top ten ways employers run into trouble:

  1. Testing an employee or applicant without any drug and alcohol testing policy.
  2. Firing an employee after testing positive without allowing the employee to first seek and complete treatment.
  3. Disclosing the results of a drug or alcohol test to persons without a need to know. (Breach of confidentiality)
  4. Testing an applicant before making the decision to hire (and then not hiring the applicant although they passed the test)
  5. Not complying with technical notice and posting requirements (i.e. right to confirmatory retest, right to request copy of lab results, posting a notice of the policy in the workplace)
  6. Not setting parameters on treatment and return to work.
  7. Applying federal drug testing requirements and procedures for commercial drivers to non-drivers, and vice-versa.
  8. Testing an employee in an arbitrary and capricious manner without reasonable suspicion.
  9. Testing an employee or applicant without a Minnesota-compliant drug and alcohol testing policy, and not keeping a signed acknowledgment.
  10. Performing testing on site, using breath tests, or charging the employee for the test.
  11. Bonus: Testing an employee after admitted possession or use of illegal drugs instead of moving straight to termination.

There are many ways to run in trouble when drug or alcohol testing in the workplace in Minnesota, so be careful!

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Photo of Kathryn J. Russo Kathryn J. Russo

Kathryn J. Russo is a principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws, as well as…

Kathryn J. Russo is a principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws, as well as substance abuse management and marijuana laws’ impact on employers.

Kathryn helps clients navigate workplace problems involving drugs and alcohol. She regularly works with corporate counsel and human resources executives to develop substance abuse policies to comply with federal drug and alcohol testing regulations (including all agencies of the U.S. Department of Transportation), as well as state and local drug and alcohol testing laws and marijuana laws in all 50 states. In addition, she defends employers in litigation where drug and alcohol test results are at issue, and frequently conducts “reasonable suspicion” training for employers in connection with their substance abuse policies. Kathryn also advises employers on leave and disability management issues arising when employees seek leave or other accommodations related to substance abuse rehabilitation.