Minnesota will amend its drug testing law to permit oral fluid testing for drugs, cannabis and alcohol, effective August 1, 2024.

The Drug and Alcohol Testing in the Workplace Act (“DATWA”) currently requires employers who conduct drug and alcohol testing to use specific certified laboratories and to permit confirmatory re-testing after an applicant or employee tests positive.  Under the new provision, oral fluid testing will be permitted for drugs, cannabis, and alcohol, and will not require the services of a testing laboratory.  Moreover, employers will not be required to follow the written notice requirements for positive and negative test results and the right to confirmatory re-testing that DATWA requires for other types of drug and alcohol tests. 

“Oral fluid test” means analysis of saliva at threshold detection levels contained in the standards of one of the programs listed in DATWA (i.e., for drugs and cannabis:  the National Institute on Drug Abuse, the College of American Pathologists, and the New York Department of Health; or for alcohol:  the College of American Pathologists and the New York Department of Health).

Employees and applicants must be informed of the test result at the time of the oral fluid test.  Within 48 hours of an oral fluid test that is positive, inconclusive or invalid, the employee or applicant may request drug, alcohol or cannabis testing at no cost to the employee or applicant using the services of a testing laboratory specified by DATWA.  All of DATWA’s existing written notice requirements and rights to a confirmatory re-test will apply to such testing. 

Minnesota employers should consider whether oral fluid testing is right for their workplace.  Employers will need to revise their written drug, cannabis and alcohol testing policies to incorporate the requirements for oral fluid testing.

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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.