Navigating the Minnesota Drug and Alcohol Testing in the Workplace Act (MDATWA) can be a complicated task for employers who want to maintain a drug-free workplace. This is especially true for those operating in safety-sensitive industries like transportation, where such testing is often mandated by state and federal regulations. In light of the country’s continuing opioid crisis and trend towards marijuana de-criminalization and legalization for medical use, employers are asking more questions than ever about their drug testing policies. Unfortunately for employees doing business in Minnesota, the MDATWA is one of the country’s more onerous drug testing laws.

About the Law

The MDATWA governs when and how employers can administer drug tests to both job applicants and current employees. The law has three major components in addition to a host of other reliability, fairness, and privacy safeguards. First, an employer must have a written drug testing policy with specified contents and notice. Second, an employer may only administer drug tests in five categories under specified circumstances: job applicant testing, routine physical examination testing, random testing, reasonable suspicion testing, and treatment program testing. Third, an employer may not discipline or discharge an employee for a positive test result unless it first provides an opportunity to complete a rehabilitation program.

Most claims arise under the MDATWA when an employer runs afoul of one or more of the above three areas. For example, many employers draft excellent drug testing policies, only to forget that they must provide repeated written notice of the policy to employees and job applicants before testing, upon hire, and during transfer from unaffected positions, as well as by posting notice on their premises, and making copies available for inspection. Furthermore, the circumstances under which employers may administer drug tests are quite limited, including the timing, frequency, and grounds for cause. Finally, some employers rush to action upon receipt of a positive result, either without understanding their own right to control the terms of the required rehabilitation opportunity, or without sufficient employee interaction about the terms.

MDATWA and Marijuana

Recently, many employers have been asking questions about the relationship of the MDATWA with Minnesota’s Medical Cannabis Therapeutic Research Act (MCTRA), which allows qualifying patients to use and possess marijuana for medical purposes. The MCTRA contains a provision expressly prohibiting an employer from discriminating against a qualifying patient based on a positive drug test result, unless the failure to do so would otherwise violate federal law. Following a positive result, the MDATWA requires employers to provide job applicants and employees with written notice of their right to explain the result. The MCTRA, in turn, provides that an employee may present verification of their status as a qualifying patient as a satisfactory explanation of the positive result.

The MDATWA can be a minefield for employers. Violations permit employees to recover damages for lost wages, reinstatement, emotional distress, and punitive damages, as well as attorneys’ fees for intentional violations. From drafting a compliant drug testing policy, to administering drug tests, and implementing rehabilitation programs, employers should consult with their attorneys about their drug testing practices to minimize their exposure to claims under the MDATWA.