12 Fast Facts Employers Need to Know to Comply with Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA)

Minnesota has one of the most vigorous workplace drug-testing laws in the country.  Here are 12 fast facts you need to know if you require testing of employees or job applicants:

• You must have a written drug and alcohol testing policy;

• You must provide written notice of the policy to all affected employees when the policy is initially adopted and when any employee who was previously unaffected by the policy transfers to a position affected by the policy, and to job applicants upon hire and before any testing is required if the job offer is contingent upon testing;

• You must post notice of the policy in an appropriate and conspicuous location;

• You cannot test a job applicant until after you have made a job offer and only if you require a test of all other applicants for the same position;

• You cannot test as part of a routine physical examination unless it has been one year since the previous test and the employee is given at least two weeks’ written notice that a test may be required as part of the routine physical examination;

• You may only give a random test to employees in safety-sensitive positions;

• You may request a test upon reasonable suspicion that the employee is under the influence, or has violated written workplace rules prohibiting the use of drugs or alcohol at work, or has sustained or caused a workplace injury, or has caused a workplace accident;

• You cannot conduct your own test – you must use the services of an outside testing laboratory, appropriately certified;

• You must give written notice to an employee who tests positive with the right to explain the positive test;

• You cannot take adverse action against an employee based on a positive result from an initial screening test – you must conduct a confirmatory test;

• You cannot take adverse action against an employee based on a first-time positive result from a confirmatory test unless you first give the employee opportunity to complete treatment and the employee either refuses or fails to complete the treatment program;

• You cannot withdraw a job offer to a job applicant based on a positive result from an initial screening test – you must first verify the result by a confirmatory test.

Failure to follow any of these or the many other provisions of Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA) may subject the employer to severe penalties.  If you wish to update your policies or have other questions on compliance, you may contact attorney Joseph Gangi at 507-625-2525 or via email at jgangi@farrishlaw.com