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Mary M. Krakow

Mary M. Krakow Employment & Labor

mkrakow@fredlaw.com
612.492.7164
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Drug and Alcohol Testing: Is Your Policy Up-To-Date?

By: MARY M. KRAKOW

April 2002

Employers confront the issue of employee drug and alcohol testing in a number of ways. Sometimes employers want to test an employee who is exhibiting behavior suggesting recent use of illegal drugs or alcohol. Other times, employers want to test all applicants before hiring. Still other times, employers must test certain employees under federal or state Department of Transportation (DOT) testing regulations. Regardless of the reason for drug and/or alcohol testing, employers must ensure that they comply with the applicable federal and state laws or risk substantial monetary penalties.

Minnesota Imposes Strict Drug and Alcohol Testing Requirements on Employers

Minnesota's Drug and Alcohol Testing in the Workplace Act (Minn. Stat. Sections 181.950-.957) (the "Minnesota D&A Testing Act") governs drug and alcohol testing for all employees who are not covered by DOT regulations (discussed below). A Minnesota employer who has DOT-covered employees may follow the DOT testing regulations for those employees only. That employer, and all other Minnesota employers, must follow the Minnesota D&A Testing Act for all employees who are not covered by the DOT regulations.

Under the Minnesota D&A Testing Act, employers may not request or require an employee or job applicant to be tested unless the employer previously has adopted and published a written drug and alcohol testing policy that meets all of the law's requirements. Often to the surprise of employers, the Act mandates numerous unexpected requirements regarding all aspects of drug and alcohol testing; a violation of any of these requirements may give rise to potential liability.

For example, employers may only require drug and alcohol testing of applicants who have received a conditional job offer and then only if the employer tests all applicants who receive a conditional job offer for the same position. This includes both regular and temporary employees.

Employers may test current employees only in limited circumstances. These include random, reasonable suspicion, treatment program, and annual physical examination testing. Each of these types of testing has its own special rules. For example, random testing may only be requested or required for employees in "safety sensitive" positions-those in which an impairment caused by drug or alcohol use would threaten the health or safety of any person.

For all types of testing, employers must follow detailed rules regarding the type of notice it must give to each covered employee and applicant; the testing laboratory it uses; the methods used to collect the testing specimens (blood or urine); the chain of custody procedures used to ensure proper record keeping, handling, labeling, and identification of specimens to be tested; the type of testing the laboratory must perform; the type of written test result report it must receive from the testing laboratory and when it must receive it; the type of written notice it must provide the employee of the test's results; and the action it may or must take following a positive test by an applicant or employee, including when it is permissible to discipline employees who test positive. For example, employers cannot terminate an employee after one positive test result except under very limited circumstances after the employer has referred the employee for drug and/or alcohol treatment assessment.

Employees who believe their employer has violated the Minnesota D&A Testing Act may bring an action against the employer for recovery of back pay and any other allowable damages, such as emotional distress or punitive damages, and may recover attorney's fees if the employee can show the employer knowingly or recklessly violated the Act.

DOT Testing Rules Apply to Both Interstate and Intrastate Transportation

Federal DOT regulations generally apply to any employer that operates a commercial motor vehicle to transport passengers or property if the vehicle (a) has a gross vehicle or combination weight of 26,001 or more pounds, (b) is designed to transport 16 or more passengers, including the driver, or c) is used to transport materials found to be hazardous under the Hazardous Materials Transportation Act and which require the motor vehicle to be placarded. DOT regulations apply to both interstate and, by virtue of Minnesota's adoption of the regulations, to intrastate drivers, including but not limited to casual, intermittent, occasional, and leased drivers and independent owner-operator contractors.

These regulations require employers to test covered employees for drugs and alcohol under specified circumstances. The required testing generally includes pre-employment (but not alcohol testing), reasonable suspicion, random selection, post-accident, return-to-duty, and follow-up testing. Each of these types of testing has its own special rules as to both drugs and alcohol.

The DOT thoroughly revised the regulations that govern the actual testing process effective August 1, 2001. The revised regulations set forth the rules regarding all aspects of testing, including but not limited to the employer's responsibilities, urine specimen collection, drug testing laboratories, medical review officers (MRO's) and the testing verification process, split specimen tests, alcohol screening and confirmation tests, problems in drug and alcohol testing, substance abuse professionals, the return-to-duty process, and confidentiality rules. The revised regulations also set forth detailed requirements for the type of information employers must obtain about an applicant's drug and alcohol testing record, when and how the employer must do so and from whom, and the type of documentation the employer must maintain in relation to its efforts to obtain the information.

One key area of the revised regulations is a new procedure employers must follow to obtain a waiver from the governing DOT agency on a case-by-case basis to "stand down" an employee. A "stand down" is the act of temporarily removing an employee from the performance of safety- sensitive duties when he or she has produced a positive test but the MRO has not yet completed the verification process. Absent a waiver, employers are prohibited from engaging in a stand down.

Employers may no longer require employees to sign a consent, release, waiver of liability, or indemnification agreement with respect to any part of the drug or alcohol testing process.

Other Drug and Alcohol Rules May Apply

In addition to the Minnesota D&A Testing Act and DOT regulations, other rules regarding drug and alcohol may apply in specific industries or to specific employers. For example, employers covered by the Federal Aviation Administration or Federal Railroad Administration or other federal agencies must comply with the rules of those agencies. Employers who contract with the federal government must comply with the federal Drug-Free Workplace Act of 1988, including but not limited to establishing the required drug-free awareness program.

Because of the strict laws governing drug and alcohol testing, employers should consult with legal counsel to ensure compliance.