Can an Employer Terminate an Employee For Testing Positive on a Drug Test?

It depends – Minnesota’s drug and alcohol testing statute imposes a number of conditions on an employer’s ability to terminate an employee for a positive drug or alcohol test.  Here’s what employers need to know about the statute’s requirements:

  • General Requirements for Drug Testing:  Minnesota law permits an employer to administer drug tests of employees only pursuant to a written policy that complies with certain statutory requirements.  Among other things, the statute requires that when an employee tests positive for drug or alcohol use:  (i) the result must be confirmed by a “confirmatory test;” (ii) the employee must be given written notice of the right to explain the positive test, for example, by identifying any medications the employee is taking or providing other information concerning the reliability of the test; and (iii) the employee may request a “confirmatory retest” of the original sample at the employee’s own expense.
  • First Time Positive Test By a Current Employee:  If the positive test result was the first time that the employee tested positive, the law requires that, before terminating the employee, the employer must generally provide the employee with an opportunity to participate in counseling or treatment, whichever is more appropriate, as determined by a certified chemical use counselor or a physician trained in the diagnosis and treatment of chemical dependency.  The employee may be terminated only if he or she refuses to participate in counseling or treatment or if he or she fails to complete the program successfully.  This rule does not apply if the employee has tested positive for the employer before.
  • Health and Safety Exception:  If an employer believes that it is reasonably necessary to protect the health or safety of the employee, co-employees, or the public, an employer may temporarily suspend an employee who tests positive or transfer him or her to another position at the same rate of pay pending the outcome of the confirmatory test and, if requested, the confirmatory retest.  If the employee is suspended without pay, and the confirmatory test or retest comes back negative, the employee must be reinstated with back pay.
  • Withdrawal of Job Offer for Job Applicants:  If a job applicant receives a job offer contingent on passing a drug and alcohol test, the employer must verify a positive test result with a confirmatory test before withdrawing the job offer.  Unlike current employees, however, the employer does not need to offer the job applicant an opportunity to participate in counseling or treatment before withdrawing the job offer.

See generally Minn. Stat. § 181.953.

Takeaway:  When an employee or job applicant tests positive on a drug and alcohol test, employers should make sure that they have complied with all statutory requirements before terminating the employee or withdrawing a job offer.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on November 11, 2013, in Drug and Alcohol Testing, Terminations and tagged . Bookmark the permalink. Leave a comment.

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