In the United States, 56% of employers require drug and alcohol testing as part of their hiring process. And as many as 70% may require a drug or alcohol test at some point during employment. While there are many good reasons why these tests might be necessary, there are also many employers who misuse their prerogative and go well beyond the scope of what is reasonable for employee drug tests.
Some employers use random screening as a way to terrorize their employees, or require frequent health checks that include drug testing. These are almost always the signs of a power-tripping employer, but there is also a line that they cannot cross. Where overenthusiastic testing becomes an illegal invasion of your personal and employee rights.
In fact, here in the state of Minnesota, we have some of the strictest laws relating to when employers can and cannot require their staff to submit to drug or alcohol screening. This means that if your employer seems to have been abusing their screening authority, there’s a good chance that their drug and alcohol screening policies are also breaking the law.
Today, we’re here to help you determine if your Minnesota workplace has been conducting unlawful drug and alcohol testing.
Employers Have Limited Drug Testing Rights
In Minnesota, employers are not allowed to drug test their employees with impunity. The laws limiting drug and alcohol testing by employers are incredibly strict, allowing only specific instances in which drug and alcohol testing could possibly be legal. What this means is that if your workplace or position doesn’t fall exactly into an allowable situation, employer-enforced drug testing is most likely illegal.
Let’s take a look at these exact circumstances where drug testing is permitted.
Job Application Testing
By far the most common use of drug/alcohol testing by employers is during the hiring process. Employers spend a lot of time and money on finding the right candidate, and a secret drug habit can be indicative of performance problems in the future. So pre-employment screening makes sense. But Minnesota law limits an employer from using the hiring process to force dozens of people to go through drug screening before consideration.
Employers are only allowed to require pre-hiring drug screening after a test-contingent job offer has been made. And the candidate has accepted. Once the offer is finalized, the employer can then ask a job candidate to undergo drug and alcohol testing. With the understanding that failure will result in the rescinding of the job offer.
And, if the job offer is rescinded after testing, employers are required to tell candidates that was the reason their offer was pulled.
Signs of Unlawful Testing:
- You are asked to take a drug test before an offer is given.
- More than one person is asked to take a drug test for the same position.
- Your offer was pulled after the drug test, but the employer won’t say why.
- You were not told that employment would be contingent on a drug test.
Routine Physical Exam
Now let’s talk about drug tests that happen after you are employed. Most employers are allowed to ask employees to undergo one routine physical exam a year. And in that one yearly exam, they are allowed to ask you to take a drugs and alcohol test. But there are some absolute limitations to this.
First, they can only perform this routine exam once a year. And second, they must inform you that drug and alcohol testing will be a part of the test. That information can’t be passed on as a comment in the hallway or at the end of a meeting. It has to be in writing, two weeks or more before the exam occurs.
Signs of Unlawful Testing:
- You are asked to undergo an exam more than once a year.
- You are not informed beforehand that drug and alcohol testing will be part of the exam.
- You are only told, but not told in writing, about the drug and alcohol testing
- Your employer tries to perform drug and alcohol testing outside of the routine exam.
Random Testing
Random drug testing is the bane of all micro-managed employees. It has been misused in many different ways, from threats of testing to actual frequent random drug testing. However, in Minnesota, random workplace drug testing is only appropriate in two very specific situations.
First, are employees who are in safety-sensitive positions. These are people working with addicts and at-risk populations, with large amounts of money, or actually providing security to your facilities. They may also be people who operate dangerous machinery. Anyone who puts their own lives or the lives of others in their hands during work. In other words, people who should always be absolutely sober at work.
If you are not in a safety-sensitive position, there’s a pretty good chance your employer is not allowed to randomly drug-test you.
Then there are professional athletes. The world of pro athletes is incredibly complicated, especially when it comes to employment and employee rights. So… If an athlete is part of a collective bargaining unit AND that bargaining unit has agreed to allow random drug testing, then a pro athlete’s employer may randomly administer drug and alcohol tests. Otherwise, no testing.
Signs of Unlawful Testing:
- Randomly testing employees who do not control life-or-death or high-risk work situations
- Randomly testing non-pro athletes
- Randomly testing pro athletes without clearance from their collective bargaining agreement.
Reasonable Suspicion Testing
Reasonable suspicion is one of the thorniest issues for employees facing drug testing challenges at work. Employers in Minnesota are allowed to request/require a drug test of employees only if they can prove that they have reasonable suspicion of abuse. And only if they suspect specific behaviors that violate company policy or endanger others. Here’s quick run-down of what employers are allowed to test if they suspect.
Intoxication At Work
Employers can ask you to take a drug or alcohol test if you appear to be clearly intoxicated while on work premises.
Violation of Written Rules
Employers can drug/alcohol test you if they have reasonable suspicion that you have broken written rules regarding use of drugs or alcohol. If your position requires more than on-the-clock sobriety and you are suspected of using intoxicating substances, your employer may be allowed to test you for policy violation.
Intoxication While Using Facilities and Equipment
Employers have a right to protect their own facilities and equipment. And the liability of their use. If you are suspected of using employee facilities or their equipment while intoxicated, it may be lawful for your employer to test you for drugs and alcohol. In part, to prove that they are less liable for any damage that might be caused.
You Sustained or Caused a Personal Injury
On a practical note, Minnesota allows employers to test their staff if a personal injury has occurred. Whether you or someone else were hurt. Particularly if they have reasonable suspicion that intoxication was the cause of the accident.
You Sustained or Caused a Work-Related Accident
Slightly different from a personal injury, a work-related accident could include wrecked machinery as well as potential injury to yourself or a colleague. If a work-related accident occurs and the investigation suggests intoxication, it may be legal to do testing for anyone involved.
Signs of Unlawful Testing:
- No reason for suspicion offered to justify the test
- Proof of ‘suspicion’ could only be gained by spying on or stalking employees
- Accident or injury related testing when there was no accident or injury
- Testing when an accident has nothing to point to intoxication (possibly to cover up unsafe conditions)
Treatment Program Testing
An employer may test a member of staff for drugs or alcohol if this is part of a pre-approved substance treatment program. Some employers will refer an employee to treatment rather than firing them after performance issues that were caused by addiction. This is a kind approach but, usually, maintaining the job is also contingent on completing and sticking to the treatment.
In this case, an employer may be legally allowed to require unannounced drug and alcohol testing both during the treatment program and for up to two years after it’s completion.
Signs of Unlawful Testing:
- Employer wants tests after discovering your private treatment program
- Employer continues to test longer than 2 years after a treatment program
- Employer refers a treatment program when addiction/substance abuse is not the problem
No Legal Duty
Finally, we’d like to note that Minnesota does not hold any employer responsible for completing drug and alcohol testing. This means that no matter what your employer says, they are not legally required to test you. They just want to.
Are you being unlawfully drug or alcohol tested at work? Is someone you know being tested with unfair frequency or suspicion? If so, your employer is breaking the law and can be stopped. By working with an experienced employment lawyer, you can defend your rights and the rights of your colleagues and stand up to your overzealously testing employer. For more information or a consultation on your workplace testing policies, contact us today!
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individualsituation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.