Drug and Alcohol Testing 02-27-2006

INTRODUCTION
Employers today face and must deal with the very real problem of substance abuse in the workplace. This article discusses the benefits and risks of drug and alcohol testing as one tool to combat the problem of workplace substance abuse. The article touches briefly on federal testing requirements, but focuses primarily on the state statutory testing scheme set forth in the Minnesota Drug and Alcohol Testing in the Workplace Act. This statute applies to all Minnesota employers, regardless of the size of the business or the number of employees.

I. WHY STRIVE FOR A DRUG AND ALCOHOL-FREE WORKPLACE?

Compared to substance abusers, employees free of alcohol and drugs in the workplace:

Have fewer accidents;
Make fewer mistakes;
Have fewer absences;
Are more productive;
Have lower medical costs;
Are less likely to have their wages garnished;
Are less likely to steal from coworkers to support drug habits; and
Are less likely to experience strained relationships with co-employees.

II. DRUG-FREE WORKPLACE PROGRAM

Testing is but one potential component of a drug-free workplace program. An employer serious about maintaining a workplace free of drugs and alcohol should proceed with a comprehensive approach, which, at a minimum, should include:

Needs Assessment
Policy Development
Employee Education
Supervisory Training
Establishment of an Employee Assistance Program

Testing may or may not be a tool utilized in an employer's program.

III. TO TEST OR NOT TO TEST?

A preliminary question to be answered by an employer is whether or not to utilize testing as a component of its drug-free workplace program. That preliminary inquiry is a two-step process:

Does the employer have to test?
If not, should it?

A. Mandatory Testing

Some employers are required to test for drugs and alcohol. Those employers subject to mandatory testing are governed by federal law and are principally in the transportation and other safety-sensitive industries. For example, the Federal Department of Transportation requires testing of employees in businesses subject to the DOT, such as airlines, motor carriers, railroads, mass transit, pipelines and certain maritime industries. The Department of Defense requires many of its contractors to test. The Federal Highway Administration, the Nuclear Power Regulatory Commission, and other federal agencies and departments may require testing within their spheres of authority.

B. Discretionary Testing

All employers not subject to mandatory testing laws are free to test or not to test, within legal limits.

C. Should You Test?

Whether a particular employer chooses to adopt testing as part of its drug free workplace program depends on the particular circumstances in existence in the workplace and the objectives of the employer. While testing can be useful in detection and deterrence, it is not always necessary or desirable.

Reasons employers have given for choosing to use testing include:

To promote workplace safety.
To promote workplace efficiency.
To promote employee rehabilitation.
To reduce employer costs associated with drug abuse, such as absenteeism, use of sick leave, liability for industrial accidents, and use of medical plans.
To promote confidence among the public that a particular job is being performed safely and properly.
To prevent theft.
To prevent blackmail.
To promote co-worker morale.
To determine fitness for duty.
To corroborate evidence of misconduct.
To discourage illegal or immoral conduct by employees.
To promote a drug-free society.
To gather facts about employee drug use and operational efficiency.

Arguments used to reject testing as a tool have included the following:

Testing opens employers to potential legal liability under federal and state law.
Testing can produce erroneous results.
Testing invades employee privacy.
Testing can create employee relations problems and morale problems.
Positive test results are not in themselves evidence of wrongdoing; the tests do not indicate whether a worker is actually impaired while on the job.
An employee who fails a drug test may not be impaired at all.
The only way to prevent cheating during a urine test is to have a reliable person watch at close range while the tested employee urinates into a bottle. Such a procedure, while necessary for accuracy of the tests, violates privacy and can cause serious problems with employee morale.
A properly conducted drug testing program, which must include confirmatory tests as well as initial screening tests, can be expensive.
There are better ways to prevent and combat drug use in the workplace without alienating employees, such as improved interviews and reference checks, better training of supervisors to detect drug problems and employee assistance programs.

IV. STATE-MANDATED REQUIREMENTS IF YOU CHOOSE TO TEST

Minnesota has a statute that regulates drug and alcohol testing in the workplace. That statute is the Drug and Alcohol Testing in the Workplace Act, Minn. Stat. § 181.950 - 181.957 ("the Act"). The Act does not require any employer to test employees or applicants for drugs or alcohol, but does regulate those who choose to test. The statute requires an employer to comply with its dictates not only when the employer "requires" testing but also when the employer "requests" testing. In other words, the statute applies not only when an employer requires or demands testing, but also when the employer simply requests that an employee submit to testing. This is a potential trap for an unwary employer. An employer should not ask an employee to voluntarily submit to a drug test—it should not even suggest that—unless the employer is prepared to comply with every requirement in the statute.

A. Who Is Covered?

Any employer located or doing business in Minnesota and having one or more employee (including the State and all political or other governmental subdivisions of the State).

B. How Does The Act Relate To Federal Testing Requirements?

In general, where an employer is subject to a federal statute or regulation, the employer must comply with both state and federal requirements where possible. Where inconsistencies exist, the employer is most safe complying with the federal requirements.

Employers who are governed by drug and alcohol testing regulations issued by the Federal Railroad Administration, the Federal Highway Administration or the Federal Transit Administration are exempt from the requirements of the Act so long as testing procedures comply with applicable Department of Transportation Rules.

C. Is A Written Policy Required?

The Act requires a written policy and publication prior to testing. The policy must describe:

Which employees (or applicants) are subject to testing.
The circumstances under which testing may be requested or required.
An employee's (or applicant's) rights to refuse testing and the consequences of a refusal.
Any discipline or adverse action that may be taken based upon a confirmed positive result.
The employee's (or applicant's) right to explain a positive test and pay for and obtain a confirmatory test.
Any other appeal procedures that might be available.

The policy must be published by being provided to employees, posted, and kept at the personnel office or other suitable location.

D. What Notice Is Required?

Written notice of a drug and alcohol testing policy must be provided to applicants and employees prior to testing.

An employer shall provide written notice of its drug and alcohol testing policy:
- to all affected employees upon adoption of the policy;
- to a previously non-affected employee upon transfer to an affected position; and
- to a job applicant upon hire and before any testing of the applicant.
An employer shall post notice in an appropriate and conspicuous location on the employer's premises that the employer has adopted a drug and alcohol testing policy and that copies of the policy are available for inspection during regular business hours by its employees or job applicants in the employer's personnel office or other suitable locations.
*Before requesting an employee or job applicant to undergo drug or alcohol testing, an employer shall provide the employee or job applicant with a form, developed by the employer, on which to acknowledge that the employee or job applicant has seen the employer's drug and alcohol testing policy.

E. Who Can Be Tested?

Both employees and applicants may be tested.

Applicant Testing. Testing must be requested or required of all job applicants for the same position. The request or requirement must come after a conditional job offer has been made.
Employee Testing. All employees are subject to testing, except that random testing can only be requested or required of employees in safety sensitive positions.

F. What Types Of Testing Are Permitted?

Routine Physical Examination Testing. An employer may request or require an employee to undergo drug and alcohol testing as part of a routine physical examination provided the drug or alcohol test is requested or required no more than once annually and the employee has been given at least two weeks' written notice that a drug or alcohol test may be requested or required as part of a physical examination.
Random Testing. An employer may request or require only employees in safety sensitive positions to undergo drug and alcohol testing on a random selection basis. "Safety Sensitive Position" means a job, including any supervisory or management position, in which an impairment caused by drug or alcohol usage would threaten the health or safety of any person. "Random Selection Basis" means a mechanism for selection of employees that:
- results in an equal probability that any employee from a group of employees subject to the selection mechanism will be selected; and
- does not give an employer discretion to waive the selection of any employee selected under the mechanism.
Reasonable Suspicion Testing. An employer may request or require an employee to undergo drug and alcohol testing if the employer has a reasonable suspicion that the employee:
- is under the influence of drugs or alcohol;
- has violated the employer's written work rules prohibiting the use, possession, sale or transfer of drugs or alcohol while the employee is working or while the employee is on the employer's premises or operating the employer's vehicle, machinery or equipment, provided the work rules are in writing and contained in the employer's written drug and alcohol testing policy;
- has sustained a personal injury arising out of and in the course of employment or has caused another employee to sustain a personal injury; or
- has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.
"Reasonable Suspicion" means a basis for forming a belief based on specific facts and rational inferences drawn from those facts.
Treatment Program Testing. An employer may request or require an employee to undergo drug and alcohol testing if the employee has been referred by the employer for chemical dependency treatment or evaluation or is participating in a chemical dependency treatment program under an employee benefit plan, in which case the employee may be requested or required to undergo drug or alcohol testing without prior notice during the evaluation or treatment and for a period of up to two years following completion of any prescribed chemical dependency.
Costs. An employer may not request or require an employee or job applicant to contribute to, or pay the cost of, drug or alcohol testing, except for confirmatory retests at the request of the job applicant or employee.

G. What Information Must Be Provided To An Employee Or Applicant?

No testing is authorized unless done pursuant to a written drug and alcohol testing policy and conducted by an approved testing laboratory. The employer must provide an employee or job applicant prior to requesting testing a form on which to acknowledge that the employee or job applicant has seen the employer's drug and alcohol testing policy.

When testing is requested as part of a routine physical examination, an employee must be given at least two weeks' written notice that a drug or alcohol test may be requested or required as part of the physical examination. Within three working days after receipt of a test result report from the testing laboratory, an employer shall inform in writing an employee or job applicant of:

a negative test result on an initial screening test;
a negative or positive test result on a confirmatory test;
that the employee or job applicant has the right to request and receive from the employer a copy of the test result report on any drug or alcohol test.

In the case of a positive test result on a confirmatory test, the employer shall, within three working days after receipt of the test results, inform the employee or job applicant of the following:

that the employee or job applicant has three working days to submit information to the employer to explain the results of the test;
that the employee or job applicant has five working days to notify the employer in writing of the employee's or job applicant's intention to obtain a confirmatory retest;
that an employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test;
that if a job applicant has received a job offer made contingent on the applicant passing drug and alcohol testing, the employer may not withdraw the offer based on a positive test result from an initial screening test that has not been verified by a confirmatory test.

Upon an employer's receipt from a job applicant or employee of a written notice of intent to obtain a confirmatory retest, an employer must, within three working days after receipt of the notice, notify the original testing laboratory that the employee or job applicant has requested the laboratory to conduct the confirmatory retest or transfer the sample to another laboratory licensed under statute to conduct the confirmatory retest.

Upon request, an employer must provide an employee or job applicant a copy of the test result report on any drug or alcohol test.

If an employer based on test results withdraws an offer of employment, the employer must inform the job applicant of the reason for its action.

An employee must be given access to information in the employee's personnel file relating to positive test result reports and other information acquired in the drug and alcohol testing process and conclusions drawn from and actions taken based on the reports or other acquired information.

H. Who Must Conduct The Testing?

An employer must use the services of a testing laboratory that meets statutory qualification criteria and which complies with statutory testing procedures.

An employer may not conduct drug or alcohol testing of its own employees and job applicants using a testing laboratory owned and operated by the employer (except that, one agency of the state may test the employees of another agency of the state).

I. If An Employer Is Involved In Handling Samples, What Requirements Apply?

If an employer handles samples to be tested, it must establish its own reliable chain of custody procedures to ensure proper record-keeping, handling, labeling, and identification of the samples to be tested in compliance with the requirements set forth below. If the samples are taken by the testing facility, an employer can disregard this section.

Chain of custody procedures require the following:

possession of a sample must be traceable to the employee from whom the sample is collected, from the time the sample is collected through the time the sample is delivered to the laboratory;
the sample must always be in the possession of, must always be in view of, or must be placed in a secured area by a person authorized to handle the sample;
a sample must be accompanied by a written chain of custody record; and
individuals relinquishing or accepting possession of the sample must record the time the possession of the sample was transferred, and must sign and date the chain of custody record at the time of transfer.

J. What Can An Employer Do If Testing Is Refused?

Applicant: An employer may withdraw a conditional job offer upon an applicant refusing to test.
Employee: An employer may discharge an employee for refusal to test.

K. What Can An Employer Do If An Employee Fails The Test?

Applicant: An employer may withdraw a conditional job offer based on a positive test result of a confirmatory test.
Employee:
- An employer may use the results of an initial screening test not verified by confirmatory test to temporarily suspend a tested employee or transfer that employee to another position at the same rate of pay pending the outcome of a confirmatory test, provided the employer believes that it is reasonably necessary to protect the health or safety of the employee, co-employees or the public.
- An employer may use the positive results of a confirmatory test to recommend participation in, at the employee's own expense, either a drug or alcohol counseling or rehabilitation program. While an employer cannot discharge an employee, it can impose discipline short of discharge.
- An employer may discharge an employee for whom a positive test result on a confirmatory test was the first such result for the employee and the employee either refused to participate in the recommended counseling or rehabilitation program or failed to successfully complete the program.
- An employer may discharge an employee for whom a positive test result on a confirmatory test was the second or more such result for that employee.

L. Can An Employer Discipline Without Reliance On Testing?

An employer with a testing policy can still discharge an employee who is drunk or using drugs at the workplace based on a "first" incident. That is, an employer is not bound by the protections of the testing statute as long as it does not rely on testing procedures to prove that the employee violated its policy against drug and alcohol use. The lesson is that you cannot discharge an employee just because that employee tests positive on the first confirmed drug or alcohol test. However, the statute does not limit what an employer can do based on the employee's activities as a whole. That is a very important distinction that the courts have made while interpreting the statute.

In early 1990, the Minnesota Court of Appeals decided two cases that distinguished between what an employer can do based on a drug test result and, on the other hand, what an employer can do based on the employee's actions in and of themselves.

The first case involved a police officer. He had been at a party where cocaine was present and took no action after seeing it, he had used cocaine, and he had been implicated in drug activity by the FBI. After admitting to his superiors that he had used cocaine, he took and failed a drug test. He entered treatment on his own. A disciplinary hearing was held, and he did not show up for it. He was discharged. The stated reason given for his discharge did not include failing a drug test. He sued, and argued that the statute prohibited his discharge unless he was provided the opportunity to go through counseling and rehabilitation and either refused or failed to do so. Because his employer did not offer that, he argued, he could not be discharged.

The court of appeals disagreed. Although the officer's discharge could not be based on the failed drug test—that would violate the statute—it could be based on other factors. The employer based its discharge not on the test result but on the officer's admitted use of cocaine and his failure to do anything when he saw an illegal drug at a party. As a result the discharge did not violate the statute, and was appropriate. City of Minneapolis v. Johnson, 450 N.W.2d 456 (Minn. App. 1990).

A few months later, a similar second case was decided. It also involved a police officer. Because of his use of alcohol and cocaine he was consistently late for work. When questioned about his tardiness, he denied that he had any problems. A fellow officer found vials of cocaine stuck under the seat of the squad car the officer was using. The officer was asked to take a drug test and failed it. After a different officer found a cutting agent for cocaine over the visor of the squad car, the officer was questioned about it and again denied any knowledge of it. He was then confronted with his positive test result, admitted to his cocaine use, and voluntarily entered and successfully completed a rehab program. Nonetheless, he was discharged.

He argued that he could not be terminated because he was never offered counseling or rehabilitation after failing his drug test. The court disagreed. The court did not believe that the statute was intended to prevent an employer from discharging an employee for conduct associated with drug use. The intention behind the statute was "to prevent discharge based solely on drug test results without first offering counseling." The problem that the legislature was addressing with the statute was the potential unfairness of an employer relying solely on the result of a single drug test to discharge an employee. The statute did not bar an employer from firing an employee "for reasons independent of the test result." The officer had been discharged not because he failed a drug test but because he failed to perform his duties. "The statute," the court wrote, "simply does not prohibit discharge for conduct which, although inextricably intertwined with the use of illegal drugs, amounts to just cause for termination." Matter of Copeland, 455 N.W.2d 503 (Minn. App. 1990).

The statute says you cannot fire an employee on the basis of a single failed test; these cases say you can fire an employee if the employee's substance abuse has resulted in conduct that merits discharge irrespective of the test results.

That's a somewhat subtle but extremely important distinction to keep in mind.

M. What If An Employer Violates The Statute?

The Act provides an employee or applicant the right to sue an employer for violation of the Act.

An employee may obtain injunctive relief such as an order returning the employee to the job.
An employee may recover damages from an employer or laboratory in the amount of damage caused by the violation, plus attorney's fees, if the violation is proven to be knowing or reckless.

V. LIABILITY EXPOSURES ASSOCIATED WITH TESTING

A. Union Issues

The NLRB has ruled that drug and alcohol testing of employees is a mandatory subject of bargaining. If the work force is unionized, there is an obligation to bargain with the union when a testing program covering current employees is introduced.

However, testing of applicants is not a mandatory subject of bargaining because applicants are not employees within the meaning of the labor laws. Thus, employers need not bargain with their unions before testing job applicants (except hiring hall situations).

B. Disability Discrimination Issues

Prior to imposing discipline based on drug or alcohol testing, an employer must assess the protections an applicant or employee may have under disability discrimination laws.

Minnesota Human Rights Act. The Minnesota Human Rights Act prohibits discrimination on the basis of disability. The Act does not, however, protect any condition resulting from drug or alcohol abuse which prevents a person from performing the essential functions of the job in question or constitutes a direct threat of property or the safety of others. Thus, an employer would not violate the Act by disciplining an employee based on drug or alcohol testing as long as the drug or alcohol use actually interfered with the employee's performance of an essential job function or constituted a direct threat to property or the safety of others.
Americans With Disabilities Act. With respect to drug testing, the ADA does not prohibit the testing of applicants or employees nor does it protect chemically dependent persons who are currently using illegal drugs. Thus, testing for illegal drug use and disciplining on the basis of that test does not violate the ADA.

Additionally, while the ADA regulates medical examinations of employees, drug testing is excluded from the definition of medical examination under the ADA.

With respect to alcohol testing, the ADA does not specifically preclude an employer from terminating an employee discovered to be an alcoholic through testing, but the ADA may require an employer to refrain from firing an alcoholic employee whose condition substantially affects a major life activity. In such a situation, the employer may be required by the ADA to reasonably accommodate the disability. Additionally, the ADA places strict limitations on medical examinations of employees and applicants and the EEOC has taken the position that alcohol tests are indeed medical examinations subject to ADA strict limitations on the use of such examinations. Thus, according to the EEOC, taking adverse action against a person on the basis of a positive alcohol test could violate the ADA unless the test was job-related and consistent with business necessity.

C. Minnesota's Lawful Consumable Product Statute

Under Minnesota's Lawful Consumable Product Statute, Minn. Stat. § 181.938 et seq., employers are prohibited from taking any adverse employment action against applicants or employees because of their use of lawful consumable products, including alcohol, off the employer's premises during non-working hours. However, the statute does contain certain exceptions, including:

Employers may restrict the off-duty use of alcohol if the restriction is part of a legitimate occupational qualification and is reasonably related to employment activities or responsibilities;
Employers may take adverse employment action on the basis of past or present job performance; and
Employers may take adverse action against persons who failed to satisfy the conditions of a chemical dependency treatment or after-care program.

Applicants and employees who prove a violation of the statute may recover damages limited to wages and benefits lost by the violation plus reasonable attorneys' fees.

D. Potential Challenges To Testing Programs

Employers face a variety of potential challenges to their operation of testing programs. Those challenges may be asserted by applicants, employees and unions.

Federal Constitutional Claims. The Supreme Court has decided that drug tests by public employers and private sector employers in certain heavily-regulated industries constitute administrative searches under the Fourth Amendment to the United States Constitution, but has declined to recognize a requirement for a warrant to individualized suspicion.
Federal Statutes. Various federal statutes may provide employees a basis to challenge an employee's testing.
- Under Title VII of the Civil Rights Act of 1964, an employer cannot apply its drug-testing program on a discriminatory basis.
- Neither the American's with Disability Act nor the Rehabilitation Act prevents an employer from refusing to employ a person who is currently engaging in the illegal use of drugs. However, the following are within the class of persons protected by both the ADA and the Rehabilitation Act:
  - Former drug users who have successfully completed a supervised drug rehabilitation program or otherwise have been rehabilitated successfully and no longer engage in the illegal use of drugs;
  - Participants in a supervised rehabilitation program if they no longer illegally use drugs; and
  - Persons who are erroneously regarded as engaging in illegal drug use.
- While the Family and Medical Leave Act allows employees to claim that their drug addiction or alcoholism is a serious health condition requiring time off for treatment and reinstatement after treatment, it does not prohibit employers from testing employees for use of illegal drugs or from terminating employees for drug use.
State Constitutional Claims. In states where the right to privacy is protected in their constitution, employees who have been discharged for refusing a drug test may challenge the testing program by asserting a violation of a right to privacy. Minnesota does not have a right to privacy in its constitution.
Common Law Actions. Common law claims Minnesota employers are likely to confront with respect to testing include unjust dismissal/wrongful discharge, negligent drug testing, negligent/intentional infliction of emotional distress, defamation and common law right to privacy.

CONCLUSION
Employers should assess the desirability of using drug and alcohol testing as a tool to promote a workplace free of alcohol and drugs. If testing is deemed appropriate, it needs to be conducted in compliance with statutory requirements.