Can My Employer Fire Me if I Fail a Drug Test?

Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA) governs drug testing for employees. Employers may not require drug or alcohol testing unless such testing is completed under a written drug and alcohol testing policy that contains certain information required by law.[1] The testing must also be completed only by a qualified laboratory.[2]

If your employer requires you to take an initial drug test and you test positive, DATWA prohibits your employer from firing you without first providing you with the opportunity to participate in counseling or rehabilitation.[3] Your employer is also required to provide you with written documentation of your test results.[4]

If your employer has not followed these legal requirements, or you have questions about drug testing at work, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

 

[1] Minn. Stat. § 181.951, subd. 1.

[2] Minn. Stat. § 181.953, subd. 1.

[3] Minn. Stat. § 181.953, subd. 10(b)(1); Hanson v. City of Hawley, No. A05-1940, WL 1148125, at *1 (Minn. Ct. App. May 2, 2006).

[4] Minn. Stat. § 181.953, subd. 7.

Can My Employer Fire Me for Reporting Violations of Law?

The Minnesota Whistleblower Act (MWA) protects employees who report illegal activity, or “blow the whistle,” at work. The MWA prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee in relation to compensation or the terms, conditions, location, or privileges of employment because an employee reported illegal activity.[1]

You are protected under the MWA if you make a good faith report of a violation, suspected violation, or planned violation of any state or federal law, common law, or rule.[2] These categories are very broad and protect a wide range of conduct. You are protected whether you make this report to your employer or any governmental body or law enforcement official.[3] In addition and separately, you have the same protections if a public body or office requests that you participate in an investigation, hearing, or inquiry.[4]

Whistleblower protections include, for example, reporting violations relating to COVID-19, state or federal workplace safety rules, criminal violations, securities laws, and virtually any other type of legal rule, law or regulation.

If you have questions about whistleblower rights contact us. Or if believe that your employer has terminated your employment or treated you unfairly after you reported illegal activity, contact us. Our experienced Minnesota employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

 

[1] Minn. Stat. § 181.932, subd. 1(3).

[2] Minn. Stat. § 181.932, subd. 1(1).

[3] Minn. Stat. § 181.932, subd. 1(1).

[4] Minn. Stat. § 181.932, subd. 1(2).

Can I Request My Personnel Record from My Employer?

Under Minnesota law, if an employee makes a written request to their employer, the employer must provide the employee with the opportunity to review their personnel record.[1] However, the employer is not required to provide an opportunity for the employee to review their personnel record if the employee has reviewed their file within the previous six months.[2] After an employee no longer works for the employer, the employee may review their personnel record once per year for as long as the record is kept.[3]

For current employees, if an employee makes a written request, the employer must allow the employee to view the file within seven days for records kept in Minnesota, or fourteen days for records kept outside of Minnesota.[4] For current employees, the personnel record (or an accurate copy) must be made available to the employee during the employer’s normal operating hours.[5] The employer is allowed to be present (or have a representative present) during review of the personnel file.[6] After review, the employee can make a written request for a copy of the record, and the employer is required to provide a copy.[7]

For former employees, the employer must provide a copy once the former employee makes a written request, but need not allow review of the personnel file itself.[8] The employer is not permitted to charge a copy fee for the copy of the personnel file.[9] The employer must provide a copy of the file to the employee within seven days (for files kept in Minnesota) or fourteen days (for files kept outside the state).

If you have questions about this process, contact us. Our experienced employment law attorneys would be happy to discuss the process and help you determine your next steps.

[1] Minn. Stat. § 181.961, subd. 1.

[2] Minn. Stat. § 181.961, subd. 1.

[3] Minn. Stat. § 181.961, subd. 1.

[4] Minn. Stat. § 181.961, subd. 2(a).

[5] Minn. Stat. § 181.961, subd. 2(b).

[6] Minn. Stat. § 181.961, subd. 2(b).

[7] Minn. Stat. § 181.961, subd. 2(b).

[8] Minn. Stat. § 181.961, subd. 2(c).

[9] Minn. Stat. § 181.961, subd. 2(d).

[10] Minn. Stat. § 181.961, subd. 3.

Brian Rochel Selected to Serve Three-Year Term on Minnesota NELA Board

Brian Rochel has been selected to serve as a Board member on the Minnesota Chapter of the National Employment Lawyers’ Association (MN-NELA). MN-NELA is a highly-respected organization of lawyers who are dedicated to advancing the rights of workers by providing information, education, and advocacy on behalf of employees. MN-NELA works to advance employee rights by influencing judicial lawmaking, legislative lawmaking, and educating the bench, bar and public on issues that affect workers’ rights.

MN-NELA has had a profound impact in the rights of employees over the past several decades. Its major achievements include amicus briefing at the Minnesota Supreme Court, helping draft impact legislation, and facilitating collaboration across hundreds of lawyers and law firms who represent employees and workers across the state.

Brian has been a member of MN-NELA since 2010, served on the Board from 2014-2017, and is proud to continue serving the organization.

President Biden’s New Vaccine Mandate—What It Means for Employees

On Thursday, September 9, 2021, President Biden issued an executive order with new vaccine mandates covering millions of employees. Here are several ways the new regulations impact employees.

Who Is Covered?

  • All federal employees;
  • All federal contractors;
  • All employees of employers who employee 100 or more employees;
  • Nearly all employees who are healthcare workers at health facilities (only those that receive Medicare or Medicaid);
  • Many teachers (those working in Head Start and in schools run by the Department of Defense and the Bureau of Indian Affairs).

Some estimates are that this will impact more than 80 million workers in the U.S. and at least 1.4 million workers in Minnesota.

What Is Required?

  • Covered employees will be required to receive a COVID-19 vaccine, or else be tested at least once per week.
  • Is it not clear when exactly all the mandates all go into effect. However, Minnesota OSHA has 30 days from September 9 to issue rules that will go into effect for Minnesota workers.
  • Federal employees have 75 days to be vaccinated.

What If My Employer Does Not Require Vaccination?

  • Covered employers are required to follow the federal mandates as well as related state regulations, such as those imposed by Minnesota OSHA. Any employer that fails to do so violates the law.
  • Employees can and should report violations of workplace safety laws, including OSHA and Minnesota OSHA regulations. Employers cannot retaliate against employees who report violations of law, including COVID-19 safety regulations.

What If I Choose Not to Get Vaccinated or Be Tested?

  • This is a common—and hotly debated—question. While there are several exceptions, generally, employers are legally allowed to terminate employees who choose to not be vaccinated.
  • The exceptions to vaccine mandate include on the basis of disability and for those seeking religious exceptions. The EEOC is a great resource for the details of those exemptions. However, it is important to highlight that the standards for seeking a medical or religious exemption are high.

How Do I Know If I Can Request FMLA Leave?

Employees may request leave under the Family and Medical Leave Act (FMLA).

To be eligible for FMLA leave, an employee must have worked for the employer for at least 12 months and have 1,250 hours of service in the previous 12 months. In addition, the employer must have at least 50 employees employed within 75 miles of the location the employee works at.

An employee may request FMLA for one of the following reasons:

  • Incapacity due to pregnancy, prenatal medical care or childbirth;
  • To care for the employee’s child after birth, or placement for adoption or foster care;
  • To care for the employee’s spouse son, daughter or parent who has a serious health condition; or
  • If the employee has a serious health condition that makes the employee unable to perform their job duties.

After an employee confirms that they meet the eligibility requirements and that they have a reason that entitles such employee to receive FMLA benefits, but their employer has denied their FMLA request, an employee may file a complaint with the U.S. Department of Labor. An employee may also file a private lawsuit against their employer.

An employer cannot interfere with, restrain, or deny any employee of any right provided under FMLA. It is also unlawful for any employer to discriminate against an employee, penalize an employee or terminate an employee for submitting an FMLA request or for using their FMLA benefits.

Employees of an airline flight crew, military members and/or military families may be entitled to additional benefits and should consult with an employment attorney if they have more specific questions.

If you feel you have experienced discrimination or retaliation at work related to FMLA, our attorneys at Kitzer Rochel are here to help. Contact us today. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace.

Can my Employer Force Me to Break the Law?

The Minnesota Whistleblower Act (MWA) protects employees who report illegal activity, or “blow the whistle,” at work. The MWA is also designed to deter employers from retaliating against employees who follow the law. The MWA prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee because an employee refused to break the law, or reported a violation of law.

For protection under the MWA, the employee must have an objective basis in fact to believe that an employer’s order violates a state law or federal law, rule, or regulation. An employee should also inform their employer that that they are refusing the employer’s order because they believe that it violates the law.

If you believe that your employer has terminated your employment or treated you differently after you refused to break the law, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

What is a reasonable accommodation for a disability and how can I request it from my employer?

Working with a disability does not have to be stressful. The Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) prohibit employment discrimination against qualified individuals with disabilities. A qualified individual with a disability is someone who fulfills what the position is requiring of an applicant, for example: skill set, experience, education, and any other job-related requirement. It is someone who can perform the basic duties the position entails either with or without reasonable accommodation/s.

All government agencies, and most employers, are required by law to provide reasonable accommodations to both qualified applicants and employees. The only time they would be unable to provide reasonable accommodation is if doing so would pose a direct threat or cause an undue hardship. Otherwise, employers must provide reasonable accommodations (adjustment or alteration), to provide applicants/employees an equal opportunity to compete for a job, equal access to benefits and privileges of employment, and/or to be able to perform the essential functions of the job.

Reasonable accommodations may look like the following:

  • Moving to a different office space;
  • Granting breaks or providing leave;
  • Providing accessible parking;
  • Providing telework or working remotely (including working from home);
  • Providing materials in alternative formats like large print or Braille; or
  • Changing when or how job duties are performed.

Under state and federal laws, individuals with disabilities have a right to request reasonable accommodations that will allow individuals to perform all the essential functions of the job. A job should not have to be burdensome to an individual with disabilities and reasonable accommodations should be request if needed. An employer is not allowed to retaliate against an employee who asks for reasonable accommodation, or who receives an accommodation.

If you feel you have experienced discrimination or retaliation at work related to your disability, our attorneys at Kitzer Rochel are here to help. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace.

Minnesota Supreme Court Holds that Employment Handbooks May Create Contractual Rights, Even When They Claim Not To

Today, the Minnesota Supreme Court ruled in favor of employees. In an important ruling, the Court held that employers who use blanket language stating that an employee handbook is “not a contract” do not necessarily prevent employees from bringing valid claims for breaching a contract. The case, Donald Hall v. City of Plainview, reiterated prior cases holding that employee handbooks can, in certain cases, be legally enforceable.

In Hall, the City of Plainview promised to pay its employees accrued paid time off (PTO) upon separation from employment. But the City refused to pay Hall his PTO upon his separation. The City claimed that a blanket statement in its handbook stating that no provision was intended to create a contract was enough for it to avoid responsibility for paying the PTO. But the problem, the Court held, was that the company promised to pay the PTO in one part of the handbook, while also vaguely and generally claiming that it did not have to follow any of the promises it made in the handbook. The Court held that such duplicitous language is ambiguous and that, as a result, a jury had to decide what the contract actually meant.

The takeaway for Minnesota employees is that when even if an employee handbook contains a statement that it does not create a contract, courts may still find that the terms of the contract are enforceable. It is a good idea to consult with an experienced employment attorney in these situations.

Phillip Kitzer and Brian Rochel of Kitzer & Rochel, PLLP participated in the case on behalf of Minnesota NELA, who appeared as amicus curiae arguing in favor of employees.

If you would like to learn more, or if you have any employment law question, contact Kitzer & Rochel today.

Phillip Kitzer Presents on COVID-19 Employment Issues to Minnesota Lawyers

On December 8, 2020, Phillip Kitzer presented “COVID-19: A Plaintiffs’ Employment Attorney’s Perspective” to the Minnesota chapter of the National Employment Lawyers Association along with Elizabeth Binczik, attorney at Fabian May & Anderson, PLLP.

The program covered a variety of employment issues that arise for Minnesota employees during the COVID-19 pandemic. Whether working from home under a stay-at-home order or caring for a child when school is closed, the pandemic has affected nearly every employee in the state. Phillip and Elizabeth discussed various laws that apply to employers during this time through programs such as the Families First Coronavirus Response Act (“FFCRA”), but also how employer bias and discrimination related to COVID-19 can violate employee protection laws.

If you feel you have experienced discrimination or retaliation at work related to COVID-19, our attorneys at Kitzer Rochel are here to help. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace.