What If I Fail a Drug or Alcohol Test at Work?
Employer-administered drug and alcohol testing in Minnesota is governed by the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA). If your employer or prospective employer requires you to take a drug or alcohol and you fail, you have certain legal rights.
If you test positive, you must be given written notice of your results and your rights under DATWA.[1] Your employer may require you to provide information on medication you take or other information relevant to an explanation of the positive test result.[2] Your employer must cover the cost of the initial test and a confirmatory test. The employee may request a confirmatory retest at their own expense. You have the legal right to submit information that explains your positive test result within three working days of receiving notice of confirmatory test results.[3] Within three working days, you may also request a confirmatory retest of the original sample at your expense.[4]
If you test positive for a pre-employment drug or alcohol test associated with a conditional offer of employment, the offer may not be withdrawn based on the results of the initial test alone. To withdraw the offer for a positive test result, the initial test result must be verified by a confirmatory test.[5]
If you test positive while you are already an employee, you have a number of legal rights, and your employer is subject to certain legal requirements. First, your employer is not allowed to terminate your employment, discipline you, discriminate against you, or require rehabilitation on the basis of an initial test that has not been verified by a confirmatory test.[6] Second, if the positive result is your first positive result for that employer, your employer cannot terminate your employment unless you are first given the opportunity to participate in a drug or alcohol counseling or rehabilitation program and then you refuse to participate in or fail to complete the program.[7] However, your employer may temporarily suspend you or transfer you to another position pending the outcome of a confirmatory test or confirmatory retest if the employer reasonably believes this is necessary for safety reasons.[8]
If your employer or a prospective employer has not followed these legal requirements or retaliated against you for asserting your rights under DATWA, 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. § 181.953, subd. 6(b).
[2] Minn. Stat. § 181.953, subd. 6(b).
[3] Minn. Stat. § 181.953, subd. 6(c).
[4] Minn. Stat. § 181.953, subd. 6(c).
[5] Minn. Stat. § 181.953, subd. 11.
[6] Minn. Stat. § 181.953, subd. 10(a).
[7] Minn. Stat. § 181.953, subd. 10(b).
[8] Minn. Stat. § 181.953, subd. 10(c).
