Drug Testing Laws For Job Applicants In Minnesota: Compliance With Datwa

Employee drug testing is a critical part of the hiring process for many employers, particularly in industries like construction, transportation, and manufacturing where safety is a top priority. However, in Minnesota, the Drug and Alcohol Testing in the Workplace Act (DATWA) sets strict rules on how and when employers can conduct drug tests for job applicants. With the recent legalization of cannabis in Minnesota, employers must be even more cautious to ensure they remain compliant with DATWA while maintaining safe and productive workplaces.

What is DATWA?

The Drug and Alcohol Testing in the Workplace Act (DATWA) is a Minnesota state law that governs how and when employers can conduct drug and alcohol testing of employees and job applicants. Unlike federal regulations, which apply broadly to certain safety-sensitive roles (like those governed by the Department of Transportation), DATWA applies to most employers in Minnesota.

The primary purpose of DATWA is to protect employees and applicants from unfair, arbitrary, or overly invasive drug testing practices. To comply with DATWA, employers must follow specific procedures when conducting pre-employment testing, testing during employment, and testing in response to specific incidents or reasonable suspicion.

Key Provisions of DATWA

To comply with DATWA, Minnesota employers must adhere to several specific rules when conducting drug testing on job applicants. Key provisions include:

1. Written Drug Testing Policy: Employers must have a written drug testing policy that outlines when and how drug testing will occur. This policy must be provided to all job applicants before they undergo testing.
2. Notice to Applicants: Before any drug testing occurs, employers must provide written notice to applicants. This notice should inform them of their rights under DATWA and include a copy of the company’s drug testing policy.
3. Job Offer Requirement: Employers may only conduct pre-employment drug testing after making a conditional offer of employment. Testing applicants before a conditional offer is a violation of DATWA.
4. Uniform Testing: Drug testing must be applied consistently. Employers cannot single out specific applicants for testing while exempting others who apply for the same role.
5. Employee Rights to Request Retests: If an applicant’s drug test results are positive, they have the right to request a retest at their own expense. Employers must notify applicants of this right.
6. Privacy Protections: Employers must protect the confidentiality of all drug test results. Test results cannot be disclosed to third parties without the applicant’s written consent.
7. Medical Cannabis Considerations: As of 2023, cannabis is legal in Minnesota for recreational and medicinal use. Employers must be cautious when making hiring decisions based on cannabis-related test results.

How Does Cannabis Legalization Affect Drug Testing in Minnesota?

The legalization of recreational cannabis in Minnesota has introduced new challenges for employers. While cannabis remains a controlled substance under federal law, state law now permits its recreational use. As a result, employers must adapt their drug testing policies. For most non-safety-sensitive positions, employers cannot disqualify an applicant solely because they tested positive for cannabis, especially if the use occurred off duty. However, for safety-sensitive positions—like those in construction, healthcare, or transportation—employers retain the right to test for cannabis and deny employment based on a positive result. Employers should review their policies to ensure they do not unlawfully penalize candidates for lawful, off-duty cannabis use, while also ensuring compliance with safety regulations for certain roles.

Who Can Be Tested Under DATWA?

Under DATWA, job applicants can be tested only after a conditional offer of employment has been made. Employers can also conduct drug testing for current employees in specific situations. Testing is allowed when there is reasonable suspicion that an employee is under the influence, following a workplace accident where drug use may have contributed, and as part of random testing for employees in safety-sensitive roles. Additionally, follow-up testing is permitted for employees who have completed a rehabilitation program. These testing scenarios help employers maintain workplace safety while ensuring compliance with state law.

Steps to Ensure Compliance with DATWA

To ensure compliance with DATWA and avoid costly litigation, Minnesota employers should follow these best practices:

1. Develop a Written Drug Testing Policy: Draft a clear, comprehensive drug testing policy that complies with DATWA’s requirements. Include information on when testing will occur, which substances will be tested, and the consequences of a positive test result.
2. Update Policies to Address Cannabis: Review and revise drug testing policies to account for Minnesota’s legalization of recreational cannabis. Employers should specify whether cannabis use is prohibited for certain roles, such as safety-sensitive positions.
3. Provide Notice to Applicants: Before conducting any pre-employment drug testing, provide written notice to applicants. This notice should explain their rights under DATWA and include the company’s drug testing policy.
4. Train Managers and HR Teams: Train hiring managers and HR staff to understand DATWA’s requirements. Ensure that managers know how to apply reasonable suspicion testing protocols.
5. Maintain Confidentiality: Ensure that drug test results are kept confidential and are only shared with authorized personnel on a need-to-know basis.
6. Document Compliance Efforts: Maintain documentation that shows your company’s compliance with DATWA. This includes keeping records of applicant notices, test results, and any adverse actions taken.
    

Example of a Compliant Drug Testing Policy

ABC Construction Company Drug Testing PolicyEffective Date: [Insert Date]

Purpose: This policy establishes procedures for drug and alcohol testing to maintain a safe, drug-free workplace. It complies with Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA).

Testing Circumstances: ABC Construction will conduct drug testing in the following instances:

• Pre-Employment Testing: For all job applicants after a conditional offer of employment.
• Reasonable Suspicion Testing: If there is reasonable suspicion that an employee is under the influence.
• Post-Incident Testing: Following a workplace accident that may have been caused by drug or alcohol use.
• Random Testing: For employees in safety-sensitive positions.

Substances Tested: The company tests for controlled substances, including, but not limited to, cannabis, opioids, amphetamines, and alcohol.

Employee Rights: Employees have the right to request a retest of any positive result at their own expense.

Privacy and Confidentiality: All test results will be kept confidential and only shared with authorized personnel.

Get Help from Minnesota Construction Law Services

Compliance with Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA) is critical for employers, especially with recent cannabis legalization. Failure to comply can result in lawsuits, fines, and reputational damage.

If you’re unsure about your drug testing policies or want to update your compliance practices, reach out to Minnesota Construction Law Services. Our experienced legal team can help you create DATWA-compliant drug testing policies, train your HR staff, and ensure your business is following best practices. Contact MNCLS today for proactive legal guidance.