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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

What Do They Have in Mind? Minnesota’s Drug -Testing Law Turns 20

 

For 20 years Minnesota has had one of the most complicated and employee-friendly drug-testing laws in the country. While questions of when federal law preempts the Minnesota statute remain, employers are well-advised to proceed carefully if they require applicants or employees to undergo drug testing.

This September marks the 20th anniversary of Minnesota’s Drug and Alcohol Testing in the Workplace Act (sometimes referred to as “DATWA”) which is codified at Minn. Stat. §181.950 et seq. This article examines the 20-year history of this unique piece of legislation as well as a number of recent court decisions concerning damages, federal preemption and other issues.

Upon its enactment on September 1, 1987, DATWA immediately became one of the most restrictive drug-testing laws in the country.1 Its passage meant that employers in Minnesota who wished to test employees for drug use had to follow a number of complicated requirements or risk costly litigation. National companies with employees in Minnesota were especially likely to run afoul of this state law.

Many states do not have laws on employee drug testing. Only about 27 states, Puerto Rico, and two cities known for their liberal activism (San Francisco and Boulder, CO) have enacted specific statutes, ordinances, or regulations on drug testing in the workplace.2 Of those states that have enacted drug-testing statutes, some are considered “anti-drug-testing” states and some are considered “pro-drug-testing” states.3 Minnesota, together with much of New England and Puerto Rico, is viewed as “anti-drug testing.” Many states in the Rockies and the South are considered “pro-drug testing.” (The map showing distribution of pro- and anti-drug-testing states bears a remarkable resemblance to the map showing how the Electoral College voted in the 2004 presidential election.) Minnesota’s Drug and Alcohol Testing in the Workplace Act is obviously designed to protect the employee from improper or inaccurate testing through strict requirements and procedures.4 The statute therefore has an “anti-drug-testing” impact since it is burdensome to achieve compliance, which discourages employers from testing.

At the time the Minnesota Legislature began experimenting with drug and alcohol testing of employees in 1987, the United States was in the midst of a crack-cocaine epidemic, especially in its inner cities. America’s First Lady Nancy Reagan even appeared on the television show “Different Strokes” in the mid-1980s to emphasize her “Just Say No” to drugs campaign. Now, 20 years later, when Minnesota employers discuss illegal use of drugs, concern usually centers on the use of “meth” — methamphetamine, also known as “crystal meth.”5 The use of meth has become a significant problem for Minnesota employers. According to some statistics, a meth user is five times more likely to be absent from work than a non-using worker, and generally is more likely to engage in violent behavior in the workplace.6 The meth explosion, along with increasing use of steroids and performance-enhancing drugs in professional sports, has sparked renewed interest in employee drug testing and focused attention on the 20-year-old DATWA statute.

The Requirements of DATWA

According to DATWA there is no legal duty under state law to test employees for drugs or alcohol.7 But if a Minnesota employer chooses to test its employees, it must comply with the requirements of DATWA. Federal law, on the other hand, requires employee drug testing in some circumstances, most notably for commercial drivers. This creates a tension which DATWA attempts to address by indicating that federal law preempts the state law.8 The scope of this preemption has been the topic of recent court decisions discussed in more detail below.

The starting point of the statute is the requirement of a written policy. All employers wishing to test under DATWA must create a written policy and provide written notice of the policy to all affected employees. The policy must contain the following information:

 

a. The employees who are subject to testing;
b. The circumstances under which testing may be requested or required;
c. The right of an employee to refuse testing and the consequences of refusal;
d. The disciplinary action that may be taken based on a confirmatory test verifying a positive test result;
e. The right of the employee to explain a positive test result; and
f. Any other appeal procedures.9

 

Prior to being tested, the employee must be given a form to acknowledge receipt of the policy.10

The law also creates several requirements regarding testing procedures. For example, testing on-site or at the workplace is not allowed. Employers must use a licensed, accredited, or certified laboratory and follow specific chain-of-custody procedures and drug-test results must be provided to the employee in writing within three working days after receipt. These technical requirements can be important. Many employers are currently encountering problems with dilute specimens, in part as a result of products marketed over the internet to foil drug testing, but DATWA offers little specific guidance on how to handle this issue. Practitioners should also note that that a portion of the DATWA statute (Minn. Stat. §181.953, Subd. 1) concerning laboratory certification refers to federal guidelines that have since been abolished or updated, leaving a gap in the law which the Legislature might wish to address in a future session.

DATWA also limits testing only to specific circumstances, namely:

 

a. When the subject is a job applicant;
b. As part of a routine physical examination no more than once a year;
c. On a random basis only for “safety-sensitive” positions (or professional athletes);
d. When the employer has “reasonable suspicion” (for example, after an accident or injury); or
e. Following the employee’s participation in a treatment program.11

 

The definitions of terms like “safety-sensitive” and “reasonable suspicion” have been the subject of some litigation. For example, in Newmech Cos. v. Youness, 2001 Minn. App. LEXIS 1056 (09/18/01), a journeyman pipefitter was found to be entitled to unemployment benefits after being discharged for refusing to provide urine samples because of a perceived lack of privacy due to 3M security cameras in the area. The Court of Appeals held that the employee was not in a “safety-sensitive” position and that he raised valid concerns about privacy and procedure, and therefore did not intentionally disregard the employer’s standards of behavior.

The definition of “safety-sensitive” was also at issue in Law Enforcement Labor Services, Inc. Local 158 v. Sherburne County, 695 N.W.2d 630 (Minn. App. 2005), along with the impact of collective bargaining on drug-testing policies. In that case, the county proposed to implement random testing of employees in safety-sensitive positions. The union sought to block the policy under the Minnesota Public Employment Labor Relations Act as being the subject of mandatory collective bargaining. The appellate court held that the establishment of a random drug-testing policy for employees in safety-sensitive positions was not subject to collective bargaining but that the implementation of the policy was and therefore the county committed an unfair labor practice.

A terminated employee of a public housing authority unsuccessfully claimed that the employer’s request that he take a drug test was unreasonable in Sledge v. Minneapolis Pub. Hous. Authority, 2006 Minn. App. LEXIS 2006. The employer had a proper written policy and elected to test the employee for “reasonable suspicion.” The pro se litigant challenged the basis for reasonable suspicion but failed to provide evidence sufficient to avoid summary judgment.

Damages for Wrongful Termination

From an employment law standpoint, the most important provision of DATWA is that employers may not discharge or discipline an employee on the basis of a positive test result without first verifying it with a confirmatory test. The employee must also be given a chance to disclose any over-the-counter or prescription medicine that might explain a positive test result. Finally, even if the confirmatory test is positive, the employer may not discharge or discipline an employee for whom the positive test result on the confirmatory test was the first such result without giving the employee the opportunity to participate in a rehabilitation program.12 This requirement is usually the most surprising to employers and the basis of many DATWA lawsuits.

An employee who feels that he or she was tested or terminated in violation of the law can file suit for actual damages, reinstatement, and attorneys fees. A recent decision, Belsky v. Worldwide Parts & Accessories Corp., 2006 U.S. Dist. LEXIS 14758 (03/17/06), also allowed claims for punitive damages and emotional-distress damages. Belsky involved an individual who passed a drug test but was not offered a job. He asserted that he had been promised a job contingent on passing the drug test. He brought claims of age discrimination, promissory estoppel, breach of contract, and violation of DATWA. The court found for the individual on the DATWA claim but dismissed the other claims. The court noted that the statute was clear and the violation was not merely “technical” and went so far as to allow the plaintiff to plead emotional distress damages and punitive damages. Belsky is an important decision because it makes clear that preemployment drug and alcohol testing should not be performed unless the company truly intends to hire that person contingent on passing the test.

Not all plaintiffs bringing claims under DATWA have been successful. In In re Copeland, 455 N.W.2d 503 (Minn. App. 1990), a Minneapolis police officer was discharged for gross misconduct after testing positive for cocaine. The Court of Appeals upheld a Civil Service Commission decision that the “clear legislative intent” behind DATWA was to prevent discharge based “solely” on drug test results and not to prohibit discharge for an employee’s conduct caused by drug use, an important distinction. Similarly, in City of Minneapolis v. Johnson, 450 N.W.2d 156 (Minn. App. 1990), the Minnesota Court of Appeals held that DATWA does not bar the discharge of an employee for reasons independent of the test result. The plaintiff (also a Minneapolis police officer) admitted using cocaine and failing to intervene or report suspected cocaine use at a party.

Hanson v. City of Hawley, 2006 Minn. App. LEXIS 435 (05/02/06) (unpublished), was yet another police officer case issued last year. In that case, a city police chief was terminated under a “no tolerance” provision when, after a minor car accident, he tested positive for alcohol at a level of .024 blood alcohol content after having ingested cough medicine. The chief argued that the city failed to follow DATWA by not performing the necessary confirmatory retest. The court affirmed the dismissal and followed Johnsonsupra, for the proposition that a police officer can be terminated for reasons other than the positive drug test, in this case, violation of the zero-tolerance policy.

In Kise v. Product Design & Engineering, 453 N.W.2d 561 (Minn. App. 1990), the Court of Appeals affirmed the trial court’s judgment that the employer had not violated the drug-testing statute when it terminated an employee after he refused to take a drug test following an on-the-job injury. The employee claimed that the employer requested him to undergo testing on an “arbitrary and capricious” basis in violation of §181.951, subd. 1(c) and that the written policy was insufficiently vague. The court disagreed, despite the fact that some employees who were injured were not tested.

Preemption Questions

One of the most common areas of disputes in state drug-testing law centers on federal preemption. In 1991 Congress passed the Federal Omnibus Transportation Employee Testing Act (“FOTETA”). The FOTETA extended mandatory drug and alcohol testing to all drivers of commercial vehicles, generally defined as vehicles weighing over 26,001 pounds, carrying hazardous materials, or carrying 16 or more passengers (with the driver), including school buses and many “smaller” delivery trucks.13 This law kicked off a frenzy among small- and medium-sized companies with one or more large delivery trucks and had them scrambling to join consortiums in order to create pools for random drug and alcohol testing. It also exacerbated employer confusion over the tension between the state law, which discourages voluntary testing of employees, and the federal law which requires testing for certain employees. This dichotomy is still creating confusion today, although a recent 8th Circuit decision, discussed below, has helped clarify the issue.14

The first reported DATWA case was also the first case to addresse the issue of federal preemption. In Follmer v. Duluth, Missabe & Iron Range Ry. Co., 585 N.W.2d 87 (Minn. App. 1988), the plaintiff-employee sought and received $11,000 in back pay damages for violation of DATWA. The appellate court affirmed the award, holding that federal law governing railroad employees did not preempt state law with regard to the plaintiff, a track laborer injured on the job and tested positive for marijuana, because she was not a “covered employee” under the Federal Railroad Administration and the Hours of Service Act.

The next decision to examine preemption issues came down a few years later in Visnovec v. Yellow Freight System, Inc., 754 F. Supp. 142 (D. Minn. 1990) That case involved an employee’s claim15 of wrongful discharge in violation of DATWA. The court held that the law was partially preempted by the Labor Management Relations Act, where the rights involved were negotiable even though not incorporated into the collective bargaining agreement. The court suggested that the state claims were preempted by U.S. Department of Transportation regulations as well.

But the most salient decision on preemption questions was issued just last year by the 8th Circuit Court of Appeals in Belde v. Ferguson Enterprises, Inc., 460 F.3d 976 (8th Cir. 2006). In that case, the 8th Circuit affirmed a decision by the district court that the decision to terminate a warehouse worker (who also worked as a back-up driver) was governed by federal Department of Transportation (“DOT”) Regulations and not DATWA. The worker had refused to undergo random drug and alcohol testing because “[he] had a day of vacation, and [he] was out partying.” This decision is important because federal DOT regulations do not actually address the topic of employee discipline or termination; the cautious approach heretofore has been to draft DOT policies and procedures, as applied in Minnesota, to be compliant with DATWA, to the extent they are not inconsistent. Both DATWA itself and the DOT regulations state that DATWA is preempted only to the extent it is “inconsistent” with federal law. This could mean, for example, that a driver who tests positive for drugs under mandatory DOT testing for the first time could not be terminated without being offered counseling and a chance to return to work.

The lower court in Belde16 relied in part on a 1994 commentary that states: “Because of the nationwide application of the Federal program and the interstate nature of the operations covered, even minor requirements in the aggregate may become unduly burdensome. For this reason, we intend to scrutinize closely state and local requirements under this preemption authority.”17 The appellate court reached the same conclusion but pointed to another interesting provision of state law, Minn. Stat. §221.031, Subd. 10, which states, “A person who or political subdivision of the state which is required to comply with the alcohol and controlled substances testing requirements of Code of Federal Regulations, title 49, part 219, 382, 653, or 654, is exempt from sections 181.950 to 181.957 if the testing also complies with the procedures for transportation workplace drug and alcohol testing programs in Code of Federal Regulations, title 49, part 40.” (emphasis added). This language certainly reinforces the argument that employers who are required to perform DOT drug testing are exempted from every aspect of DATWA, including restrictions on employee termination, but employers should still be cautious on this point.

Conclusion

Minnesota’s DATWA is one of the strictest, most complicated, and employee-friendly drug-testing laws in the country. Employers have learned to live with it over the past two decades and will continue to grapple with it in years to come. Questions remain as to the scope of federal preemption, which we may hope will be further clarified in future court decisions. In the meantime, Minnesota employers are best advised that if they choose to test employees for drug use, they must do so carefully.

Notes
1 There have been a few amendments to DATWA since it was passed in 1987. The amendments of 1987 and 1988 primarily concerned the scientific and technical requirements for testing. In 1991, the law was changed to modify a number of definitions sections. Further changes in 1997 were largely organizational and nonsubstantive. Similarly, a 2004 amendment corrected a citation. In a nod to the Twins, Vikings, and other local sports franchises, random testing under §181.951, subd. 4, was amended to include “professional athletes” in 2005.

See generally, Mark A. de Bernardo and Matthew F. Nieman, Guide to State and Federal Drug Testing Laws, 14th Ed., V. 1 © 2006.

Id.

4 In 1992, the Minnesota Legislature went further in its efforts to protect workers from employers who disapproved of their use of alcohol or tobacco. It enacted what is sometimes known at the “lawful consumable products statute,” Minn. Stat. §181.938. The law makes it unlawful to refuse to hire, discipline or discharge an employee for use of “lawful consumable products,” which include food, alcoholic beverages, and tobacco, so long as such use is off company premises and during nonworking hours.

5 Presentation by Robert J. Shoemaker, Chisago County chief deputy sheriff and Kristin Nelson Fuge, assistant county attorney.

Id. But see Maura Lerner and Warren Wolfe, “Report: Meth Use Declines,” Minnesota Star-Tribune, June 19, 2007 (noting that “Meth is still the No. 1 drug” seen by law enforcement in Minnesota.).

7 Minn. Stat. §181.951, Subd. 7.

Id. at Subd. 1.

9 Minn. Stat. §181.952.

10 See generally, Minn. Stat. §181.953.

11 Minn. Stat. §181.951.

12 Minn. Stat. §181.953, Subd. 10.

13 The regulations are codified at 49 C.F.R. Part 40. See also Joseph G. Schmitt and Craig W. Trepanier, “It’s not just for Truckers any more: Mandatory Drug and Alcohol Testing,” 65 Hennepin Lawyer 20 (Jan.-Feb. 1996).

14 Practitioners should also note the existence of the Federal Drug-Free Workplace Act of 1988, 41 U.S.C. §701, which requires federal contractors to prohibit drugs in the workplace but does not address testing.

15 See Minn. Stat. §181.957(2), see also 49 C.F.R. §382.109.

16 Belde v. Ferguson Enterprises, Inc., 2005 U.S. Dist. LEXIS 18770.

17 “Limitation on Alcohol Use by Transportation Workers,” 59 Fed. Reg. 7302, 7317 (1994).


V. JOHN ELLA is an attorney at Jackson Lewis LLP in Minneapolis and has handled many drug testing cases. Jackson Lewis LLP is a national employment and labor law firm that publishes the Guide to State and Federal Drug Testing Laws in conjunction with the Institute for a Drug Free Workplace.


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