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

Three Decades of DATWA

Minnesota’s Drug and Alcohol Testing in the Workplace Act continues to confound

Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA) turned 30 on September 1, 2017. Ten years ago, on the law’s 20th anniversary, one of us wrote for this publication, “For 20 years Minnesota has had one of the most complicated and employee-friendly drug testing laws in the country.”2 Now the Act is old enough to run for the U.S. Senate, and its third decade was far more momentous than its first two combined. DATWA provides important privacy protections for employees and serves important public policy purposes. Yet one thing remains the same after 30 years: The law is a burdensome trap for unwary employers.

The basics

DATWA governs when and how employers may test job applicants and employees for drugs and alcohol. Among other things, it requires employers to have a compliant written policy and only allows testing under certain circumstances. Its most notable provision prohibits an employer from terminating an employee for a first-time positive test result unless the employee has been offered a chance to attend treatment or counseling and has either refused or failed to complete such a program. An employee who has been tested or fired in violation of the statute can sue for actual damages, including lost wages, reinstatement, emotional distress damages, and punitive damages, and in some cases may recover his or her attorneys’ fees. Thus, non-compliance can be expensive. Practitioners who want to learn more about the specific requirements of the law should carefully review the language of the actual statute and see the 2007 article for more information.

Changing times

In 1987, when the law was passed, crack cocaine was considered a national scourge. In 2007, the use of methamphetamines was a rising concern. In 2017, marijuana is rapidly becoming legalized for recreational and medical use around the country, and opioid addiction is killing more Americans than car accidents.3 A recent survey by Quest Diagnostics showed that positive drug tests were at a 12-year high in 2016, as 4.2 percent of American workers had positive urine drug screens.4 Anecdotal evidence suggests some employers are having difficulty finding enough workers who can pass a drug test.

Wehlage v. ING Bank

A 2008 decision by U.S. Judge Patrick J. Schiltz in the case of Wehlage v. ING Bank opened the eyes of many Minnesota employment law attorneys to the risks of non-compliance with DATWA.5 The plaintiff in Wehlage was an IT employee of ING Bank. In 2005, he asked for and was allowed time off for treatment of his addiction to methamphetamines. After six weeks of treatment, he returned to work. In October 2005, he relapsed. After being alerted to his erratic behavior in the workplace, ING’s HR department directed Wehlage to take a drug test on November 9, 2015. Wehlage tested positive and was given the opportunity to attend treatment a second time. He entered treatment in mid-November. His doctor told ING the program would last until February 2006. His doctor extended the treatment twice, the second time through October 2006. In mid-February, Wehlage was approved for long term disability insurance benefits. On March 27, 2006, ING terminated Wehlage’s employment. Wehlage sued under DATWA alleging that he had not been allowed to complete treatment as required by the law. ING moved to dismiss, arguing that it had allowed him to complete his first round of drug treatment and allowed him over four months of further treatment. Wehlage filed a cross-motion for summary judgment and brought a motion to allow him to seek punitive damages.

Judge Schiltz denied the bank’s motion, granted judgment in Wehlage’s favor, and allowed him to plead punitive damages. The court read the statute to require an employer to provide the opportunity to attend a treatment program after the positive drug test. Importantly, the court also held that the statute did not impose a time limit for an employee to complete treatment, but noted that the law does give the employer some control over how long a treatment program will last, provided those limits are established up front.

The Minnesota Vikings vs. DATWA

The National Football League and Minnesota Vikings made case law, and thrust DATWA in the headlines of the sports section, from 2008 to 2011 as part of a circuitous legal contest that wound its way from the 8th Circuit Court of Appeals to trial and finally to the Minnesota Court of Appeals. The saga began in July 2008 when two then-defensive tackles for the Vikings, Kevin Williams and Pat Williams, provided urine samples as part of their annual physical for the upcoming football season. Both players tested positive for bumetanide, a diuretic specifically identified as a masking agent and prohibited by the NFL’s Policy on Anabolic Steroids and Related Substances. The players admitted taking a product known as “Star Caps” to lose weight in the off season in response to a financial incentive offered by the team for players to achieve a certain weight.

The players were suspended for four games. They challenged their suspensions in arbitration but the NFL upheld the ruling in December 2008. The players filed a lawsuit in Hennepin County District Court alleging violation of DATWA. The district court granted a temporary restraining order enjoining the NFL from enforcing the suspensions. The league removed the case to federal court and argued that the claims were preempted by the Labor Management Relations Act. The federal court declined to dismiss the DATWA claim and a related claim under the Lawful Consumable Products Act (LCA), Minn. Stat. §181.938.6 The 8th Circuit affirmed.7 The U.S. Supreme Court denied a petition for certiorari review.8

The case was remanded to state district court. On summary judgment following remand, the state judge dismissed the players’ LCA claim and many of the alleged DATWA violations. The court determined that the NFL did not notify the players of their positive confirmatory test results within three days, as required under DATWA, but found genuine issues of material fact as to whether the NFL was properly considered an “employer” under DATWA. The court also found genuine issues of material fact with respect to whether the NFL, assuming it was the players’ employer, violated the confidentiality requirements of DATWA.

In March 2010, Judge Gary Larson held a bench trial. On May 6, 2010, he found that the NFL was a joint employer of the Williamses and thus was subject to and had violated the notice requirements of DATWA. But Judge Larson found insufficient evidence to prove that the NFL violated the confidentiality provisions of DATWA. And, because the players could not show that they were injured by the proved DATWA violation, he ordered the temporary injunction dissolved and declined to enter permanent injunctive relief or award damages. The players then appealed the order to the Minnesota Court of Appeals. The court of appeals determined that bumetanide was not a controlled substance encompassed by DATWA and therefore DATWA did not govern the testing in the first place, and affirmed the decision not to enter permanent injunctive relief.9 Kevin Williams ended up suspended for only two games in 2011 because the collective bargaining agreement with the league had changed by that time. Pat Williams retired from professional football on March 23, 2011.

Who ultimately won this legal competition? The two players, sometimes referred to as the “Williams Wall,” delayed their suspension by three whole years, won at trial but were awarded no damages or injunctive relief, and lost their final contest before the court of appeals. One of their attorneys, Steven E. Rau, went on to become a U.S. magistrate judge. The league established precedent under federal labor law but was found to be an employer under state law.

Employers not required to follow U.S. DOT threshold detection levels

In 2012, the Minnesota Court of Appeals determined that employers can set their own threshold detection levels for positive drug tests without following detection levels set by the U.S. Department of Transportation. In Hudalla vs. TSI, Inc.10, a job applicant tested positive for marijuana with a marijuana-metabolite concentration of 10 ng/ml. After the employer withdrew the job offer, the applicant sued under DATWA, claiming that his test should not have been considered “positive” because it fell under the U.S. DOT’s positive confirmatory test cutoff level (15 ng/ml) for marijuana. The court disagreed, noting that DATWA defines a “positive test result” as “a finding of the presence of drugs, alcohol, or their metabolites in the sample tested in levels at or above the threshold detection levels contained in the standards of one of the programs listed in section 181.953, subdivision 1.”11 In turn, subdivision 1 identifies the Substance Abuse Mental Health Services Administration (formerly known as the National Institute on Drug Abuse) (NIDA/SAMHSA), College of American Pathologists (CAP), and New York State Department of Health (NYSDH). All three of the programs set threshold detection levels for marijuana testing, albeit by different methods. Because the laboratory used by the employer, MEDTOX Laboratories, had been certified by both CAP and NYSDH to detect marijuana metabolites as low as 2 ng/ml, the court considered the test “positive.”

Six-year statute of limitations

In 2013, the Minnesota Supreme Court held that a claim for wrongful discharge under DATWA is subject to a six-year statute of limitations.12 The Court ruled that claims under DATWA fall under the state’s six-year statute of limitations for actions “upon a liability created by a statute, other than those arising upon a penalty or forfeiture or where a shorter period is provided by section 541.07.” It determined that the exception provided in section 541.07 of Minnesota statutes, which would have resulted in a two-year limitation period, did not apply.

Medical cannabis comes to Minnesota

In 2014, the state of Minnesota legalized the use of medical cannabis, joining many other states in allowing some form of medical marijuana.13 The Medical Cannabis Act (MCA)14 defines “medical cannabis” as any species of the genus cannabis plant that is “delivered in the form of” a liquid; it does not allow smoking of the marijuana plant.

Patients must have a qualified medical condition from a list limited to the following: cancer, if the underlying condition or treatment produces severe or chronic pain, nausea or severe vomiting, cachexia, or severe wasting; glaucoma; HIV/AIDs; Tourette’s syndrome; amyotrophic lateral sclerosis; seizures, including those characteristic of epilepsy; severe and persistent muscle spasms, including those characteristic of multiple sclerosis; inflammatory bowel disease, including Crohn’s disease; or terminal illness, with a probable life expectancy of under one year, if the illness or treatment produces severe or chronic pain, nausea or severe vomiting, cachexia, or severe wasting. In 2015 the law was expanded to include “intractable pain.” Effective August 1, 2017, post-traumatic stress disorder (PTSD) is now included.

The MCA includes specific employment protections for qualified patients. It states that: “an employer may not discriminate against a person in hiring, termination or any term or condition of employment, or otherwise penalize a person,” if the discrimination is based upon the person’s status as a qualified patient or upon a qualified patient’s positive drug test for cannabis components or metabolites, “unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.” This protection has an exception if the failure to discriminate “would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations[.]” The MCA further provides that an employee who is required to undergo employer drug testing pursuant to DATWA may present verification of enrollment in the medical cannabis patient registry as part of the employee’s explanation under DATWA section 181.953, subd. 6, which allows employees to explain a positive drug test result.

The MCA creates challenges for Minnesota employers striving to maintain a drug-free workplace. If an employee uses or possesses marijuana on the job, drug testing should be unnecessary prior to the imposition of discipline. Determining whether an employee is “impaired” by marijuana, however, is difficult. Unlike alcohol, it can stay in one’s system for days, and a qualified employee testing positive for marijuana could claim he or she lawfully used cannabis oil the night before. Likewise, an applicant who is a qualified patient could not be rejected for testing positive for marijuana, even if he or she was applying to work in a safety-sensitive position (other than a position governed by federal drug testing regulations).

Olson v. Push expands reach of DATWA

DATWA applies to “any employer doing business in Minnesota.”15 In Olson v. Push, Inc.,16 the 8th Circuit Court of Appeals interpreted this provision broadly, holding that a Wisconsin company that hired an employee to work in West Virginia was subject to the requirements of the statute because the employer did business in Minnesota.17 The 8th Circuit concluded that “DATWA’s broad definition of ‘employer’ clearly and unambiguously includes all entities ‘doing business’ in Minnesota.”18 In Push, the employee, Olson, was tested in Minnesota and at the time was a resident of Minnesota, although he was working in West Virginia when his employment was terminated.

The 8th Circuit’s holding may seem straightforward—that the law means what it says. The consequences of the decision, however, remain unclear. A company based in New York with a major facility in Rochester, Minnesota, does business in Minnesota. But is a New York employee of that company who has never been to Minnesota protected by DATWA? The 8th Circuit addresses this absurd result by pointing out that the definition in the statute is “constrained by the bounds of due process.” For the law to apply, it noted, Minnesota must have a significant contact or a significant aggregation of contacts with the parties or the underlying facts giving rise to the litigation. The authors have faced the issue of a Minnesota resident invoking DATWA protections despite working across the border for a Wisconsin company. Scenarios involving even more complicated facts are likely to arise and will require scrutiny. At a minimum, employers should seek to comply with DATWA whenever the testing is performed in Minnesota or the applicant/employee resides in Minnesota. The Push decision also highlights the mistake some employers make in allowing an employee to start work before the test results are received. Because Push allowed Olson to start his employment, he was endowed with the enhanced protections of an employee. The Push decision means that many employers, including those based in other states, are going to be unpleasantly surprised by the prospect of potential liability under DATWA in the future.

Federal preemption

Federal law requires drug and alcohol testing of safety-sensitive transportation employees in the aviation, trucking, railroad, mass transit, pipeline, and maritime industries. The courts have clarified under what circumstances such testing must comply with DATWA.

The 8th Circuit held in 2006 that DATWA does not apply to mandatory drug testing of drivers of commercial vehicles based on two specific Minnesota statutes exempting such testing from DATWA.19 Minn. Stat. §221.031, subd. 10 provides that employers testing under federally mandated drug and alcohol testing regulations promulgated by the Federal Railroad Administration (FRA), Federal Motor Carrier Safety Administration (FMCSA), or Federal Transit Administration (FTA) are exempt from DATWA if such testing complies with the procedures for transportation workplace drug and alcohol testing programs in Code of Federal Regulations, title 49, part 40 (commonly referred to as “Part 40”). Minn. Stat. §221.605, subd. 1(b) similarly provides that an interstate carrier or private carrier engaged in interstate commerce who complies with federal regulations governing testing for controlled substances and alcohol is exempt from DATWA unless the carrier’s drug testing program provides for testing for controlled substances in addition to those listed in Part 40.

The question of federal preemption arose in a 2015 case involving a flight attendant who was required to be drug tested under regulations promulgated by the Federal Aviation Administration (FAA).20 After testing positive on a random drug test, the flight attendant was terminated and threatened a lawsuit under DATWA. Sun Country Airlines, the employer, filed suit first, in federal court, seeking a declaratory judgment that DATWA was completely preempted in this circumstance. The court discussed the difference between the narrow type of “conflict preemption” and the broader implications of “field preemption.” Here, it concluded, the FAA has “preempted the field of drug testing of airline personnel” and DATWA was therefore preempted in all aspects. Although the holding appears limited to preemption by FAA regulations, which include a very broad express preemption provision, there is a good chance that courts will continue to apply the same reasoning to preemption by other federal regulations.

Getting it right from the employer’s perspective

In affirming dismissal of a wrongful discharge claim under DATWA in 2015, the Minnesota Court of Appeals showed how early involvement by the employer in determining a course of treatment is important, and led to a different result than Wehlage, discussed above.21 The plaintiff in Jones v. Green Bay Packaging tested positive for marijuana after a workplace accident. Green Bay Packaging presented Jones with a conditional reinstatement agreement (CRA) which provided that Jones could retain his employment if he (1) immediately submitted to evaluation by a chemical dependency treatment center approved by Green Bay Packaging, and (2) successfully participated in treatment at that treatment center for the amount of time recommended by the center. Jones signed the CRA on May 22, but informed Green Bay Packaging on May 24 that he wished to receive his treatment at a facility different from what he had agreed to. Green Bay Packaging denied the request and told Jones that he would be fired if he did not participate in the recommended treatment program. Jones did not participate in the treatment program. Green Bay Packaging then terminated Jones’s employment and Jones sued.

The issue for the court was one of statutory interpretation, specifically the phrase “as determined by the employer” (referring to the scope of treatment). The court of appeals held that “[t]he plain language of this phrase provides that the employer must give the employee the opportunity to attend either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate, indicating only that the employer is tasked with deciding whether counseling or rehabilitation is more appropriate for the employee.” The result is that employees do not have the unfettered right to choose a treatment center or treatment program.

The decision highlights the critical role of employer engagement in complying with DATWA. Even if an employer has a compliant policy and conducts testing in a compliant manner, it must still interact with the employee who tests positive to work out and agree on a treatment program. The decision also highlights the utility of a written return-to-work agreement or, in this case, a CRA. DATWA does not require use of a CRA or return-to-work agreement, but employers in Minnesota often rely on them to confirm that all parties understand their rights and obligations in this situation, and the court’s implicit endorsement in Green Bay Packaging makes this a best practice for all Minnesota employers.

Conclusion

DATWA is too complicated and burdensome for employers and poses a trap for unwary employers, especially those from outside of Minnesota that may not be familiar with the law. Despite the number of clarifying court decisions interpreting this statute, many unanswered questions remain. (See sidebar, “Ways to Fix DATWA.”) Further, drug and alcohol testing science has also evolved in the last 30 years and Minnesota law has not kept up. It is time that this 30-year old statute was revisited and amended by the Minnesota Legislature.

Ways to Fix DATWA

1. Project testing. DATWA only allows drug and alcohol testing in five scenarios: (A) applicant testing, (B) testing as part of an annual physical examination, (C) random testing for safety-sensitive positions or professional athletes, (D) testing for reasonable suspicion (including post-accident and post-injury testing), and (E) testing as part of or following a treatment program.22 Often, however, employers (including but not limited to staffing agencies, consulting companies, and vendors performing services at their customers’ work sites)  are required to have an existing employee tested before allowing them to work on a customer project, contract, or work site. Because DATWA does not clearly allow “project testing,” employers are put in a tough spot, and so are their employees who want to work on that project and are willing to take a test. The Minnesota Legislature should consider adding a provision for this type of testing.

2. Adulteration and cheating. DATWA does not say what an employer should or can do if an employee cheats on his test or is unable to provide an adequate sample for testing. For example, an employee may provide a dilute urine sample by consuming large amounts of water immediately prior to the test, or the employee may suffer from what is referred to as “shy bladder” syndrome. Cheating can also result in adulterated or substituted samples that are out of temperature range. Federal regulations promulgated under U.S. Department of Transportation mandatory testing programs of safety-sensitive transportation workers provide guidelines on how and under what circumstances to re-test or address cheating. It may make sense for the Legislature to adopt some or all of the procedures set forth in the federal regulations in 49 C.F.R. Part 40.

3. Breath testing. DATWA does not allow breath testing for alcohol because the law requires the employer to retain samples and provide them for analysis by a certified laboratory.  In practice, this means that alcohol testing must be done with a blood sample, which is more intrusive and expensive, or with a urine sample, which does not show the amount of alcohol in the bloodstream and does not correlate with impairment.  The Legislature  should consider allowing breath testing and address testing of saliva and hair samples as well.

4. Thresholds. DATWA should include minimum threshold detection levels. Currently any detectable amount of drugs or alcohol above the thresholds established by SAMHSA/NIDA, CAP, and NYSDH could potentially be considered a “positive” test under the logic of the Hudalla decision. The Legislature should consider adopting the threshold detection levels set forth in 49 C.F.R. Part 40.

5. Medical Review Officers. DATWA does not contemplate the use of Medical Review Officers (MROs), which are required for federally mandated drug and alcohol testing. This leads to confusion by employers, third-party administrators, and laboratories, as well as unintentional non-compliance. Minnesota should consider allowing the use of MROs to deliver and explain test results to employees.

6. Collection, laboratory, and MRO procedures. In general, DATWA has not kept up with the modern science of drug and alcohol testing when it comes to collection, laboratory, and MRO procedures. The Legislature would be well advised to consider adopting many of the procedures set forth in 49 C.F.R. Part 40 with respect to non-regulated testing under DATWA. In addition to providing additional safeguards for employees, this simple step would result in uniformity for both DOT and non-DOT testing, eliminating much confusion for employees, employers, HR personnel, third party administrators, collection sites, laboratories, and MROs.

7. Medical cannabis. The Legislature should address medical marijuana in DATWA by, at a minimum, cross-referencing current provisions in the MCA which implicate drug testing. The Legislature should consider allowing employers to decline to hire applicants or to discipline employees testing positive for cannabis, even if they are in the patient registry, if they work in a safety-sensitive position.

8. Definition of “employee.” Minnesota should consider fixing the problem exposed by Push v. Olson to define “employee” as one working in Minnesota or applying to work in Minnesota.

9. Preemption. Minnesota should unambiguously preempt testing of any employee subject to federally mandated drug and alcohol testing regulations. At a minimum, the Legislature should move or cross-reference within DATWA the exemptions codified at Minn. Stat. §§221.031, subd. 10 and 221.605, subd. 1(b). Many employees, employers, and even lawyers are not even aware of these exemptions. The Legislature should further consider expanding the exemptions to include all federally mandated drug and alcohol testing (not merely testing under FMCSA, FRA, and FTA regulations).

10. Compliance with federal OSHA guidelines. The Legislature may want to revise the “reasonable suspicion testing” definition or create new “post-accident and post-injury testing” definition that is consistent with new federal OSHA anti-retaliation requirements. OSHA has taken the position that employers must have an objectively reasonable basis for testing employees following an accident or injury, taking into consideration factors such as whether the employer has a reasonable basis for concluding that drug use could have contributed to the injury or illness, whether other employees involved in the incident that caused the injury were also tested (or whether only the employee who reported an injury was tested), and whether the employer has a heightened interest in determining if drug use could have contributed to the injury due to the hazardousness of the work.

11. Treatment program duration. In response to the Wehlage holding, the state should consider a time limit on completion of treatment.

12. Posting of the notice. Employers should be allowed to “post” notice of their drug/alcohol testing policy on a company intra-net system or distribute it electronically rather than requiring a poster to be hung in a breakroom.

13. Statute of limitations, punitive damages, and attorney’s fees. The Legislature might consider shortening the statute of limitations from six years to two, prohibiting punitive damages for violations of DATWA, or tightening the requirement for awarding attorneys’ fees.

Ways to Fix DATWA Note: The authors have been involved in an MSBA working group—along with representatives from the plaintiff’s bar and organized labor—to review possible proposed amendments to DATWA. The proposals below do not represent the recommendations of MSBA or that committee, but rather the individual views of the authors.


V. JOHN ELLA and CRAIG W. TREPANIER are shareholders at Trepanier MacGillis Battina, P.A. in Minneapolis. They regularly represent employers with drafting federal and state drug testing policies and defending claims under DATWA and frequently speak and write about workplace drug and alcohol testing issues. Mr. Trepanier served as 2016-2017 Chair of the MSBA Labor and Employment Law Section.


 

Notes

1 Minn. Stat. §§181.950-957.

2 V. John Ella, “What do they Have in Mind? Minnesota’s Drug-Testing Law Turns 20,” Bench & Bar of Minnesota, Sept. 2007.

3 See, e.g., Kate Moisse, “Drug Deaths Exceed Traffic Deaths,” ABC News, 9/11/2011, citing statistics from the U.S. Centers for Disease Control and Prevention.

4 “Lisa Nagele-Piazza, “Failed Workplace
Drug Tests Reach 12-Year High,” 5/24/2017,
https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/positive-drug-test-rates-climb.aspx.

5 Wehlage v. ING Bank d/b/a ING Direct, No. 07-CV-1852 (PJS/RLE), 2008 WL 4838718,
(D. Minn. 11/5/2008). (Full disclosure: V. John Ella represented the defendant in that case.)

6 Nat’l Football League Players Ass’n v. Nat’l Football League, 654 F.Supp.2d 960, 967
(D. Minn. 2009).

7 Williams v. Nat’l Football League, 582 F.3d 863 (8th Cir. 2009).

8 Id., ––– U.S. ––––, 131 S. Ct. 566, 178 L.Ed.2d 413 (Nov. 8, 2010).

9 Williams v. The National Football League, 794 N.W.2d 391 (Minn. Ct. App. 2011).

10 Hudalla v. TSI, Inc., No. A11-927, 2012 WL 987286 (Minn. Ct. App. March 26, 2012).

11 Minn. Stat. §181.950, subd. 10.

12 Sipe v. STS Manufacturing, Inc., 834 N.W.2d 683 (Minn. 2013).

13 See also V. John Ella, “Law Protects Employees who use Medical Marijuana,” Minnesota Lawyer, 6/19/2014 and Kevin Reach, “High Hopes: The Future of Medical Marijuana in Minnesota,” Bench & Bar of Minnesota, June 2014.

14 Minn. Stat. §152.22-37.

15 Minn. Stat. §181.950, subd.  7.

16 Olson v. Push, 640 Fed. Appx 567, No. 14-3160 (8th Cir. 2016).

17 See also Dale L. Deitchler and Nancy N. Delogu, “DATWA’s Reach Grows,”
Bench & Bar of Minnesota, June 2016.

18 Id., 640 Fed. Appx. 567, 569.

19 Belde v. Ferguson Enterprises, Inc., 460 F.3d 976 (8th Cir. 2006) (discussing Minn. Stat. §§221.031, subd. 10 and 221.605, subd. 1(b));  see also “What do they have in mind,” note 1 supra.

20 MN Airlines, Inc., d/b/a Sun Country Airlines v. Levander, No 15-CV-2454 (PAM/BRT)
(D. Minn. 8/28/2015).

21 Jones v. Green Bay Packaging, Inc., No.
A15-0017 (Minn. Ct. App. 8/10/2015).

22 Minn. Stat. §191.951.

 

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