Minnesota will amend its drug testing law to permit oral fluid testing for drugs, cannabis and alcohol, effective August 1, 2024.

The Drug and Alcohol Testing in the Workplace Act (“DATWA”) currently requires employers who conduct drug and alcohol testing to use specific certified laboratories and to permit confirmatory re-testing after an applicant or employee tests positive. Under the new provision, oral fluid testing will be permitted for drugs, cannabis, and alcohol, and will not require the services of a testing laboratory. Moreover, employers will not be required to follow the written notice requirements for positive and negative test results and the right to confirmatory re-testing that DATWA requires for other types of drug and alcohol tests. 

“Oral fluid test” means analysis of saliva at threshold detection levels contained in the standards of one of the programs listed in DATWA (i.e., for drugs and cannabis: the National Institute on Drug Abuse, the College of American Pathologists, and the New York Department of Health; or for alcohol: the College of American Pathologists and the New York Department of Health).

Employees and applicants must be informed of the test result at the time of the oral fluid test. Within 48 hours of an oral fluid test that is positive, inconclusive or invalid, the employee or applicant may request drug, alcohol or cannabis testing at no cost to the employee or applicant using the services of a testing laboratory specified by DATWA. All of DATWA’s existing written notice requirements and rights to a confirmatory re-test will apply to such testing. 

Minnesota employers should consider whether oral fluid testing is right for their workplace. Employers will need to revise their written drug, cannabis and alcohol testing policies to incorporate the requirements for oral fluid testing.