Minnesota has a uniquely complicated statute governing drug and alcohol testing in the workplace. Minn. Stat. Section 181.950-957.  The statute can be a surprise for out of state employers with employees in Minnesota, as well as Minnesota-based companies. And non-compliance can be expensive. Employees who are tested in violation of the statutory requirements can potentially seek damages for lost wages, emotional distress, punitive damages and attorneys’ fees.  Here are the top ten ways employers run into trouble:

1. Testing an employee or applicant without any drug and alcohol testing policy.

2. Firing an employee after testing positive without allowing the employee to first seek and complete treatment.

3. Disclosing the results of a drug or alcohol test to persons without a need to know. (Breach of confidentiality)

4. Testing an applicant before making the decision to hire (and then not hiring the applicant although they passed the test)

5. Not complying with technical notice and posting requirements (i.e. right to confirmatory retest, right to request copy of lab results, posting a notice of the policy in the workplace)

6. Not setting parameters on treatment and return to work.

7. Applying federal drug testing requirements and procedures for commercial drivers to non-drivers, and vice-versa.

8. Testing an employee in an arbitrary and capricious manner without reasonable suspicion.

9. Testing an employee or applicant without a Minnesota-compliant drug and alcohol testing policy, and not keeping a signed acknowledgment.

10. Performing testing on site, using breath tests, or charging the employee for the test.

11. Bonus: Testing an employee after admitted possession or use of illegal drugs instead of moving straight to termination.

There are many ways to run in trouble when drug or alcohol testing in the workplace in Minnesota, so be careful!