|
|
|
|
|
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. By
V. John Ella 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:
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:
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 Johnson, supra, 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 2
See generally, Mark A. de Bernardo and
Matthew F. Nieman, Guide to
State and Federal Drug Testing Laws, 14th Ed., V. 1 © 2006. 3
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. 6
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. 8
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). |
