Drugs, Alcohol and Smoking: Minnesota

Drugs, Alcohol and Smoking requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: XpertHR Editorial Team

Summary

  • Minnesota employers may implement drug-free workplace policies. See Drugs and Alcohol.
  • Minnesota permits the use of medical cannabis by registered patients with a qualifying medical condition. See Medical Marijuana.
  • Employers may implement and enforce policies that prohibit the use, sale, possession, distribution, purchase and cultivation of drugs and alcohol in the workplace. See Drug and Alcohol Policies.
  • Employers may conduct drug and alcohol testing of employees, job applicants and independent contractors, but must comply with the Drug and Alcohol Testing in the Workplace Act. See Drug and Alcohol Testing.
  • The Minnesota Clean Indoor Air Act bans smoking in all places of employment. See Smoking.
  • Minnesota protects employees' use of lawful consumable products, such as alcohol and tobacco. See Off-Duty-Conduct.
  • Employers are required to post applicable signs indicating where smoking is prohibited and permitted. See Postings.
  • Employers are not required to have a smoking policy, but may implement one that prohibits smoking in the workplace. See Smoking Policies.

Drugs and Alcohol

In Minnesota, an employer may implement drug-free workplace policies and may require employees to disclose prescription drugs that may adversely affect judgment, coordination or the ability to perform job duties.

Employers that have federal contracts or that receive federal funds must comply with the federal Drug-Free Workplace Act of 1988. This act requires covered employers to take measures to maintain a drug-free workplace, including adopting a policy prohibiting drug use in the workplace.

Medical Marijuana

Minnesota permits the use of medical cannabis by registered patients with a qualifying medical condition. Qualifying medical condition means a diagnosis of any of the following conditions:

  • Cancer, if the underlying condition or treatment produces one or more of the following:
    • Severe or chronic pain;
    • Nausea or severe vomiting; or
    • Cachexia or severe wasting;
  • Glaucoma;
  • HIV or AIDS;
  • Tourette's syndrome;
  • Amyotrophic lateral sclerosis;
  • Seizures, including those characteristic of epilepsy;
  • Severe and persistent muscle spasms, including those characteristic of multiple sclerosis;
  • Crohn's disease;
  • Terminal illness, with a probable life expectancy of under one year, if the illness or its treatment produces one or more of the following:
    • Severe or chronic pain;
    • Nausea or severe vomiting; or
    • Cachexia or severe wasting;
  • Intractable pain;
  • Post-traumatic stress disorder;
  • Autism;
  • Obstructive sleep apnea;
  • Alzheimer's disease;
  • Age-related macular degeneration;
  • Chronic pain; or
  • Any other medical condition or its treatment approved by the commissioner.

+Minn. Stat. § 152.22, subd. 14. See also Minnesota Department of Health for additional information on qualifying conditions as it considers petitions to add new conditions annually.

However, while registered patients may legally use medical cannabis, the law does not permit:

  • Undertaking any task while under the influence of medical cannabis that would constitute negligence or professional malpractice;
  • Vaporizing medical cannabis in a place of employment; and
  • Operating, navigating or physically controlling a motor vehicle, etc., or working on transportation of property, equipment or facilities while under the influence of medical cannabis.

+Minn. Stat. § 152.23.

A Minnesota 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 patient enrolled in a state registry program or a patient's positive drug test for cannabis components or metabolites. A registered patient may provide verification of their enrollment in the qualifying patient registry as part of their explanation for a failed drug test.

However, an employer may take disciplinary action if the employee used, possessed or was impaired by medical cannabis on the employer's premises or during work hours. In addition, the law permits an employer that has federal contracts or is otherwise required under federal regulations to maintain a drug-free workplace to take action even if such action is based upon the person's status as a qualifying patient.

+Minn. Stat. § 152.32.

Note that while the use of medical marijuana may be legal under Minnesota law, it is still a Schedule I substance under the Federal Controlled Substances Act and, therefore, illegal under federal law. In other words, regardless of state law, employers may follow federal law in prohibiting marijuana use in the workplace.

Additionally, federally mandated drug-free workplace programs, including those subject to the jurisdiction of the US Department of Transportation (DOT), require employers to report positive and negative test result data for marijuana, regardless of whether an employee's use of marijuana is for medicinal purposes. The reportable data does not include the identity or personal information of individuals tested.

Drug and Alcohol Policies

Employers may implement and enforce policies that prohibit the use, sale, possession, distribution, purchase and cultivation of drugs and alcohol in the workplace. These policies may also require employees to report to work and, while at work, remain completely free of illegal drugs, abused or nonprescribed prescription drugs and alcohol.

Employers should communicate the drug-free workplace policy to employees at the start of employment and at least annually. Further, employers covered under the federal Drug-Free Workplace Act must also obtain a signed acknowledgment of the employee's receipt of the policy.

Drug and Alcohol Testing

Employers located in or doing business in Minnesota that choose to conduct drug and alcohol testing of employees and job applicants (i.e., prospective employees) must comply with the state's Drug and Alcohol Testing in the Workplace Act (DATWA). There is no mandatory requirement for employers to conduct drug and alcohol testing under the DATWA. +Minn. Stat. § 181.951, subd. 7.

Employees and job applicants as defined in DATWA include independent contractors and persons working for independent contractors. +Minn. Stat. § 181.950.

Any employer or laboratory that conducts drug and alcohol testing that is not compliant with the DATWA and other state requirements may be exposed to civil action brought by employees or job applicants for damages allowed by law.  +Minn. Stat. § 181.956.

Employers covered under mandatory drug and alcohol testing programs regulated by the federal government, (e.g., employers regulated under the DOT, Department of Defense contractors and the nuclear industry) must follow federal requirements for drug and alcohol testing programs. +Minn. Stat. § 181.957.

Written Drug and Alcohol Testing Policy

Employers must implement a written drug and alcohol testing policy that is compliant with the DATWA before any testing may occur. At a minimum, the policy must include the following elements:

  • Which individuals are subject to the policy;
  • The circumstances under which testing may be required or requested;
  • The right of the individual to refuse to be tested;
  • The consequences of refusing to be tested;
  • Disciplinary or other adverse action that could result from a confirmed positive test result;
  • The right of the individual to explain a confirmed positive test result or to request and pay for a confirmatory retest; and
  • Any available appeal procedures.

The employer must give written notice of the policy to:

  • Current employees, when the policy is adopted;
  • Employees who transfer from nonaffected to affected positions, at the time of the transfer; and
  • Job applicants given a job offer that is made contingent on passing the test, before the test occurs.

The employer must post a notice in an appropriate and conspicuous location at the workplace, stating that the policy exists and that employees and applicants can inspect the policy during regular work hours in the employer's personnel office or other suitable locations.

+Minn. Stat. § 181.952.

Before asking an employee or applicant to undergo a drug or alcohol test, the employer must provide a written form for the individual to acknowledge that they have seen the employer's written policy. +Minn. Stat. § 181.953, subd. 6.

Test Sample Collection and Processing

The DATWA prescribes specific procedural requirements that ensure any testing that results in adverse action against an employee is yielding a correct and reliable result.

An employer must use a testing laboratory that is accredited, certified, or licensed by federal or state accrediting agencies, such as the National Institute on Drug Abuse. The laboratory must follow strict chain-of-custody procedures outlined in the DATWA or as prescribed by the accrediting or licensing agency.

The employer must also establish its own reliable chain-of-custody procedures to ensure proper recordkeeping, handling, labeling and identification of the samples to be tested.

The employee must be given written notice of a test result report within three working days of the employer's receipt of the result. Any time within three working days after the employee receives notice that a confirmatory test has shown a positive result, the employee may submit information to the employer that might explain the result. If an employee submits medical information to explain a positive result, such as medications the employee is taking, the employer may not take any adverse action based on that information unless the employee had an affirmative duty to disclose the information before, upon or after hire.

During the five-working-day period after notice of a positive result, the employee has the right to request a confirmatory retest (a third test). This confirmatory retest is at the employee's expense, and the original laboratory must be notified within three working days of the employee's request to have the confirmatory retest done at that laboratory or to have the sample transferred to a different licensed lab for the retest.

A laboratory must perform a confirmatory test (second test) of any sample that produces a positive result on the initial test.

+Minn. Stat. § 181.953.

Preemployment Testing

Employers are not prohibited from requiring or asking job applicants to submit to a drug and alcohol test as long as the process follows the provisions of the written testing policy. The employer must:

  • First make a conditional job offer to the applicant;
  • Require the same test of all applicants with conditional offers for the same position;
  • Confirm a positive test result before withdrawing a conditional job offer; and
  • Inform the applicant of the reason for its decision to withdraw the job offer.

+Minn. Stat. § 181.951, subd. 2; +Minn. Stat. § 181.953, subd. 11.

Routine Testing

Employers may require employees to submit to a drug and alcohol test as part of a routine physical examination.  The employer must:

  • Not require the test more than once annually; and
  • Provide the employee with at least two weeks' written notice that a drug or alcohol test may be requested or required as part of the physical examination.

+Minn. Stat. § 181.951, subd. 3.

Random Testing

Employers are not prohibited from conducting random drug and alcohol testing of employees. Random testing may only be done for employees in safety-sensitive positions (i.e., a job where drug or alcohol usage would threaten the health or safety of any person). To select employees on a random basis, the employer must use a mechanism that:

  • Results in an equal probability that any employee from a group of employees subject to the selection mechanism will be selected; and
  • Does not give an employer discretion to waive the selection of any employee selected under the mechanism.

+Minn. Stat. § 181.950, subd. 11 and 13; +Minn. Stat. § 181.951, subd. 4.

Reasonable Suspicion Testing

Employers may require an employee to submit to a drug and alcohol test if they have a reasonable suspicion that the employee is under the influence of drugs or alcohol or has violated written work rules prohibiting the use, possession, sale or transfer of drugs or alcohol while working, while on company property or while using a company vehicle, machinery or equipment. The work rules must be in writing and included in the employer's written drug and alcohol testing policy. +Minn. Stat. § 181.951, subd. 5.

Reasonable suspicion means a basis for forming a belief based on specific facts and rational inferences drawn from those facts. +Minn. Stat. § 181.950, subd. 12.

Post-Accident Testing

Employers are permitted to require a drug and alcohol test if it has a reasonable suspicion that an employee has sustained a personal injury, caused another employee to be injured, caused a work-related accident or was operating machinery, equipment or vehicles involved in a work-related accident.  +Minn. Stat. § 181.951, subd. 5.

Follow-Up and Return-to-Work Testing

An employer may require drug and alcohol testing of an employee who:

  • The employer referred for chemical dependency treatment or evaluation; or
  • Is participating in a chemical dependency treatment program under an employee benefit plan.

Testing may be done without prior notice during the evaluation or treatment period and for two years after completing the treatment program.

+Minn. Stat. § 181.951, subd. 6.

Marijuana Testing

Employers are not prohibited from requiring employees and job applicants to submit to a drug test for marijuana. The drug is still listed as an illegal Schedule I controlled substance under federal law. Therefore, an employer may take disciplinary, rehabilitative or other adverse action against an employee or job applicant based on a confirmed positive test result for the drug who is not a registered medical marijuana patient. There are certain antidiscrimination protections for employees who are registered medical marijuana patients; smoking marijuana, however, is not a protected medical use.

An employee who is required to undergo employer drug testing that includes marijuana may present verification of enrollment in the state marijuana patient registry as part of the employee's explanation of a confirmed positive test result for marijuana. The employer may take disciplinary or rehabilitative action on the basis of a registered marijuana patient's confirmed positive drug test for cannabis components or metabolites only if the employer can also demonstrate that the employee used, possessed or was impaired by marijuana at work or during the hours of employment. The law, however, permits an employer that has federal contracts or is otherwise required under federal regulations to maintain a drug-free workplace to take disciplinary or other adverse action even if such action is based upon the person's status as a qualifying patient. +Minn. Stat. § 152.32.

Disciplinary Action

An employer may take disciplinary or rehabilitative action against an employee based on a second or subsequent confirmed positive test result for illegal drug use or alcohol impairment. An employer may not fire an employee based on the first offense of a confirmed positive drug or alcohol test result, unless the employer has first given the employee an opportunity to participate in a drug or alcohol counseling or rehabilitation program, at the employee's expense or through the employee's health insurance. The employer may fire the employee if they refuse to participate in the counseling or rehabilitation program or they fail to successfully complete the program (e.g., they have a confirmed positive test result after completion of the program). +Minn. Stat. § 181.953, subd. 10.

Payment for Testing

An employer may not request or require an employee or job applicant to contribute to, or pay the cost of, drug or alcohol testing, except for confirmatory retests that the employee or applicant requests. +Minn. Stat. § 181.953, subd. 4 and 9.

Unemployment Benefits Denial

Minnesota law provides for denial of unemployment benefits to employees fired for misconduct. Conduct that is a consequence of an employee's chemical dependency is not considered disqualifying misconduct unless the employee was previously diagnosed with or treated for chemical dependency and has since failed to make consistent efforts to control the dependency. +Minn. Stat. § 268.095, subd. 6.

Confidentiality

Test result reports, as well as other information gathered during the testing process, are private and confidential information. Employers may not disclose such information to any other employer, a third-party individual, a private organization or a governmental agency without the written consent of the employee or applicant.

The test report information can be used in an arbitration proceeding conducted under a collective bargaining agreement, an administrative hearing or a judicial proceeding, as long as it is relevant to the proceeding. It may also be disclosed to federal agencies as required by federal law, regulation order, or in accordance with a federal government contract. Finally, the information may be disclosed to a substance abuse treatment facility for the purposes of evaluating or treating the employee.

+Minn. Stat. § 181.954.

Employee Access to Test Information

An employee or job applicant has the right to request and receive from the employer a copy of the test result report on any drug or alcohol test. +Minn. Stat. § 181.953, subd. 8.

An employee must be given access to information in their personnel file that relates to positive test results and to the testing process, including the conclusions that the employer drew from the information and the actions the employer took based on the information. +Minn. Stat. § 181.953, subd. 10.

Drug and Alcohol Abuse

While the federal Americans with Disabilities Act (ADA) does protect individuals who are former or recovering drug addicts from discrimination by covered employers (i.e., an entity that employs 15 or more individuals during a 20-week period), the ADA also specifically permits an employer to take adverse action (e.g., discipline) against employees on the basis of current illegal drug use. Therefore, an individual who currently abuses an illegal drug like marijuana is not considered to be an individual with a disability under the ADA. Note, however, that an employee's current alcohol addiction is protected by the ADA so an employer covered by the ADA must treat alcohol abuse as a disability.

In Minnesota, qualified health insurance plans that provide coverage for alcoholism and chemical dependency services may not require cost sharing for both inpatient or outpatient substance abuse services to be greater than that for inpatient or outpatient medical services. +Minn. Stat. § 62Q.47.

Smoking

Under the Minnesota Clean Indoor Air Act, smoking is banned in all places of employment, public transportation and public places in Minnesota. +Minn. Stat. § 144.412.

Smoking means inhaling or exhaling smoke from any lighted cigar, cigarette, pipe or any other lighted tobacco or plant product. Smoking also includes carrying a lighted cigar, cigarette, pipe or any other lighted tobacco or plant product intended for inhalation.

Place of employment means any indoor area at which two or more individuals perform any type of a service for pay under any type of contractual relationship, including, but not limited to, an employment relationship with or for a private corporation, partnership, individual or government agency. A place of employment includes:

  • Public conveyances;
  • Factories;
  • Warehouses;
  • Offices;
  • Retail stores;
  • Restaurants;
  • Bars;
  • Banquet facilities;
  • Theaters;
  • Food stores;
  • Banks;
  • Financial institutions;
  • Employee cafeterias;
  • Lounges;
  • Auditoriums;
  • Gymnasiums;
  • Restrooms;
  • Elevators;
  • Hallways;
  • Museums;
  • Libraries;
  • Bowling establishments;
  • Employee medical facilities;
  • Rooms or areas containing photocopying equipment or other office equipment used in common; and
  • Vehicles used in whole or in part for work purposes, during hours of operation if more than one person is present.

+Minn. Stat. § 144.413.

An employer must not provide smoking equipment, including ashtrays or matches, in areas where smoking is prohibited. +Minn. Stat. § 144.416(b).

If someone is smoking in a nonsmoking area, the employer should ask the individual to stop smoking. If the individual continues to smoke, then the employer should ask the person to leave the premises. An individual who refuses to leave should be treated as a person acting in a disorderly manner or as a trespasser. +Minn. Stat. § 144.416(a)(2).

Smoking is permitted in:

  • Certain facilities researching health effects of smoking;
  • Native American ceremonies;
  • Private places when not in use as a place of employment or guest rooms;
  • Tobacco shops;
  • Certain heavy commercial vehicles;
  • Family farms;
  • Farm vehicles and construction equipment; and
  • Theatrical productions.

+Minn. Stat. § 144.4167.

Off-Duty Conduct

Minnesota law protects employees' use of lawful consumable products, such as alcohol and tobacco. Employers are prohibited from refusing to hire a job applicant or from disciplining or terminating an employee for using lawful consumable products while off the employer's premises during nonworking hours.

However, employers are not prohibited from restricting off-duty use of lawful consumables during nonworking hours if the restriction relates to a bona fide occupational requirement and is reasonably related to employment activities or responsibilities, or is reasonably necessary to avoid the appearance of a conflict of interest with the employee's job responsibilities.

+Minn. Stat. § 181.938.

E-Cigarettes

The use of e-cigarettes is not covered under the state law prohibiting smoking in the workplace. However, nothing in the state's Clean Indoor Air Act prohibits an employer from taking more stringent measures than legally required to protect individuals from involuntary exposure to aerosol or vapor from electronic delivery devices. +Minn. Stat. § 144.416(b).

Smoking Areas

Minnesota law does not require an employer to create designated smoking areas or provide other accommodations for smokers. However, under the Clean Indoor Air Act, an employer may choose to permit smoking in areas that meet the following criteria:

  • The area must be maintained at a negative pressure with respect to adjacent or connected nonsmoking areas, as verified by a licensed engineer or an individual certified by the National Environmental Balancing Bureau or the American Air Balance Council;
  • Air from a smoking-permitted area must not be recirculated into a nonsmoking area and must be exhausted directly to the outdoors; and
  • The area must be equipped with either a continuous physical barrier between smoking and nonsmoking areas, or an air distribution system that ensures a unidirectional airflow from nonsmoking areas into the smoking-permitted area.

+Minn. R. 4620.0955.

Postings

The Minnesota Clean Indoor Air Act requires all signs used to identify a location where smoking is prohibited in an entire place of employment to use the statement "No smoking is permitted in this entire establishment" or a similar statement. If smoking is permitted anywhere within a place of employment, then the sign must state "Smoking is prohibited except in designated areas."

All signs used to identify a smoking-permitted area must use the words "smoking permitted" or the international smoking symbol, or both. Signs used to identify a nonsmoking area must use the words "no smoking" or the international no-smoking symbol, or both.

Signs must be conspicuously posted on or immediately inside of all outside entrances to the place of employment. All signs used to identify smoking-permitted and nonsmoking areas must be placed at a height and location easily seen by a person in the establishment and must not be obscured in any way. The boundary between an acceptable nonsmoking area and a smoking-permitted area must be clearly designated so a person can differentiate between the two areas.

Signs used to designate acceptable nonsmoking and smoking-permitted areas must use printed letters of not less than 0.5 inches (1.3 centimeters) in height. Whenever either of the international symbols is used, the diameter of the outer circle must not be less than three inches.

+Minn. Stat. § 144.416; +Minn. R. 4620.0500.

Smoking Policies

Minnesota does not require employers to implement a smoking policy. However, an employer may implement one that prohibits smoking in the workplace. Employers should consider including a Smoke-Free Workplace statement in their handbook to indicate where smoking is prohibited and the consequences for violating the policy.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Smoking and E-Cigarette Workplace Laws by State

Marijuana Laws by State