A Spring Break Primer for Employers
As employees head out to exotic domestic and international destinations for Spring Break, we often get calls from employers wondering if they can request an employee undergo drug testing upon the employee’s return to work; and if the employee were to test positive, what action could legally be taken. The fact that more states passed laws last year approving medical or recreational use of marijuana creates new questions for employers who have drug testing programs. Twenty-nine states, plus the District of Columbia and two U.S. territories (Guam and Puerto Rico), have legalized medical marijuana; and eight states plus the District of Columbia have legalized the recreational use of marijuana. So, in addition to the “post-vacation” drug testing question, employers also question whether they can even engage in drug testing or prohibit employees from coming to work after using marijuana while off duty or using medical marijuana while on duty.
Minnesota has one of the most comprehensive drug and alcohol testing statutes in the nation (Minnesota Statutes. § 181.950 - .957). Under the Minnesota Drug Testing in the Workplace Law, an employer may not request or require an employee or job applicant to undergo drug testing except as authorized. Minnesota law requires employers to have a written testing policy in place (notice to employees upon adoption, posted on the premises in an appropriate and conspicuous location and available for inspection), and that testing be conducted by a licensed, accredited or certified testing laboratory. In Minnesota, an employer may engage in job applicant testing, routine physical examination testing, random testing, reasonable suspicion testing, and treatment program testing. An employer may not request or require an employee or job applicant to undergo drug testing on an arbitrary and capricious basis.
Just because an employee went on vacation to a place where recreational use of marijuana is legal, does not alone give “reasonable suspicion” for an employer to require a drug test of a returning employee. Minn. Stat. § 181. 951, Subd. 5., defines and limits reasonable suspicion testing. An employer may request or require an employee to undergo drug and alcohol testing if the employer has a reasonable suspicion that the employee:
(1) is under the influence of drugs or alcohol;
(2) has violated the employer's written work rules prohibiting the use, possession, sale, or transfer of drugs or alcohol while the employee is working or while the employee is on the employer's premises or operating the employer's vehicle, machinery, or equipment, provided the work rules are in writing and contained in the employer's written drug and alcohol testing policy;
(3) has sustained a personal injury, as that term is defined in section 176.011, subdivision 16, or has caused another employee to sustain a personal injury; or
(4) has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.
Thus, there would need to be other indicators in the workplace to test the employee upon return from vacation. An abnormally happy employee returning in a state of bliss after days of skiing in powder or soaking up the sun on a beach is probably not enough to raise reasonable suspicion that the employee must be under the influence of drugs, even if the employee spoke of how delicious those brownies were at the ski lodge. So, what other possibilities are there for testing employees following their return from vacation that are legal?
The employer could schedule random testing for employees in “safety-sensitive positions.” A "safety-sensitive position" means a job, including any supervisory or management position, in which an impairment caused by drug or alcohol usage would threaten the health or safety of any person. Minn. Stat. § 181. 950, Subd. 13.
If the employee tested positive before, and was referred by the employer for chemical dependency treatment or evaluation, or is participating in a chemical dependency treatment program, the employee may be required to undergo drug testing without prior notice during the evaluation or treatment period and for a period of up to two years following completion of any prescribed chemical dependency treatment program. Minn. Stat. § 181. 951, Subd. 6. If the employee is coming back on vacation within that two year period, then the employer could test that employee.
Employers may also request or require employees to undergo drug testing as part of a routine physical examination as long as the drug test is required no more than once annually and the employee has been given at least two weeks’ written notice that a drug test may be requested or required as part of the physical examination. Minn. Stat. § 181. 951, Subd. 3. In that case, an employer could schedule all of its employees’ physical examinations in the spring. There goes the element of surprise, but it could be an effective deterrent.
In Minnesota, if an employee tests positive, an employer may not be able to terminate, or even discipline the employee. Minnesota law requires that upon a positive test for the first time, before discharge or discipline, an employer must first give the employee an opportunity to participate in, at the employee’s own expense or pursuant to coverage under an employee benefit plan, a drug counseling or rehabilitation program. Minn. Stat. § 181.953, Subd. 10 (1). Some employees might just be willing to take that risk of a one-time offense and seek treatment to maintain their job.
Employers must check their applicable state law about any restrictions on taking adverse action. Even in states that have legalized marijuana, there are legislative provisions that provide no employment protections (Alaska, California, Massachusetts, Nevada), or in some cases the statutes are silent, but there is guidance providing no protections in the workplace (Colorado, Oregon, Washington). Only one state, Maine, appears to provide employment protections for off-duty use. There is also federal law to consider. Just because an employee may be able to engage in legal recreational use under their state law, federal law still maintains it is an illegal controlled substance, and employers can prohibit employees from being under the influence of marijuana in the workplace, regardless whether use was for medical or recreational purposes.
We recommend employers regularly update their drug and alcohol testing policies in accordance with the recent state and federal laws. Specifically, employers should consider changes to existing policies regarding the use of medical marijuana in the workplace and compliance under the Americans with Disabilities Act, as well as specifying the consequences of positive tests at work, even if recreational use of marijuana is legal in the state the employee works or where they went on vacation!
Nancy Anton is a partner at Lindquist & Vennum in the Employment Law Group and has been providing advice and counsel to clients in employment law for 20 years. Please contact her if you have any questions or would like assistance in drafting drug and alcohol testing policies in the workplace under state or federal laws, or have compliance questions.