By: James B. Sherman, Esq.
A federal court in Minnesota recently ruled that if professional football players Kevin and Pat Williams can show that they are employees of the NFL as well as the Minnesota Vikings, then the league's drug testing policy must comply with Minnesota's stringent drug and alcohol testing law. In a previous ruling, the U.S. Court of Appeals held that the NFL violated Minnesota's drug testing statute by failing, among other things, to provide proper statutory notification to Kevin and Pat Williams regarding their test results. A March 8, 2010, trial is scheduled to address the finer points of the case.
Why should this concern you? Minnesota has one of the most stringent drug testing statutes in the nation. The NFL had argued that its collective bargaining agreement with the Player's Union preempted the state drug testing law. The court held that it did not, finding that the players' claims were predicated on Minnesota law, not the labor agreement or banned substance policy, and were not dependent upon any interpretation of the contract or policy.
Any business seeking to conduct drug and/or alcohol testing of its Minnesota employees must be sure that their policy and/or actions comply with the Minnesota statute, including employees who may also be subject to collectively bargained drug or alcohol testing policies in Minnesota. The following are a few provisions required under the Minnesota law:
- The policy must be written and explain with specificity which employees are subject to testing and under what circumstances.
- Random testing is not allowed except for employees working in safety sensitive positions and professional athletes.
- Employees must be advised in advance, in writing, of their right to refuse to submit to testing (although such refusal may be treated as a positive test result if so provided in the employer's policy).
- Results must be given to the employee within three working days after receipt.
- Employees cannot be discharged, disciplined or discriminated against on the basis of a positive test without first verifying it through a confirmatory test.
- Employees (as opposed to applicants) who test positive for the first time cannot be discharged or even disciplined without first being given the opportunity to participate in a rehabilitative program.
- Employees must be given an opportunity to explain any positive test results.
Minnesota's drug and alcohol testing statute is very complicated and filled with potential sources of liability for employers seeking to subject Minnesota employees to a drug or alcohol test. In order to avoid triggering any such liability, it is imperative that an employer have a written policy in place before any testing occurs, and that it comply with all of the requirements of the Minnesota law. It is therefore highly recommended that you review your policy with legal counsel before any testing commences.
Wessels Sherman attorneys Jim Sherman and Chad Staul are always "game" to review your policy and, if necessary, to assist with preparing a winning policy that fully complies with Minnesota's tough drug and alcohol testing law.
Questions? Please contact WS Shareholder and Senior Attorney Jim Sherman or Attorney Chad Staul at (952) 746-1700, or email jasherman@wesselssherman.com or chstaul@wesselssherman.com.
