By: Chad A. Staul, Esq.
The Minnesota Drug and Alcohol Testing in the Workplace Act ("DATWA") continues to take front and center in the ongoing battle between the National Football League ("NFL") and Minnesota Vikings players Kevin and Pat Williams. The "Williams Wall," as they are known on the football field, tested positive for bumetanide, a weight-loss substance believed to also mask the presence of anabolic steroids in the body. The NFL moved to suspend the players for violating its drug testing policy. The "Wall", however, sought to block the discipline by arguing the NFL drug testing, done under a collective bargaining agreement, violated DATWA's strict requirements when the NFL failed to follow DATWA's detailed notification procedures. The players scored first when last year the U.S. Court of Appeals for the Eighth Circuit held that although the NFL's drug testing policy was pursuant to a collective bargaining agreement with the player's union and, thus, was generally governed by federal law, the NFL still had to comply with Minnesota's DATWA when testing Vikings players. The players continued to successfully move down field when the Minnesota District Court thereafter ruled that DATWA may further apply to the NFL because they were likely joint-employers alongside the Minnesota Vikings.
The most recent ruling in this matter, however, seems to have stopped the players' drive. On February 8, 2011, the Minnesota Court of Appeals issued a ruling in the NFL's favor holding that under the specific facts of this case, DATWA did not apply. While recognizing the extensive limitations DATWA places on Minnesota employers who wish to test employees for the presence of drugs and/or alcohol, the Court noted that DATWA has a very specific definition of the term "drug" and that bumetanide is not included in any of the controlled substance schedules that the statute uses for its "drug" definition. Therefore, because the purpose of the NFL's confirmatory test was to verify the presence of a substance not considered a "drug" under DATWA, the statute was inapplicable.
At first glance, this ruling appears to be a retreat from the encompassing power previously given to DATWA by the Eight Circuit and the Minnesota District Court. A careful reading, however, provides that the Minnesota Court of Appeals went out of its way to state that its decision "should not be read to excuse the NFL from complying with DATWA when applicable." In other words, DATWA continues to loom on the NFL sidelines. If the NFL had performed a confirmatory test for a drug covered under DATWA's definition, the outcome of this case might have been much different.
The Court's ruling also makes a very important distinction that should not be lost in the likely publicity surrounding this decision. Addressing DATWA's confirmatory testing phase and not its initial screening phase, the Court specifically stated that DATWA is focused on the purpose behind an employer's drug and alcohol test, not the outcome. Therefore, although this decision serves to slightly shorten DATWA's reach with regard to private employers in Minnesota, it raises the issue regarding a private employers' ability or desire to regulate, and/or test for, controlled substances that are just as likely to impair job performance or cause safety concerns but are not covered under DATWA's drug definition. For example, how should an employer react to an employee or job applicant whose initial screening test is negative under DATWA but positive for other undesirable substances with the potential to adversely affect performance?
The Court's ruling perfectly illustrates DATWA's extensive nuances. Therefore, employers are cautioned to be aware of the challenges involved in determining how to create, implement and administer drug and alcohol testing policies in Minnesota. All employers who wish to test their employees for drugs and/or alcohol should seek proper legal advice. If you have any questions, comments or concerns about Minnesota's drug testing requirements, please contact Wessels Sherman's Minnesota office.
