Can an employer fire an employee over a drug test?

Under the Minnesota Drug and Alcohol Testing in the Workplace Act, an employer cannot discharge an employee after that worker’s first positive drug test without providing an opportunity for counseling or treatment. Employers may be liable in a civil action for damages suffered by an employee when the employer violate this law.

DATWA, however, allows an exception when two conditions are met. First, the employer gave the employee the opportunity to participate in a drug or alcohol counseling or rehabilitation program after the employer consulted with a certified chemical use counselor or physician trained in the diagnosis and treatment of chemical dependency. The treatment may be paid by the employee or an employee benefit plan.

Second, the employee may be terminated for refusing to participate in these programs or failing to successfully complete the program by withdrawing before completion. The worker may also be discharged if there is a positive test on a confirmatory test after the program is concluded.

In an unpublished decision issued in August, the Minnesota Court of Appeals found that the DATWA requires an employee to complete the schedule of treatment that the employer provided to the employee and not merely a type of treatment program that the employer selected. In that case an employee was discharged after the first positive drug test when he refused to attend a chemical dependency program that the worker and his employer earlier had agreed upon.

The worker subsequently sought permission to receive treatment at another unapproved facility because of the commute and attendance requirements. He was fired after the employer denied this request and he did not attend the agreed upon sessions.

The court ruled that the employer may mandate whether the program is a counseling or rehabilitation program. However, the DATWA only requires an employer to provide an opportunity for participation in a treatment program. An employer does not have to allow an additional opportunity to attend a different program after it had already approved a program requested by the employee.

Employers should seek legal assistance to help avoid these type of employment disputes. Legal assistance can help provide reasonable and legal options to employers to assure the safety of their employees and workplaces and to avoid other business disputes.

Source: State of Minnesota, “Jones vs. Green Bay Packaging, Inc., (No. 27-CV-14-8791, Aug. 10, 2015),” Assessed Sept. 27, 2015

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