Have you ever suspected one of your employees of coming into work drunk or high? Have you ever attempted to handle the situation on your own based on what you thought was reasonable? Did you take action without consulting an attorney or the Minnesota law that governs alcohol and drug testing? If the answer is yes you may have violated the Drug and Alcohol Testing in the Workplace Act (“DATWA”).

If you violate DATWA’s testing requirements an employee may seek damages from you for (1) lost wages; (2) reinstatement; (3) emotional distress; (4) punitive damages; and (5) attorneys’ fees. In other words, violating DATA may cause you to incur substantial liability and fees.

You are subject to DATWA when you conduct drug and alcohol testing on job applicants, employees, or independent contractors (including those who work for independent contractors who perform services for compensation for an employer). Because you are subject to DATWA, you should be aware of the common “mistakes” or “traps” involving drug and alcohol testing.

Some of the mistakes or traps include: (1) testing an employee or applicant without a compliant drug and alcohol testing policy; (2) terminating an employee after a positive test result without allowing the employee to first seek and complete treatment; (3) testing an applicant and then allowing the applicant to start work before receiving the results; (4) testing applicants before making the decision to hire and then not hiring the applicants although they passed the test; (5) not sending notice of the test results by mail and instead allowing a Medical Review Officer to inform the employee by telephone; (6) testing an existing employee before sending the employee on a temporary assignment, project, or contract for a client or customer; (7) not complying with the posting requirement under DATWA; (8) not setting parameters on treatment and return to work, or allowing an employee to return to work without confirmation that the employee has completed treatment; (9) testing an employee in an arbitrary and capricious manner without reasonable suspicion; (10) testing an employee or applicant without a signed acknowledgment of having seen a Minnesota-compliant drug and alcohol testing policy; (11) using breath tests or performing testing on site; and (12) testing an employee after admitted possession or use of illegal drugs instead of moving straight to termination.

We would be happy to sit down with you and discuss your drug and alcohol policy, DATWA, and any other issues that may impact your business.