Minnesota Adjusts Workplace Drug Testing Regulations to Add Oral Fluid Testing

Key Takeaways:

• Beginning August 1, 2024, Minnesota employers may choose to utilize oral fluid testing as an alternative to lab-based testing for drugs, alcohol, and/or cannabis.
• The updated law contains specific requirements around oral fluid testing and confirmatory tests and re-tests following such a test.
• At this point in time, oral fluid is now the only specimen exempt from Minnesota’s laboratory requirements, although strict collection and notification requirements are outlined in the law.

Minnesota recently adjusted its mandatory drug, alcohol, and cannabis testing law to permit employers to perform oral fluid testing that is exempt from the state’s laboratory testing requirements. Currently, the Drug and Alcohol Testing in the Workplace Act (“DATWA”) requires employers who conduct drug and alcohol testing to use only a laboratory that is accredited, certified, or licensed by entities specified in the law and to permit confirmatory re-testing after an applicant or employee tests positive. Under the new law, oral fluid testing will be permitted for drugs, cannabis, and alcohol, and this testing can be done outside of a testing laboratory. Though the updates do not specifically use the words “rapid result” or “on-site”, the law clearly states that oral fluid can be used for non-laboratory testing and results must be given at the time a test occurs, making it clear that it is referring to POCT oral fluid. Oral fluid tests complying with the regulatory updates will be permitted as of August 1, 2024, for drug, alcohol, and cannabis testing purposes.

It is important to note that Minnesota’s existing mandatory law separates cannabis testing from drug testing and places restrictions around employment-related cannabis testing.

What Do the Updates Say?

The new updates adjust Minnesota Statutes 181.950 through 181.953 to add references to and regulations around oral fluid testing. A new definition stipulates that an oral fluid test measures the presence of the “same substances as a drug and alcohol testing and cannabis testing that…” detects drugs, alcohol, cannabis, and/or metabolites at levels at or above those contained in one of the programs listed in 181.953(1). Additionally, the definition states that an oral fluid test “does not require the services of a testing laboratory” as defined in 181.953(1).

Historically, Minnesota has strict chain of custody and laboratory requirements that preclude any testing performed outside of a licensed laboratory. However, the new updates permit fluid testing of employees and/or applicants as an alternative to using the services of an authorized testing laboratory. The update includes the following guidelines around oral fluid testing:

• The donor must be informed of the test results at the time of the oral fluid test.
• Within 48 hours of a positive, inconclusive, or invalid oral fluid test the donor may request drug, alcohol, or cannabis testing using the services of a testing laboratory as outlined within the law.
• If the donor chooses to do this, the donor is not responsible for any costs associated with the initial laboratory test.
• If the laboratory test indicates a positive result, the donor may request a confirmatory retest following the procedures outlined in the law but must pay for the retest out of their own pocket.

Next Steps for Employers

Minnesota employers that wish to add oral fluid testing to their testing programs should review and adjust their workplace testing policies prior to initiating oral fluid testing to ensure compliance with the new law.

A full text of the updates to the law can be found at the following site: https://www.revisor.mn.gov/laws/2024/0/Session+Law/Chapter/110/