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Thursday, September 4, 2014

Workplace Drug Testing Laws Complex

By: Tommy Eden

Shawn Olson, a Minnesota resident was offered a job in West Virginia by a Wisconsin company and requested to complete a pre-hire drug screen.  Push, Inc. had initially requested the test be performed in Wisconsin, but Olson was allowed to take the test in Minnesota for his convenience. He then reported for work in West Virginia and when  the test results came back as “too diluted,” which the employer interpreted as a failed test, Olson was fired.  Under the Minnesota Drug and Alcohol Testing in the Workplace Act an employer may not terminate or refuse to hire an employee based on an initial screening result unless the employer verifies the result through a confirmatory test. Neither Wisconsin nor West Virginia has a similar confirmation requirement.

An upset Olson filed suit in Minnesota State Court and Push removed the suit to federal court based upon diversity, then filed a motion to dismiss contenting that Minnesota laws were not controlling. The issue before the Federal District Court Judge was whether the Minnesota drug testing law controlled a Wisconsin company that was providing employment in West Virginia, despite the fact the employee lived in Minnesota when he took a drug test in Minnesota.  Olson claimed that under Minnesota law, the employer was “doing business” in Minnesota and therefore subject to the Minnesota drug testing rules.

On August 18 the federal district judge ruled that Minnesota had a presumption against the imposition of extra-territorial application of Minnesota law on other states and that it was unreasonable to construe the phase “doing business in” as applying to an out of state employer providing out of state employment. The Court also held that such a broad approach as urged by Olson would likely be unconstitutional because it could violate the Commerce Clause of the United States  constitution by creating numerous conflicts among state laws and dismissed the case.

Common Sense Counsel: Determining which state drug testing laws, or federal regulations, apply underscores  that workplace drug testing can be extremely complex and legally regulated. Following these five guidelines will help you navigate the murky drug testing waters: 1) when sued get into Federal Court if you can. The above well reasoned opinion and quick dismissal in favor or Push, Inc. is a good example; 2) make sure you have a working knowledge of the drug testing laws of the states you have employees on the ground  working; 3) have your state specific drug testing policy legally vetted on an annual basis for compliance and best practices as reefer madness is changing drug testing laws nationwide;  4) plan in advance how you will handle the tough issues of pre-duty prescription medication disclosure, last change agreements,  EAP referrals, UC & WC positive drug test disqualifications and bullet proofing your positive test discharge decision; and 5) decide who you will call for professional MRO drug testing advice and counsel in those moments when you have to make a hard decision with lasting consequences.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter @tommyeden3