Minnesota employers do not have the same free hand to drug test that employers in many other states have. The state's Drug and Alcohol Testing in the Workplace Act, commonly called DATWA, has governed how, when, and why an employer can test since the 1980s, and it was amended again when the state legalized adult use cannabis. The result is a layered set of rules: a general testing statute that applies to almost every employer, plus a separate set of cannabis specific provisions that narrow when cannabis can be part of that testing. This guide walks through both layers using the current text of Minn. Stat. 181.950 through 181.957, the statutes that make up DATWA.
What DATWA Requires Before Any Testing Happens
DATWA does not let an employer test on a whim. Minn. Stat. 181.951, subdivision 1, says an employer may not request or require an employee or job applicant to undergo drug and alcohol testing except as authorized in the statute, and subdivision 1 also bars testing that is done on an arbitrary and capricious basis. In practice that means a Minnesota employer needs a documented, consistently applied reason and a written policy before a single cup or card is opened.
Minn. Stat. 181.952 spells out what that written policy has to contain. At minimum, subdivision 1 requires the policy to identify which employees or applicants are subject to testing, the circumstances that can trigger a test, the consequences of refusing a test, any discipline that can follow a confirmed positive, the employee's right to explain a positive result or pay for a confirmatory retest, and any internal appeal process. Subdivision 2 requires the employer to post notice that the policy exists in a conspicuous location and make copies available on request. Employers also have to give the policy to current employees when it is adopted, to employees moving into a tested position, and to job applicants before a conditional job offer becomes a test requirement.
Who Can Run the Test, and the Screen Versus Confirm Rule
DATWA does not allow an employer to pick any lab. Minn. Stat. 181.953, subdivision 1, requires the employer to use a testing laboratory that is certified by the National Institute on Drug Abuse, accredited by the College of American Pathologists, or licensed under New York state's clinical laboratory program for drug testing. That requirement runs on top of the general federal practice of screening first and confirming second: subdivision 3 requires the laboratory to run a confirmatory test on every sample that comes back positive on the initial screen, and subdivision 10 says an employer may not discharge, discipline, or discriminate against an employee based solely on an initial screening result that has not been verified by that confirmatory test.
This two step structure mirrors the federal approach to workplace testing. An immunoassay screen is a fast way to flag a sample that needs a closer look, not a legally sufficient basis on its own for an adverse decision under Minnesota law, and a confirmatory method is what has to back it up before any action is taken.
The Employee's Right to Explain, and the Retest Right
Subdivision 6 of Minn. Stat. 181.953 requires the employer to give the employee or applicant written notice of a positive confirmatory result and the right to explain it, including the chance to list over the counter or prescription medications that could account for the finding. Subdivision 9 gives the person five working days after that notice to tell the employer in writing that they intend to pay for an independent confirmatory retest, generally at a different certified laboratory.
Discipline Limits: No Discharge on a First Positive Without a Chance at Treatment
This is one of the more employee protective pieces of DATWA. Subdivision 10 of Minn. Stat. 181.953 generally bars an employer from discharging an employee for a first confirmed positive test unless the employer first gives the employee the chance to take part in a drug, alcohol, or cannabis counseling or rehabilitation program, at the employee's own expense or through a benefit plan, and the employee either refuses that program or fails to successfully complete it. Subdivision 10a layers additional limits on cannabis specific discipline on top of that general rule. Subdivision 11 also limits an employer's ability to withdraw a conditional job offer based on a test result in some circumstances. None of this means an employer is without options after a confirmed positive; it means the statute sets a sequence an employer generally has to follow before termination is on the table, and employers should work with counsel on how that sequence applies to a specific case.
Testing Scenarios Under DATWA
| Testing scenario | Generally permitted under DATWA | Cannabis included by default |
|---|---|---|
| Pre employment, after conditional offer | Yes, with written policy and notice | Generally no, unless an exception in 181.951 subd. 9 applies |
| Random testing | Limited to safety sensitive positions and certain professional athletes under 181.951 subd. 4 | Only for safety sensitive and excepted roles |
| Reasonable suspicion | Yes, under a documented policy | Varies by exception, confirm against current statute |
| Post accident | Yes, under a documented policy | Varies by exception, confirm against current statute |
| Routine physical examination | Yes, if part of a regularly scheduled physical and policy discloses it | Generally no, unless an exception applies |
| DOT regulated safety sensitive function | Governed by federal rule, state law yields under 181.957 | No, DOT panels do not test for cannabis legality, they test for the presence of THC metabolite |
What Changed When Minnesota Legalized Cannabis
Minn. Stat. 181.950, subdivision 4, defines "drug" for DATWA purposes by reference to the controlled substance schedules in section 152.01, and that definition excludes cannabis flower, cannabis products, tetrahydrocannabinol, lower potency hemp edibles, and hemp derived consumer products. Subdivision 5 states that ordinary drug and alcohol testing under the act does not include cannabis testing unless the statute says otherwise, and subdivision 5a creates a separate "cannabis testing" category for samples analyzed for those cannabis related substances. The practical effect is that most routine pre employment and random drug and alcohol testing in Minnesota no longer screens for cannabis, and 181.951, subdivision 8, bars an employer from refusing to hire a job applicant solely because a cannabis test came back positive, unless the law requires that result to be considered.
Cannabis is not excluded from testing everywhere. Subdivision 9 of 181.951 carves cannabis back into the definition of a testable drug for safety sensitive positions as defined in subdivision 13 of 181.950, for peace officers and firefighters, for positions that involve face to face care, training, supervision, or medical assistance to children, vulnerable adults, or patients, for positions that require a commercial driver's license or that involve operating a motor vehicle under federal or state law, and for positions funded by a federal grant where federal law requires testing. Employers in those categories should verify the current subdivision text before relying on it, since this is an area the legislature has revisited more than once since legalization.
Separately, Minn. Stat. 181.938 protects an employee's lawful off duty use of consumable products, and its definition of a protected lawful consumable product includes cannabis flower alongside food, alcohol, and tobacco. That statute lets an employer restrict cannabis use during working hours, on work premises, or while operating the employer's vehicles, machinery, or equipment, but it is a separate nonwork activity protection, not the source of the safety sensitive and public safety testing exceptions, which live in the DATWA cannabis provisions above. Treating the two statutes as interchangeable is a common mistake worth avoiding when a policy is drafted.
Safety Sensitive Positions Still Carry the Broadest Testing Rights
Minn. Stat. 181.950, subdivision 13, defines a safety sensitive position as a job, including a supervisory or management role, in which impairment from drug, alcohol, or cannabis use would threaten the health or safety of any person. Because random testing under 181.951, subdivision 4, is limited to safety sensitive positions and certain professional athletes, correctly classifying a role as safety sensitive is one of the most consequential decisions in a Minnesota testing policy. Employers should be able to point to a specific, documented safety rationale for each position they classify this way rather than applying the label broadly across a workforce.
DOT, CDL, and Other Federally Regulated Roles
Minn. Stat. 181.957 addresses what happens when federal law and DATWA point in different directions. It recognizes that employers may be subject to federal testing requirements, including those tied to federal contracts, federally regulated facilities, and interstate commerce, and it directs employers to follow federal law where state and federal requirements conflict, while still honoring DATWA's employee protections to the extent they do not conflict with the federal rule. For commercial drivers and other DOT covered safety sensitive functions, that federal framework is 49 CFR Part 40, which sets its own testing, laboratory, and medical review officer procedures independent of state cannabis law. A Minnesota employer running a DOT drug and alcohol testing program follows Part 40, not the state's cannabis exclusions, for covered positions.
Building a Policy That Holds Up
A compliant Minnesota policy generally starts with a clear list of who is tested and why, a laboratory that meets the certification standard in 181.953, defined screen and confirm steps, written notice and retest rights, and a documented path to counseling before any discharge decision on a first positive. Employers running multi state operations should also compare Minnesota's framework against how other states structure their workplace drug testing laws, since very few states regulate the testing process itself as closely as DATWA does, and against how cannabis legalization has changed workplace testing more broadly, since Minnesota's safety sensitive carve out is one version of a pattern showing up across legal cannabis states. Employers sourcing cups, dip cards, or oral fluid devices for a documented, policy driven program can review options in the drug test cup collection at American Screening Corporation.
Frequently asked questions
Does Minnesota law require a written drug testing policy before an employer can test?
Yes. Minn. Stat. 181.952 requires a written policy that spells out who is tested, what triggers a test, the consequences of refusal, and the employee's right to explain a positive result or request a confirmatory retest, and the employer has to post notice that the policy exists.
Can a Minnesota employer fire someone for a single positive drug test?
Generally not immediately. Minn. Stat. 181.953, subdivision 10, requires most employers to offer a chance at counseling or rehabilitation before discharge on a first confirmed positive, unless the employee refuses that program or does not complete it. Employers should review the current statute and talk to counsel before making a discharge decision.
Does Minnesota drug testing law cover cannabis the same way it covers other drugs?
No. Minn. Stat. 181.950 excludes cannabis from the general definition of a testable drug for most pre employment and random testing, and Minn. Stat. 181.951, subdivision 9, puts cannabis back on the list only for safety sensitive positions and a defined set of roles such as peace officers, firefighters, child or vulnerable adult care positions, CDL and motor vehicle roles, and certain federally funded positions.
Do federal DOT drug testing rules still apply in Minnesota?
Yes. Minn. Stat. 181.957 recognizes that federal testing requirements control where state and federal rules conflict, and DOT regulated positions are tested under 49 CFR Part 40, which does not follow Minnesota's cannabis exclusions.
Can a Minnesota employer use any laboratory it wants for drug testing?
No. Minn. Stat. 181.953, subdivision 1, requires the laboratory to be certified by the National Institute on Drug Abuse, accredited by the College of American Pathologists, or licensed under New York's clinical laboratory program for drug testing.
Can an employer refuse to hire someone solely because of a positive cannabis test?
Generally not, outside the excepted roles. Minn. Stat. 181.951, subdivision 8, bars refusing to hire a job applicant solely because a cannabis test result is positive, unless another law requires that result to be considered, such as for a safety sensitive or otherwise excepted position.
This article is general information about Minnesota law as of the statute text cited above, not legal advice. Minnesota's testing and cannabis statutes have been amended more than once; employers should confirm current subdivision text at revisor.mn.gov and consult employment counsel before adopting or enforcing a testing policy.
