A Minnesota employer may test you only under a written policy and only in five situations — and a first positive confirmatory test is not by itself a lawful reason to fire you

The permission is conditional, and the condition is a document

Minnesota does not ban workplace drug testing. It makes testing something an employer is allowed to ask for only in listed situations, and only if it has first written down what it is doing.

Minn. Stat. § 181.951, subd. 1:

(a) An employer may not request or require an employee or job applicant to undergo drug and alcohol testing except as authorized in this section.

(b) An employer may not request or require an employee or job applicant to undergo drug or alcohol testing unless the testing is done pursuant to a written drug and alcohol testing policy that contains the minimum information required in section 181.952 and either: (1) is conducted by a testing laboratory which participates in one of the programs listed in section 181.953, subdivision 1; or (2) complies with the oral fluid test procedures under section 181.953, subdivision 5a.

(c) An employer may not request or require an employee or job applicant to undergo drug and alcohol testing on an arbitrary and capricious basis.

Three separate prohibitions, and an employer has to clear all three. Note what paragraph (a) forbids: not only requiring a test but requesting one. The verb pair — “request or require” — runs through the whole act.

The Act reaches essentially every employer and nearly every worker. “Employer” under § 181.950, subd. 7, means “a person or entity located or doing business in this state and having one or more employees, and includes the state and all political or other governmental subdivisions of the state.” “Employee” under subd. 6 means “a person, independent contractor, or person working for an independent contractor who performs services for compensation, in whatever form, for an employer.” That definition names independent contractors, and people working for them, as covered rather than excluding them.

What the policy has to say

Minn. Stat. § 181.952, subd. 1:

An employer’s drug and alcohol and cannabis testing policy must, at a minimum, set forth the following information:

(1) the employees or job applicants subject to testing under the policy;

(2) the circumstances under which drug or alcohol and cannabis testing may be requested or required;

(3) the right of an employee or job applicant to refuse to undergo drug and alcohol and cannabis testing and the consequences of refusal;

(4) any disciplinary or other adverse personnel action that may be taken based on a confirmatory test verifying a positive test result on an initial screening test;

(5) the right of an employee or job applicant to explain a positive test result on a confirmatory test or request and pay for a confirmatory retest; and

(6) any other appeal procedures available.

Clause (3) is the one that surprises people: the statute assumes you may refuse, and requires the policy to tell you what happens if you do.

Subdivision 2 requires the employer to deliver that policy in writing “to all affected employees upon adoption of the policy, to a previously nonaffected employee upon transfer to an affected position under the policy, and to a job applicant upon hire and before any testing of the applicant if the job offer is made contingent on the applicant passing drug and alcohol testing.” It also requires a posted notice “in an appropriate and conspicuous location on the employer’s premises” saying that a policy exists and that copies are available for inspection during regular business hours.

There is one more paper step before a sample is taken. Section 181.953, subd. 6(a): before requesting a test, an employer “shall provide the employee or job applicant with a form, developed by the employer, on which to acknowledge that the employee or job applicant has seen the employer’s drug and alcohol testing or cannabis testing policy.”

The five situations

Section 181.951 authorizes testing in five circumstances and no others.

A job applicant — subd. 2:

An employer may request or require a job applicant to undergo drug and alcohol testing provided a job offer has been made to the applicant and the same test is requested or required of all job applicants conditionally offered employment for that position. If the job offer is withdrawn, as provided in section 181.953, subdivision 11, the employer shall inform the job applicant of the reason for its action.

A routine physical examination — subd. 3:

An employer may request or require an employee to undergo drug and alcohol testing as part of a routine physical examination provided the drug or alcohol test is requested or required no more than once annually and the employee has been given at least two weeks’ written notice that a drug or alcohol test may be requested or required as part of the physical examination.

Random testing — subd. 4:

An employer may request or require employees to undergo cannabis testing and drug and alcohol testing on a random selection basis only if (1) they are employed in safety-sensitive positions, or (2) they are employed as professional athletes if the professional athlete is subject to a collective bargaining agreement permitting random testing but only to the extent consistent with the collective bargaining agreement.

Reasonable suspicion — subd. 5:

An employer may request or require an employee to undergo cannabis testing and drug and alcohol testing if the employer has a reasonable suspicion that the employee:

(1) is under the influence of drugs, cannabis, or alcohol;

(2) has violated the employer’s written work rules prohibiting the use, possession, impairment, sale, or transfer of drugs or alcohol, cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products while the employee is working or while the employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment, if the work rules are in writing and contained in the employer’s written cannabis testing or drug and alcohol testing policy;

(3) has sustained a personal injury, as that term is defined in section 176.011, subdivision 16, or has caused another employee to sustain a personal injury; or

(4) has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.

A treatment referral or program — subd. 6:

An employer may request or require an employee to undergo cannabis testing and drug and alcohol testing if the employee has been referred by the employer for substance use disorder treatment or evaluation or is participating in a substance use disorder treatment program under an employee benefit plan, in which case the employee may be requested or required to undergo cannabis testing and drug or alcohol testing without prior notice during the evaluation or treatment period and for a period of up to two years following completion of any prescribed substance use disorder treatment program.

Two definitions carry most of the weight in that list. A “safety-sensitive position” under § 181.950, subd. 13, is “a job, including any supervisory or management position, in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person.” “Reasonable suspicion” under subd. 12 is “a basis for forming a belief based on specific facts and rational inferences drawn from those facts.” “Random selection basis” under subd. 11 has its own two-part definition — a mechanism that “results in an equal probability that any employee from a group of employees subject to the selection mechanism will be selected” and that “does not give an employer discretion to waive the selection of any employee selected under the mechanism.”

Cannabis is on a separate track, and it has been since 2023

Laws 2023, chapter 63, article 6, took cannabis out of the definition of “drug” and built a parallel scheme around it. Section 181.950, subd. 4, now reads:

“Drug” means a controlled substance as defined in section 152.01, subdivision 4, but does not include marijuana, tetrahydrocannabinols, cannabis flower as defined in section 342.01, subdivision 16, cannabis products as defined in section 342.01, subdivision 20, lower-potency hemp edibles as defined in section 342.01, subdivision 50, and hemp-derived consumer products as defined in section 342.01, subdivision 37.

The words after “subdivision 4” are all new in 2023. The same act added “cannabis testing” as its own defined term at subd. 5a and amended subd. 5 so that “drug and alcohol testing” “do[es] not include cannabis or cannabis testing, unless stated otherwise.”

Four operative rules follow.

Applicants. Section 181.951, subd. 8: “(a) An employer must not request or require a job applicant to undergo cannabis testing as a condition of employment unless otherwise required by state or federal law. (b) Unless otherwise required by state or federal law, an employer must not refuse to hire a job applicant solely because the job applicant submits to a cannabis test or a drug and alcohol test authorized by this section and the results of the test indicate the presence of cannabis.” Paragraph (c) bars cannabis testing “on an arbitrary or capricious basis,” and paragraph (d) requires cannabis testing to comply with the §§ 181.953 and 181.954 safeguards.

Paragraph (a) got broader in 2024. As enacted in 2023 it barred requiring an applicant to undergo cannabis testing “solely for the purpose of determining the presence or absence of cannabis as a condition of employment.” Laws 2024, chapter 121, article 2, section 29, struck the words “solely for the purpose of determining the presence or absence of cannabis,” leaving the flat prohibition quoted above. The same act corrected a drafting error in paragraph (d), which had cross-referenced itself.

The excepted positions. Subdivision 9 lists seven categories for which “cannabis and its metabolites are considered a drug and subject to the drug and alcohol testing provisions in sections 181.950 to 181.957”: a safety-sensitive position; a peace officer position as defined in § 626.84, subd. 1; a firefighter position as defined in § 299N.01, subd. 3; a position requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to children, to vulnerable adults, or to patients receiving health care services; a position requiring a commercial driver’s license or requiring the employee to operate a motor vehicle for which state or federal law requires testing; a position funded by a federal grant; and any other position for which state or federal law requires cannabis testing.

Work rules. Section 181.952, subd. 3(a), preserves the employer’s authority over the workday: unless another law provides otherwise, an employer “is not required to permit or accommodate” cannabis use, possession, impairment, sale, or transfer “while an employee is working or while an employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment.” Paragraph (b) then conditions that authority on paper: an employer “may only enact and enforce written work rules” of that kind “in a written policy that contains the minimum information required by this section.”

Discipline. Section 181.953, subd. 10a, lists the four grounds on which an employer may discipline, discharge, or take other adverse action for workplace cannabis conduct. Clause (1) is the impairment standard, and the legislature wrote it in an old formulation: “if, as the result of consuming cannabis flower, a cannabis product, a lower-potency hemp edible, or a hemp-derived consumer product, the employee does not possess that clearness of intellect and control of self that the employee otherwise would have.” Clause (2) is a verified positive on a confirmatory cannabis test. Clause (3) is a violation of written work rules meeting § 181.952. Clause (4) covers what other law requires or what would cost the employer a federal monetary or licensing benefit.

Off the clock. A separate statute, Minn. Stat. § 181.938, subd. 2(a), bars an employer from refusing to hire, disciplining, or discharging “because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours,” and the 2023 act added cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products to the definition of “lawful consumable products.” Paragraph (b) then says so expressly, “regardless of whether federal or other state law considers cannabis use, possession, impairment, sale, or transfer to be unlawful,” while preserving the employer’s authority over conduct “during working hours, on work premises, or while operating an employer’s vehicle, machinery, or equipment.”

Two limits on that section are easy to miss. Its “employer” is not the Act’s employer: § 181.938, subd. 1, borrows the definition in § 179.01, subd. 3, which excludes “the state, or any political or governmental subdivision thereof” — except as to § 179.13 — and also excludes “any person subject to the Federal Railway Labor Act, as amended from time to time.” And its remedy is narrow — subd. 4 provides that “[t]he sole remedy for a violation of subdivision 2 is a civil action for damages,” that “[d]amages are limited to wages and benefits lost by the individual because of the violation,” and that the court “shall award the prevailing party in the action, whether plaintiff or defendant, court costs and a reasonable attorney fee.” The fee provision runs both directions. Subdivision 3 also carries four exceptions, including restrictions that relate “to a bona fide occupational requirement.”

The laboratory, and the two tests

Section 181.953, subd. 1, requires the employer, except for oral fluid testing, to use a testing laboratory meeting one of three criteria for drug testing — certification by the National Institute on Drug Abuse under the mandatory guidelines published at 53 Federal Register 11970 to 11989, April 11, 1988; accreditation by the College of American Pathologists under its forensic urine drug testing laboratory program; or licensure by the New York State Department of Health under Public Health Law, article 5, title V. For alcohol testing, paragraph (b) requires either the New York licensure or College of American Pathologists accreditation in the laboratory accreditation program.

Subdivision 3(a) governs what the laboratory does: it “shall conduct a confirmatory test on all samples that produced a positive test result on an initial screening test,” must report within three working days after a negative screening result or after a confirmatory test, and “shall retain and properly store for at least six months all samples that produced a positive test result.”

Subdivision 4 contains two prohibitions. An employer “may not conduct drug or alcohol testing or cannabis testing of its own employees and job applicants using a testing laboratory owned and operated by the employer,” with one exception on the face of the sentence — “one agency of the state may test the employees of another agency of the state” — and, “[e]xcept as provided in subdivision 9, an employer may not request or require an employee or job applicant to contribute to, or pay the cost of, drug or alcohol testing or cannabis testing under sections 181.950 to 181.954.” Subdivision 5 requires the employer to establish its own chain-of-custody procedures and specifies four things those procedures must require.

Oral fluid testing, added in 2024, is the one alternative to a laboratory. Under subd. 5a(a) an employer may request an oral fluid test “as an alternative to using the services of a testing laboratory under subdivision 1.” Paragraph (b) requires that “[t]he employee must be informed of the test result at the time of the oral fluid test,” and gives the employee 48 hours after a positive, inconclusive, or invalid result to request laboratory testing “at no cost to the employee or job applicant.” Paragraph (c) puts any confirmatory retest after that laboratory test back on the employee’s own expense.

What happens after a positive result

The sequence is set out across subdivisions 6 through 9, and each step has a number of days attached to it.

Notice of the result. Subdivision 7: within three working days after receiving the laboratory report, the employer “shall inform in writing” the employee or applicant of a negative screening result, or of a negative or positive confirmatory result, and of the right to a copy of the report. For a positive confirmatory result the employer must also inform the employee in writing, at the same time, of the rights in subdivisions 6(b), 9, and either 10 or 11.

The right to explain. Subdivision 6(b): if the test is positive for drug use, “the employee must be given written notice of the right to explain the positive test,” and the employer may ask the employee to identify over-the-counter or prescription medication “and any other information relevant to the reliability of, or explanation for, a positive test result.” Subdivision 6(c) gives the employee three working days after notice of a positive confirmatory result to submit information explaining it.

The report. Subdivision 8: “An employee or job applicant has the right to request and receive from the employer a copy of the test result report on any drug or alcohol test or cannabis test.”

The confirmatory retest. Subdivision 9 lets the employee request a retest of the original sample “at the employee’s or job applicant’s own expense after notice of a positive test result on a confirmatory test.” The employee has five working days after notice of the confirmatory result to notify the employer in writing of the intention to obtain a retest; the employer then has three working days to notify the original laboratory. The retest “must use the same drug, alcohol, or cannabis threshold detection levels as used in the original confirmatory test.” And the payoff sentence: “If the confirmatory retest does not confirm the original positive test result, no adverse personnel action based on the original confirmatory test may be taken against the employee or job applicant.”

So the employer pays for the test and the employee pays for the retest — with the one exception in subd. 5a(b), where a laboratory test following a positive, inconclusive, or invalid oral fluid test is at no cost to the employee.

The first positive result

Section 181.953, subd. 10, paragraphs (a) and (b):

(a) An employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test.

(b) In addition to the limitation under paragraph (a), an employer may not discharge an employee for whom a positive test result on a confirmatory test was the first such result for the employee on a drug or alcohol test or cannabis test requested by the employer unless the following conditions have been met:

(1) the employer has first given the employee an opportunity to participate in, at the employee’s own expense or pursuant to coverage under an employee benefit plan, either a drug, alcohol, or cannabis counseling or rehabilitation program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of substance use disorder; and

(2) the employee has either refused to participate in the counseling or rehabilitation program or has failed to successfully complete the program, as evidenced by withdrawal from the program before its completion or by a positive test result on a confirmatory test after completion of the program.

Read the boundaries of that provision precisely. Paragraph (b) bars discharge, on a first confirmatory positive, unless the offer was made and refused or the program was not completed. It does not by its terms bar every form of discipline short of discharge on a first confirmatory positive; paragraph (a)’s broader bar — discharge, discipline, discrimination, or required rehabilitation — is tied to an unverified screening result. Two different paragraphs, two different scopes.

Paragraph (c) permits a temporary suspension or transfer “at the same rate of pay” pending the confirmatory test and any retest where the employer believes it “reasonably necessary to protect the health or safety of the employee, coemployees, or the public,” and requires that an employee suspended without pay “be reinstated with back pay if the outcome of the confirmatory test or requested confirmatory retest is negative.”

Paragraph (d) bars adverse action based on medical history information revealed under subd. 6 “unless the employee was under an affirmative duty to provide the information before, upon, or after hire.” Paragraph (e) gives the employee access to the personnel-file material about the test — see your personnel file is free discovery.

Subdivision 11 applies the screening-test rule to hiring: where a job offer was made contingent on passing a test, “the employer may not withdraw the offer based on a positive test result from an initial screening test that has not been verified by a confirmatory test.”

Who is allowed to know

Section 181.954 is four short subdivisions and each one matters.

Subdivision 1 limits the laboratory: it “may only disclose to the employer test result data regarding the presence or absence of drugs, cannabis, alcohol, or their metabolites in a sample tested.” Not medical history, not other findings.

Subdivision 2 makes the results and “other information acquired in the drug or alcohol testing or cannabis testing process” private and confidential as to private-sector employees and applicants, and private data on individuals under chapter 13 as to public-sector employees and applicants, and forbids disclosure “to another employer or to a third-party individual, governmental agency, or private organization without the written consent of the employee or job applicant tested.”

Subdivision 3 lists the three exceptions: use in an arbitration under a collective bargaining agreement, an administrative hearing under chapter 43A or other applicable law, or a judicial proceeding where relevant; disclosure to a federal agency as required by federal law, regulation, order, or federal contract compliance; and disclosure to a substance abuse treatment facility for evaluation or treatment.

Subdivision 4 is a single sentence with real consequences: “Positive test results from an employer drug or alcohol testing or cannabis testing program may not be used as evidence in a criminal action against the employee or job applicant tested.”

Remedies, and the limits on them

Section 181.956, subd. 2:

In addition to any other remedies provided by law, an employer or laboratory that violates sections 181.950 to 181.954 is liable to an employee or job applicant injured by the violation in a civil action for any damages allowable at law. If a violation is found and damages awarded, the court may also award reasonable attorney fees for a cause of action based on a violation of sections 181.950 to 181.954 if the court finds that the employer knowingly or recklessly violated sections 181.950 to 181.954.

The fee award is conditional in two ways at once: damages must be awarded first, and the court must find the violation knowing or reckless. That is a narrower fee provision than most of chapter 181.

Subdivision 1 requires an employee or collective bargaining agent to exhaust “all applicable grievance procedures and arbitration proceeding requirements under a collective bargaining agreement” before bringing the action — though “an employee’s right to bring an action under this section is not affected by a decision of a collective bargaining agent not to pursue a grievance.” Subdivision 3 gives standing to seek an injunction to the employee or applicant, to a state, county, or city attorney, and to a qualifying collective bargaining agent. Subdivision 4 permits “any other equitable relief it considers appropriate, including ordering the injured employee or job applicant reinstated with back pay.” Subdivision 5 prohibits retaliation “for asserting rights and remedies provided in sections 181.950 to 181.954.”

On the limitations period, the Minnesota Supreme Court has spoken. Sipe v. STS Manufacturing, Inc., 834 N.W.2d 683 (Minn. 2013), decided which statute of limitations governs a wrongful discharge claim under § 181.953, subd. 10. The court rejected the two-year period in Minn. Stat. § 541.07(1), reasoning that “section 541.07(1) is limited to common law causes of action not created by statute.” Sipe, 834 N.W.2d at 686. Its conclusion, at 687:

Because Sipe’s claim under Minn.Stat. § 181.953, subd. 10, was created by statute and was not recognized at common law, it does not fall within section 541.07(1). Rather, it is subject to the six-year statute of limitations under section 541.05, subdivision 1(2), as a cause of action “upon a liability created by statute.”

Minn. Stat. § 541.05, subd. 1(2), sets a six-year period for an action “upon a liability created by statute, other than those arising upon a penalty or forfeiture or where a shorter period is provided by section 541.07.” Section 181.953, subd. 10, has been amended since Sipe was decided — Laws 2023, chapter 63, article 6, section 39, inserted the cannabis references into paragraph (b) without disturbing its structure — and this page reports what the court held in 2013 rather than making any claim about the decision’s present status.

The protections are a floor. Section 181.955, subd. 1, permits collective bargaining over a policy “that meets or exceeds, and does not otherwise conflict with, the minimum standards and requirements for employee protection provided in those sections,” and subd. 2 preserves greater protections already in effect under existing agreements.

And there is a federal ceiling. Section 181.957, subd. 1, removes the §§ 181.950 to 181.956 protections from employees and applicants whose specific work requires testing under federal regulations that preempt state regulation, under federal requirements for operating federally regulated facilities, under federal contracts where the testing is conducted “for security, safety, or protection of sensitive or proprietary data,” or under state agency rules adopting federal regulations to conform an intrastate industry component. Subdivision 2 limits that exclusion: the protections still apply to those workers “to the extent that the provisions of sections 181.950 to 181.956 are not inconsistent with or specifically preempted by the federal regulations, contract, or requirements applicable to drug and alcohol testing.”

The revisor publishes two notes to § 181.953 recording preemption holdings from a single 1990 federal decision — one that subdivision 9 “was found preempted by the federal Labor Management Relations Act as applied to collective bargaining agreements,” and one that subdivision 10 “was found preempted as applied to the physical qualifications for federal motor carrier drivers by federal motor carrier safety regulations.” The decision is Visnovec v. Yellow Freight System, Inc., 754 F. Supp. 142 (D. Minn. 1990), and its own conclusions of law say it in three parts: a claim under subdivision 9 “is preempted by the Labor Management Relations Act, 29 U.S.C. § 185”; a claim under subdivision 10 “is not preempted by the Labor Management Relations Act”; and a claim under §§ 181.950 through 181.957 “is preempted by Department of Transportation regulations at 49 C.F.R. 391 et seq. regarding physical qualifications for drivers.” Visnovec, 754 F. Supp. at 144. The second and third do not conflict — the rehabilitation right in subdivision 10 survived the labor contract and was then reached by federal transportation law — and the plaintiff lost: his claim under §§ 181.950 to 181.957 was “dismissed with prejudice.” Id. The court’s reasoning on the first point was that the retest right in subdivision 9 is optional — “the employee ‘may’ request such a retest” — and so “could be and was waived by agreement of the parties through the collective bargaining process,” while the rehabilitation opportunity in subdivision 10 “exists independently from the labor contract.” Id. at 145. The decision construed the pre-1991 text of § 181.953, which has been amended repeatedly since; this page reports the court’s conclusions and the revisor’s notes as each is written, and does not assert anything further about either.

Currency

The revisor publishes these sections in the 2025 Minnesota Statutes edition. History lines: § 181.938, “1992 c 538 s 1; 2022 c 98 art 4 s 51; 2023 c 63 art 6 s 26”; § 181.950, “1987 c 388 s 1; 1991 c 60 s 1-4; 2023 c 63 art 6 s 27-32; 2024 c 110 art 7 s 4; 2024 c 121 art 2 s 26”; § 181.951, “1987 c 388 s 2; 1988 c 536 s 1; 1991 c 60 s 5; 2005 c 133 s 1; 2022 c 98 art 4 s 51; 2023 c 63 art 6 s 33-37; 2024 c 110 art 7 s 5; 2024 c 121 art 2 s 27-29”; § 181.952, “1987 c 388 s 3; 2023 c 63 art 6 s 38; 2024 c 121 art 2 s 30”; § 181.953, ending “2023 c 63 art 6 s 39; 2024 c 110 art 7 s 6-8; 2025 c 20 s 181”; § 181.954, “1987 c 388 s 5; 2023 c 63 art 6 s 40; 2024 c 121 art 2 s 31”; § 181.955, “1987 c 388 s 6; 2011 c 62 s 1; 2023 c 63 art 6 s 41”; § 181.956, “1987 c 388 s 7; 2023 c 53 art 11 s 36”; § 181.957, “1987 c 388 s 8; 2023 c 63 art 6 s 42.”

The 2025 entry is smaller than it looks. Laws 2025, chapter 20, section 181, amended § 181.953, subd. 5a, in one place: paragraph (d) had cross-referenced “sections 181.950 to 18.957,” and the act corrected the numeral to 181.957. Nothing else in the subdivision changed.

Checked against the revisor’s table of Minnesota Statutes affected by the 2026 Regular Session, queried one exact section at a time, none of §§ 181.938, 181.950, 181.951, 181.952, 181.953, 181.954, 181.955, 181.956, 181.957, 179.01, or 541.05 was amended, new, or repealed in 2026. Everything quoted above is current.

This page describes the machinery. Whether a particular job is a safety-sensitive position, whether a particular set of facts amounted to reasonable suspicion, and whether a particular policy contains everything § 181.952 requires are questions about facts and documents, and applying these sections to them is not what this page does.