An employer may not discipline, discharge, discriminate against or require rehabilitation of an employee on the basis of a positive test unless the test is verified by a confirmatory test. An employee or job applicant who is damaged by violation of the statute may bring a civil action against the employer or laboratory. An action for an injunction or equitable relief such as reinstatement with back pay also may be brought, and attorney’s fees may be awarded. Employers with at least one employee required to hold a commercial driver’s license are urged to seek the advice of counsel regarding the potential applicability of federal regulations requiring drug testing. New Minnesota law passed in the 2023 legislative session legalized both the sale and use of recreational cannabis. Both, however, remain illegal under federal law. Employers are advised to review their policies on drug testing—especially employers who are or may become federal contractors—and to seek legal counsel’s review of any changes in policy or practice that are written in employee handbook done previously. The regulation and licensing of businesses engaging in the retail sale of cannabis will be effected by the newly created Minnesota Office of Cannabis Management which will be developing rules for various classes of sales establishments. Earliest expected date for those is early in 2025. In the interim information is available at Office of Cannabis Management . POLYGRAPH TESTING State and federal laws prohibit employers from using the results of a polygraph or lie detector test to take adverse employment action against an employee or prospective employee. The federal law requires employers to inform employees of their rights under the law by posting a notice available from the U.S. Department of Labor. The Minnesota law is enforced by the Department of Labor and Industry, and the federal law is enforced by the U.S. Department of Labor. In addition to enforcement actions brought by the government agencies, an employee who is injured by a violation of the law may bring a private civil action against the employer. GENETIC TESTING State law prohibits an employer or employment agency from, as a condition of employment, directly or indirectly administering a genetic test or requesting or requiring protected genetic information; that law also prohibits an employer or employment agency from affecting the terms or conditions of employment, or terminating the employment of any person, based on protected genetic information. Likewise, the state law provides that no person shall provide or interpret for any employer or employment agency protected genetic information on a current or prospective employee. Any person aggrieved by a violation of this law may bring a civil action and the court may award up to three times the actual damage suffered due to the violation, plus punitive damages, reasonable costs, attorneys’ fees and injunctive or other equitable relief. Similarly, the new federal Genetic Information Nondiscrimination Act provides protection against the misuse of genetic information by employers. Employers may not use genetic information when making employment decisions such as hiring, firing and promotion or any other terms of employment.
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