Drug Tested Employee Can be Fired For Rejecting Agreed-Upon Treatment Provider

We rarely see reported cases interpreting Minnesota’s workplace drug testing law so when such a decision is handed down, it is usually worth a look. That certainly proved true when the Minnesota Court of Appeals recently affirmed the termination of an employee who sought to attend a different chemical dependency treatment program from the one he consented to attend following his positive drug test.

Under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA), Minnesota employers can’t fire an employee after their first positive drug or alcohol test unless two conditions are satisfied:

First, the employer must give the employee an opportunity to participate in “either a drug or alcohol counseling or treatment program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical dependency [professional].”

Second, the employee has refused to participate in or failed to successfully complete the program.

With a Choice Between Options A and B, Choosing Option C Won’t Work

In Jones v. Green Bay Packaging, Inc. James Jones tested positive for marijuana after a workplace injury. His employer, Green Bay Packaging (“GBP”), placed him on an unpaid suspension and told him that he could return if he (1) immediately submitted to an evaluation by a chemical dependency treatment facility approved by GBP, and (2) successfully participated in a treatment program for the period of time recommended by that approved facility.

Jones initially agreed to the company’s proposal and identified two treatment facilities where he could be evaluated and treated, both of which GBP approved. Jones was then evaluated by one of the designated facilities and was told that he should receive outpatient treatment four times per week. Jones claimed he could not afford the gas money for travelling 30 minutes to this facility four times per week so he suggested that he attend a different facility closer to his home. Said no and said Jones would be terminated if he did not participate in the program where he had already been evaluated. When Jones refused, GBP fired him.

Jones sued GBP claiming that his termination violated DATWA because he was in fact willing to attend a treatment program. The trial and appellate courts both disagreed, noting that the company followed the statute by providing Jones with an opportunity to attend a treatment program that the company had approved. When Jones refused to attend that particular program, GBP was within its legal rights to terminate him. The Minnesota Court of Appeals explained that the plain language of DATWA did not require GBP “to grant Jones an additional opportunity to attend a different treatment program after the company had already approved the treatment center initially requested by Jones.”

Bottom Line

A Minnesota employer must provide an employee with an opportunity for counseling or treatment before discharging the employee following a first positive drug test under DATWA. However, once the counseling and/or treatment provider has been selected, the law does not let the employee keep shopping for alternative treatment programs. This helps move the process along and bring finality to the drug testing process and related follow-up.