Pre-Employment Drug Testing in Minnesota: Cannabis Ban and Rights

Pre-employment drug testing in Minnesota is governed by the Drug and Alcohol Testing in the Workplace Act (DATWA), Minnesota Statutes sections 181.950 through 181.957. An employer cannot ask you to take a drug test until after extending a conditional job offer, cannot test at all without a written policy that meets specific legal requirements, and, since 2023, cannot screen most applicants for cannabis. If a test does come back positive, you have the right to explain the result and to request a retest before the employer takes any action against you.

When an Employer Can Ask You to Test

The conditional offer has to come first. An employer may make passing a drug test a condition of that offer, but the offer must be on the table before any sample is requested.¹

Once an employer decides to test for a particular position, every applicant who receives a conditional offer for that role must be tested. Singling out one candidate while letting others skip the screen is illegal, regardless of the employer’s size or any suspicion about the individual.¹

No testing can happen at all without a written drug and alcohol testing policy that meets the minimum requirements in section 181.952. An employer who has not adopted one has no legal authority to test you.¹

What the Written Policy Must Tell You

Before any sample is collected, the employer must give you a copy of its written testing policy and written notice of its intent to test. The policy has to spell out, at a minimum:²

Which applicants and employees are subject to testing.
The circumstances under which testing can be requested or required.
That you have a right to refuse a test and what happens if you do.
Any disciplinary or adverse action that could follow a confirmed positive.
Your right to explain a positive result and to request a confirmatory retest at your own expense.
Any other appeal procedures available to you.

Employers who handle this carefully will ask you to sign an acknowledgment confirming that you received the policy. That signed form is the employer’s proof of compliance if a dispute comes later.²

The Cannabis Testing Ban

Since Minnesota legalized recreational marijuana in 2023, most employers cannot test job applicants for cannabis as a condition of employment. Even if a drug panel happens to include THC and the result comes back positive, the employer cannot refuse to hire you solely because of that result. Cannabis is treated as a separate category from other controlled substances for hiring purposes.¹

If your role does not fall into one of the specific exempt categories below, an employer who rescinds your offer over a cannabis-positive test is violating the law.

Jobs Still Subject to Cannabis Testing

Certain positions remain fully subject to cannabis testing under DATWA. The exempt categories are:¹

Safety-sensitive positions, including supervisory roles, where impairment would threaten someone’s health or safety.³
Peace officer positions as defined in Minnesota law.
Firefighter positions.
Positions providing face-to-face care, training, education, supervision, counseling, or medical assistance to children, vulnerable adults, or patients receiving treatment for medical, psychiatric, or mental health conditions.⁴
Positions requiring a commercial driver’s license or where state or federal law mandates drug testing for vehicle operators.
Positions funded by a federal grant.
Any position where state or federal law independently requires cannabis testing.

The safety-sensitive definition is broad but not unlimited. It covers any role where impairment could endanger someone, and the employer has to be able to point to specific job duties that create the risk rather than simply labeling a position “safety-sensitive.” Federal rules also override state law where they apply. Commercial drivers regulated by the U.S. Department of Transportation remain subject to DOT drug testing, which includes cannabis.⁵

What Happens After a Positive Result

A positive on the initial screen does not end the process. DATWA builds in several steps before an employer can act on the result.

Confirmatory Testing

The laboratory must run a confirmatory test on every sample that comes back positive on the initial screen. The employer receives a written report identifying which substances were tested and whether the result was positive or negative.⁶

Notification and Your Chance to Explain

Within three working days of receiving the lab report, the employer must tell you the result in writing. If the confirmatory test was positive, that notice must also tell you about your right to explain the result and your right to request a retest.⁶

You then have three working days after receiving that notice to submit an explanation. This is your opportunity to disclose a legitimate prescription, an over-the-counter medication, or any other relevant information before a final hiring decision is made. The employer can ask you to identify medications you are taking or recently took.⁶

Requesting a Retest

Within five working days of being notified of a positive confirmatory result, you can request in writing that the original sample be retested. You pay for the retest. The employer then has three working days to notify the original lab, which either performs the retest or transfers the sample to another licensed laboratory. The retest uses the same detection thresholds as the original confirmatory test. If it does not confirm the original positive, the employer cannot take any adverse action against you based on that test.⁶

The five-working-day window is a hard deadline. Miss it and you lose the right to challenge the result through this process.⁶

Confidentiality of Your Results

Your test results are legally protected. For private-sector applicants, results are classified as private and confidential. For public-sector applicants, they are private data on individuals under the Minnesota Government Data Practices Act. Neither the employer nor the lab can release your results to another employer, a government agency, or any third party without your written consent.⁷

The lab is limited to telling the employer whether the sample was positive or negative for the substances tested; it cannot share broader medical information. Narrow exceptions allow disclosure in arbitration or court proceedings where relevant, to federal agencies when required by law or a federal contract, or to a substance abuse treatment facility for evaluation or treatment.⁷

Refusing the Test

You can refuse a pre-employment drug test. DATWA requires the employer’s written policy to say so and to describe the consequences. Refusing will almost certainly cost you the job. The law protects you from being tested without proper notice and procedures, but it does not prevent an employer from withdrawing a conditional offer when an applicant declines to complete the screening. If the employer does withdraw the offer, they must tell you the reason.¹

Prescription Medications and the ADA

Federal law adds another layer of protection. Under the Americans with Disabilities Act, employers cannot make disability-related medical inquiries before extending a conditional offer. After the offer, they can require medical examinations and drug tests, but only if they do so for all applicants entering the same job category.⁸

This matters most when a positive result comes from a lawful prescription. If disclosing that prescription during the explanation window reveals a disability, the employer cannot use that medical information to discriminate against you. The ADA also requires that medical information obtained through the process be kept confidential and stored separately from general personnel files. An employer who rescinds an offer because your positive result revealed medication for a disability may face liability under both DATWA and the ADA.

If the Employer Breaks the Rules

You can file a civil lawsuit for damages when an employer violates DATWA during the testing process. Recoverable damages include lost wages and other losses caused by the violation. A court can also grant injunctive relief, ordering the employer to stop violating the law or to take corrective action.⁹

Attorney fees are available only when the court finds the employer knowingly or recklessly violated the law. A good-faith procedural mistake is still actionable for damages, but it will not trigger an attorney fee award. Courts have broad discretion to order other equitable relief, including reinstatement with back pay when a hiring process was unlawfully derailed.⁹

1
Minnesota Office of the Revisor of Statutes. Minnesota Code 181.951 – Authorized Drug and Alcohol Testing
2
Minnesota Office of the Revisor of Statutes. Minnesota Code 181.952 – Policy Contents and Prior Written Notice
3
Minnesota Office of the Revisor of Statutes. Minnesota Code 181.950 – Definitions
4
Office of Cannabis Management. What Employers Should Know
5
Minnesota Department of Transportation. Drug and Alcohol Compliance Program – Transit
6
Minnesota Office of the Revisor of Statutes. Minnesota Code 181.953 – Reliability and Fairness Safeguards
7
Minnesota Office of the Revisor of Statutes. Minnesota Code 181.954 – Confidentiality
8
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA
9
Minnesota Office of the Revisor of Statutes. Minnesota Code 181.956 – Remedies