Minnesota recently amended its mandatory drug, alcohol, and cannabis testing law to permit employers to perform oral fluid testing thereby exempting oral fluid testing from the state's laboratory testing requirements. Though the updates do not specifically use the words "rapid result" or "onsite", it clearly states that oral fluid can be used for non-laboratory testing and results must be given at the time a test occurs, making it clear that it is referring to point of collection testing oral fluid. Oral fluid tests complying with the updated law will be permitted as of August 1, 2024. A full text of the law can be found here: https://www.revisor.mn.gov/laws/2024/0/Session+Law/Chapter/110/.

It is important to note that Minnesota's mandatory law separates cannabis testing from drug testing and places strict regulations around cannabis testing.

What Do the Updates Say?

The new updates adjust Minnesota Statutes 181.950 through 181.953 add requirements related to oral fluid testing. A definition has been included which provides that an oral fluid test measures the presence of the "same substances as a drug and alcohol testing and cannabis testing that…" detects drugs, alcohol, cannabis, and/or metabolites at levels at or above those contained in one of the programs listed in 181.953(1). The definition further states that an oral fluid test "does not require the services of a testing laboratory" as defined in 181.953(1).

The update includes the following guidelines around oral fluid testing:

The donor must be informed of the test results at the time of the oral fluid test.

Within 48 hours of a positive, inconclusive, or invalid oral fluid test the donor may request drug, alcohol, or cannabis testing using the services of a testing laboratory as outlined within the law.

If the donor chooses to do this, the donor is not responsible for any costs associated with the initial laboratory test.

If the laboratory test indicates a positive result, the donor may request a confirmatory retest following the procedures outlined in the law but must pay for the retest out of their own pocket.

Next Steps for Employers

Minnesota employers that wish to add oral fluid testing to their testing programs should review and adjust their workplace testing policies prior to initiating oral fluid testing to ensure compliance.

The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice. The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user's individual circumstances or to provide legal advice. First Advantage makes no assurances regarding the accuracy, completeness, currency, or utility of the following information. Regulatory developments and impacts are continuing to evolve in this area.

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