Minnesota, Iowa Modify Employer Drug Testing Requirements

Minnesota and Iowa have longstanding drug testing laws that place them among the more difficult states for employer compliance. This year, both states modified their laws in ways that require employers to reevaluate their current practices and consider changes. 

Minnesota strengthens employment protections for medical cannabis patients 

For the third year in a row, the Minnesota legislature passed an omnibus cannabis bill. While the law (Chapter 31 - MN Laws) mostly addresses the state’s upcoming recreational cannabis market, it includes significant changes for employers whose applicants and employees may use cannabis. The law is effective immediately. 

Written notice required 14 days before certain adverse actions related to medical cannabis 

Since the inception of Minnesota’s medical cannabis program in 2014, state law has generally prohibited employers from taking adverse employment action based on an individual’s status as a registered participant in the medical cannabis program or because such an individual tests positive for cannabis on an employer-required drug test. The prohibition is subject to significant exceptions, however, including that an employer may take adverse action if failing to do so would cause the employer to violate federal or state law or regulations or to lose a monetary or licensing-related benefit under federal law or regulations. 

As revised, the Minnesota law adds a procedural hurdle for employers that rely on federal or state regulations to justify adverse actions against medical cannabis patients. Now, an employer must provide written notice to a medical cannabis patient at least 14 days before refusing to hire, terminating employment, or taking another adverse action that would otherwise be prohibited. The written notice must cite the specific law or regulation that the employer would have violated or the specific monetary or licensing-related benefit the employer would lose if the employer were to fail to take action. 

Retaliation prohibited 

The new law also prohibits an employer from retaliating against a medical cannabis patient for asserting the patient’s rights or seeking remedies under the law. 

Penalties increased; new legal remedies unclear 

Minnesota law already provides that a medical cannabis patient may bring an action for damages against an employer that takes adverse action based on the patient’s status or cannabis-positive test result. In such a case, a successful plaintiff may recover actual damages or a statutory penalty, whichever is greater, plus reasonable attorney’s fees. 

The new law increased the potential statutory penalty from $100 to $1,000 and clarified that a plaintiff may seek injunctive relief to enforce certain subdivisions of the law, including the new notice requirement and retaliation provision. 

Despite those changes, the new law did not amend the list of provisions that a plaintiff may seek to enforce through an action for damages. As such, the amended law is silent as to whether a plaintiff may recover damages, penalties, or attorney’s fees for an alleged violation of the written-notice requirement or retaliation provision, or whether such rights may be enforced only by an action for injunctive relief. This may be an issue for the courts or a future legislative session to resolve. 

Recognition of Tribal programs 

While many Minnesota medical cannabis users are enrolled in the state’s registry program, some participate in recognized Tribal medical cannabis programs. The legislature already extended employment protections to individuals enrolled in Tribal programs but did so under Minnesota Statutes section 152.32, which will expire on December 1, 2025. The legislature has since duplicated most of section 152.32’s provisions in section 342.57 and, with the new omnibus cannabis bill, further clarified that the statutory protections apply to patients in both state and Tribal programs. 

Iowa eases employer compliance with drug testing law 

Iowa also passed a law amending its drug testing law. Likely in response to recent court decisions, the changes include clarifications regarding employers’ compliance burdens and practical updates to how notices and requests can be delivered. The new law is effective immediately. 

Written notices and requests may now be delivered in person or electronically 

One longtime challenge with Iowa’s drug testing law has been that an employer must notify an employee of a confirmed positive test result for drugs or alcohol “in writing by certified mail, return receipt requested.” With the new law, an employer can provide required written notices in person or via electronic delivery, as long as the recipient consents. 

The new law states: “In lieu of certified mail, return receipt requested, an employer may offer an employee the option to receive notifications and make requests . . . by in-person exchange of written materials or by electronic notification. The employee may choose to receive notifications and make requests by one of these methods or by certified mail, return receipt requested.” These delivery options are also available for notices an employer must deliver to prospective employees and parents of employees and prospective employees who are minors. 

The new law emphasizes that, no matter the delivery method, the notice still must be made in writing. Accordingly, the law no longer allows an employee to make an oral, “in-person” request for a second confirmatory test after receiving a confirmed positive test result for drugs or alcohol. To request a second confirmatory test, an employee must now make the request “by certified mail, return receipt requested,” electronically, or through an in-person exchange of written materials. As required by the existing law, the employee must also identify an approved laboratory to conduct the test and timely pay the employer the fee for the additional test. 

Employer designation of safety-sensitive positions 

The new law clarifies that employers maintain discretion to determine which of their positions are safety sensitive. The “safety-sensitive position” definition now states that it is “a position designated by the employer as one wherein an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage.” It has long been a recommended practice for employers to identify preemptively safety-sensitive positions, and this amendment reaffirms the need for such consideration.  

Clarified burdens for employees, employers 

The Iowa drug testing law allows for civil remedies but only for “aggrieved” employees or prospective employees. With the new law, there is now language stating that the plaintiff employee or prospective employee “has the burden of proving by a preponderance of the evidence that a violation of this section directly caused any damages for which affirmative relief is sought.” 

Additionally, the new law removed a provision placing “the burden of proving that the requirements” of the law were met on the defending employer. The deletion of this language could change the landscape of litigation under this law in Iowa. In recent decisions, the Iowa Supreme Court has relied on the prior language to conclude that an employer must demonstrate “substantial” compliance with the law to be immune from non-statutory causes of action, such as invasion of privacy and wrongful termination. This was an increasingly high bar, particularly in relation to random testing and formation of random testing pools. 

Modified civil remedies 

Iowa also modified the civil remedies available to individuals who claim a testing law violation. First, the law now clarifies that an “employer,” and not an “individual,” can be held liable for a violation, removing the possibility of holding an individual supervisor or manager personally responsible for an alleged violation. Second, the law clarifies that a successful plaintiff can recover only “reasonable” attorney fees and court costs. 

Conclusion 

With these latest changes, it has become more challenging for Minnesota employers to respond to increased cannabis use. Employers invoking federal preemption and related regulatory or licensing exceptions when taking adverse actions as to medical cannabis patients must be prepared to articulate those explanations in writing and provide two weeks’ notice before taking action. In contrast, Iowa has taken practical steps to simplify employer compliance with notice and other requirements, adopting practical changes for written notice requirements and clarifying the burdens in the event of alleged violations. Given increased litigation in this area, employers should consult with knowledgeable legal counsel to understand risks and promote compliance.