Off-Duty Drug and Alcohol Use by Employees

What does Minnesota law say about off-duty drug and alcohol use?

Minnesota law separates lawful products from illegal drugs. Off-duty, off-premises use of alcohol or cannabis is protected by Minn. Stat. § 181.938, subject to exceptions. Off-duty use of illegal drugs is not protected by that statute, but Minnesota’s Drug and Alcohol Testing in the Workplace Act (“DATWA”) governs any test you use to find it.

Minnesota remains an at-will state by common-law default, so the questions on this page are about the statutes that limit that default. Three bodies of law apply to an off-duty substance decision:

1. The lawful consumable products statute. Minn. Stat. § 181.938 protects off-premises, nonworking-hours use of alcohol, tobacco, food, and cannabis products, with exceptions for job requirements, conflicts of interest, treatment programs, and job performance.
2. The testing statute. Under Minn. Stat. § 181.951, subd. 1, “An employer may not request or require an employee or job applicant to undergo drug and alcohol testing except as authorized in this section.” Testing is allowed only “pursuant to a written drug and alcohol testing policy that contains the minimum information required in section 181.952 and either: (1) is conducted by a testing laboratory which participates in one of the programs listed in section 181.953, subdivision 1; or (2) complies with the oral fluid test procedures under section 181.953, subdivision 5a.” Under Minn. Stat. § 181.956, subd. 2, an employer that violates DATWA is liable to an employee “injured by the violation in a civil action for any damages allowable at law.”
3. Disability law. The Minnesota Human Rights Act (“MHRA”) and the federal Americans with Disabilities Act (“ADA”) can protect an employee with alcoholism or a substance use disorder in recovery, while leaving you free to enforce conduct and performance standards.

Federal transportation rules sit on top of all three for commercial drivers.

What does the lawful consumable products statute protect?

Minn. Stat. § 181.938, subd. 2, bars a private Minnesota employer from refusing to hire, disciplining, or discharging someone because of off-premises, nonworking-hours use of lawful consumable products. The statute defines those products to include “food, alcoholic or nonalcoholic beverages, tobacco, cannabis flower,” along with cannabis products, lower-potency hemp edibles, and hemp-derived consumer products.

Cannabis gets its own sentence. Subdivision 2 provides that cannabis flower and the related products “are lawful consumable products for the purpose of Minnesota law, regardless of whether federal or other state law considers cannabis use, possession, impairment, sale, or transfer to be unlawful.” The federal classification of cannabis, standing alone, does not take an employee’s off-duty use outside the statute. The exceptions in the next section do that work.

The statute reaches private employers. Minn. Stat. § 181.938, subd. 1, borrows the employer definition in Minn. Stat. § 179.01, subd. 3, which “does not include the state, or any political or governmental subdivision thereof, nor any person subject to the Federal Railway Labor Act.” A city, a county, or an employer under the Railway Labor Act should look elsewhere for its off-duty rules.

The remedy is narrow and cuts both ways. Under subdivision 4, “Damages are limited to wages and benefits lost by the individual because of the violation.” The court “shall award the prevailing party in the action, whether plaintiff or defendant, court costs and a reasonable attorney fee.” An employee who sues and loses pays your costs and attorney fee, and an employer who loses pays the employee’s.

When can an employer restrict off-duty drinking or cannabis use?

You can restrict off-duty use of alcohol or cannabis only where Minn. Stat. § 181.938 allows it: a bona fide occupational requirement tied to a particular employee’s or group’s responsibilities, a conflict of interest, a treatment or aftercare program’s conditions, or job performance. For cannabis, federal law or a federal benefit can also require action.

Minn. Stat. § 181.938, subd. 3, lists the exceptions:

• Occupational requirement. A restriction is allowed if it “relates to a bona fide occupational requirement and is reasonably related to employment activities or responsibilities of a particular employee or group of employees.”
• Conflict of interest. A restriction is allowed if it “is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities owed by the employee to the employer.”
• Treatment and aftercare. You may discipline or discharge an employee “who refuses or fails to comply with the conditions established by a substance use disorder treatment or aftercare program.”
• Job performance. You may act “on the basis of the applicant’s or employee’s past or present job performance.”

For cannabis, subdivision 2 adds that nothing in the statute limits discipline for use, possession, or impairment “during working hours, on work premises, or while operating an employer’s vehicle, machinery, or equipment, or if a failure to do so would violate federal or state law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.”

Commercial drivers are the clearest federal case. Under 49 C.F.R. § 382.207, “No driver shall perform safety-sensitive functions within four hours after using alcohol,” and “No employer having actual knowledge that a driver has used alcohol within four hours shall permit a driver to perform or continue to perform safety-sensitive functions.” Under 49 C.F.R. § 382.213, an employer “having actual knowledge that a driver has used a controlled substance” may not let the driver perform a safety-sensitive function, with a narrow exception for prescribed use. I suggest writing the reason for any off-duty restriction into the policy for the specific job, because the occupational-requirement exception asks whether the restriction relates to the responsibilities of “a particular employee or group of employees.”

How does Minnesota treat an employee’s off-duty illegal drug use?

No Minnesota statute protects off-duty use of illegal drugs. If you learn of it through a test, DATWA controls. The test must fit an authorized category under a written policy and use a qualifying laboratory or the statute’s oral fluid procedure, and a screen must be confirmed before you act. A first confirmed positive requires an offer of counseling or rehabilitation before discharge, with the program chosen after consulting a certified chemical use counselor or a physician trained in the diagnosis and treatment of substance use disorder.

DATWA reaches any employer “located or doing business in this state and having one or more employees,” under Minn. Stat. § 181.950, subd. 7. The steps that matter for an off-duty use case:

1. Test only on an authorized basis, under a written policy. Testing requires a written policy containing the information Minn. Stat. § 181.952 requires. Under § 181.951, subd. 1, the test must also either be “conducted by a testing laboratory which participates in one of the programs listed in section 181.953, subdivision 1” or comply “with the oral fluid test procedures under section 181.953, subdivision 5a.” Random testing is limited to employees in safety-sensitive positions under Minn. Stat. § 181.951, subd. 4. Reasonable-suspicion testing under subdivision 5 is available when you suspect the employee “is under the influence of drugs, cannabis, or alcohol,” and Minn. Stat. § 181.950, subd. 12, defines reasonable suspicion as “a basis for forming a belief based on specific facts and rational inferences drawn from those facts.” Testing may not be done “on an arbitrary and capricious basis.” Before any test, Minn. Stat. § 181.953, subd. 6, requires you to give the employee “a form, developed by the employer, on which to acknowledge that the employee or job applicant has seen the employer’s drug and alcohol testing or cannabis testing policy.”
2. Wait for confirmation. Under Minn. Stat. § 181.953, subd. 10, you may not discharge, discipline, or require rehabilitation “on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test.” You may temporarily suspend or transfer the employee “at the same rate of pay” pending the result if you believe it is “reasonably necessary to protect the health or safety of the employee, coemployees, or the public.”
3. Give written notice of the result and the employee’s rights. Under subdivision 6, an employee who tests positive “must be given written notice of the right to explain the positive test.” With a confirmed positive, subdivision 7 requires you to “inform the employee or job applicant in writing of the rights provided in subdivisions 6, paragraph (b), 9, and either subdivision 10 or 11, whichever applies,” which include the right to a confirmatory retest of the original sample. Under subdivision 9, “If the confirmatory retest does not confirm the original positive test result, no adverse personnel action based on the original confirmatory test may be taken against the employee or job applicant.”
4. Offer treatment before discharge on a first positive. You may not discharge an employee whose confirmed positive “was the first such result for the employee on a drug or alcohol test or cannabis test requested by the employer” unless you first offered a counseling or rehabilitation program, chosen “after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of substance use disorder,” and the employee refused or “failed to successfully complete the program.”

When a newspaper quoted me on Minnesota’s cannabis law, I asked for a correction because the story had merged these rules: the treatment offer applies to a first confirmed positive test, while an employer may discipline impairment on the job. A test showing a substance in an employee’s system is a different fact from impairment at work, and the statute treats them differently.

The stakes run past the individual decision. Under Minn. Stat. § 181.956, subd. 2, an employer that violates DATWA is liable “for any damages allowable at law,” and under subdivision 4 a court may order “the injured employee or job applicant reinstated with back pay” as equitable relief. Subdivision 5 bars discipline of an employee “for asserting rights and remedies provided in sections 181.950 to 181.954.” Testing required by federal rules follows Minn. Stat. § 181.957, subd. 1, which excludes testing under “federal regulations that specifically preempt state regulation,” though subdivision 2 keeps the state protections where they are not “inconsistent with or specifically preempted by the federal regulations.” More detail on test categories is in Minnesota’s drug testing rules for employers.

How does cannabis fit between off-duty use and on-the-job impairment?

Off-duty cannabis use is a lawful consumable product under Minn. Stat. § 181.938, but use, possession, or impairment while working, on your premises, or in your equipment can be disciplined under Minn. Stat. § 181.953, subd. 10a. Cannabis is tested separately from “drugs” except in listed positions, and registry patients have added protection.

Under Minn. Stat. § 181.950, subd. 4, a “drug” for testing purposes “does not include marijuana, tetrahydrocannabinols, cannabis flower” or the related products. Minn. Stat. § 181.951, subd. 9, reverses that for listed positions, including safety-sensitive jobs and “a position requiring a commercial driver’s license.” A safety-sensitive position is one “in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person,” under Minn. Stat. § 181.950, subd. 13.

On-the-job conduct is a separate question. Under Minn. Stat. § 181.953, subd. 10a, you may discipline or discharge for cannabis use, possession, or impairment “while an employee is working, on the employer’s premises, or operating the employer’s vehicle, machinery, or equipment,” including where the employee “does not possess that clearness of intellect and control of self that the employee otherwise would have” as the result of consuming cannabis. Your cannabis work rules must sit in a written policy: under Minn. Stat. § 181.952, subd. 3, you “may only enact and enforce written work rules” on these subjects “in a written policy that contains the minimum information required by this section.” Subdivision 10 still limits discharge: you “may not discharge an employee for whom a positive test result on a confirmatory test was the first such result for the employee on a drug or alcohol test or cannabis test requested by the employer” until the treatment offer described in the section above has been made and refused or not completed.

Registry patients add a step. Minn. Stat. § 342.57, subd. 5, bars discrimination based on “a patient’s positive drug test for cannabis components or metabolites, unless the patient used, possessed, sold, transported, or was impaired by medical cannabis flower or a medical cannabinoid product on work premises, during working hours, or while operating an employer’s machinery, vehicle, or equipment.” Where you rely on the federal-law exception, subdivision 5a provides that an employer “must provide written notice to a patient at least 14 days before” acting, and the notice “must cite the specific federal law or regulation” involved. The notice also “must specify what monetary or licensing-related benefit under federal law or regulations that the employer, school, or landlord would lose if the employer, school, or landlord fails to take action.” Check the current text before relying on that notice period. The broader picture is in cannabis rules for Minnesota employers.

When does disability law protect an employee who drinks or uses drugs?

Disability law can protect an employee’s condition while leaving you free to act on conduct. The MHRA, which covers employers with one or more employees, can protect alcoholism or a substance use disorder that is in remission, but it excludes a condition from alcohol or drug abuse that prevents essential job functions or is a direct threat. The ADA excludes an employee “currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”

Under Minn. Stat. § 363A.08, subd. 2, it is an unfair employment practice to discharge an employee “because of” disability, and Minn. Stat. § 363A.03, subd. 16, defines an employer as “a person who has one or more employees.” A disabled person includes someone who “has a record of such an impairment” or “has an impairment that is episodic or in remission and would materially limit a major life activity when active,” under subdivision 12. Subdivision 36, which defines a “qualified disabled person,” sets the limit: “For the purposes of this subdivision,” disability “excludes any condition resulting from alcohol or drug abuse which prevents a person from performing the essential functions of the job in question or constitutes a direct threat to property or the safety of others.”

The ADA applies to employers with “15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year,” under 42 U.S.C. § 12111(5). Under 42 U.S.C. § 12114, the protection does not reach an employee “who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use,” but it does reach someone who “has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs.” The same section allows an employer to adopt “reasonable policies or procedures, including but not limited to drug testing,” aimed at confirming that a rehabilitated employee is no longer using illegal drugs. An employer “may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees.”

For employers with 15 or more employees, Minn. Stat. § 363A.08, subd. 6, requires an employer to “initiate an informal, interactive process” when an employee with a disability needs an accommodation, and the listed accommodations include “job restructuring, modified work schedules, reassignment to a vacant position,” among others. The duty applies “unless the employer, agency, or organization can demonstrate that the accommodation would impose an undue hardship on the business, agency, or organization.” A request for a schedule change to attend treatment asks for an item on that list. I suggest basing the decision on documented conduct and performance rather than a label. The ADA lets you hold an employee who uses illegal drugs or is an alcoholic “to the same qualification standards for employment or job performance and behavior that such entity holds other employees,” and the MHRA exclusion turns on whether the condition “prevents a person from performing the essential functions of the job in question.” The sibling page on alcoholism and addiction as protected disabilities covers the disability question in more depth.

What other Minnesota protections can collide with off-duty discipline?

An off-duty substance reason does not displace a protected reason. If the employee also engaged in protected activity, seven limits can turn a substance-based decision into a claim, and the employee can argue the substance reason was a pretext.

1. Concerted activity (federal). 29 U.S.C. § 157 protects employees’ right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
2. Protected classes. Minn. Stat. § 363A.08, subd. 2, covers “race, color, creed, religion, national origin, sex, gender identity, marital status, status with regard to public assistance, familial status, membership or activity in a local commission, disability, sexual orientation, or age” for employers with one or more employees.
3. Whistleblowing. Minn. Stat. § 181.932, subd. 1, protects an employee who “in good faith, reports a violation, suspected violation, or planned violation of any federal or state law,” and Minn. Stat. § 181.935 allows recovery of “any and all damages recoverable at law, together with costs and disbursements, including reasonable attorney’s fees.”
4. Lawful consumable products. Minn. Stat. § 181.938 itself, discussed above, protects off-premises, nonworking-hours use of alcohol, tobacco, and cannabis.
5. Political activity. Minn. Stat. § 10A.36 bars threatening “loss of employment” because of “political contributions or political activity,” and “An individual or association that violates this section is guilty of a gross misdemeanor.”
6. Wage disclosure. Minn. Stat. § 181.172 bars adverse action against an employee “for disclosing the employee’s own wages or discussing another employee’s wages which have been disclosed voluntarily.”
7. Earned sick and safe time. Minn. Stat. § 181.9447, subd. 6, bars discipline because the person “requested earned sick and safe time, used earned sick and safe time,” among other protected acts.

Timing matters. An off-duty incident that surfaces shortly after an employee complained, reported, or used protected leave can support a pretext argument, and the record of how you handled similar incidents is your answer to it. The general rules for off-duty conduct policies apply here too.

How does an off-duty DWI or drug arrest affect unemployment benefits?

Minnesota’s unemployment law can count off-duty conduct as misconduct. Under Minn. Stat. § 268.095, misconduct includes serious conduct “on the job or off the job”; conduct caused by a substance use disorder generally is not misconduct, but an impaired-driving violation that adversely affects the employment is.

Minn. Stat. § 268.095, subd. 6, defines employment misconduct as “any intentional, negligent, or indifferent conduct, on the job or off the job, that is a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.” It then excludes “conduct that was a consequence of the applicant’s substance use disorder, unless the applicant was previously diagnosed with substance use disorder or had treatment for substance use disorder, and since that diagnosis or treatment has failed to make consistent efforts to control the substance use disorder.”

Paragraph (c) carves out impaired driving: “Regardless of paragraph (b), clause (9), conduct in violation of sections 169A.20, 169A.31, 169A.50 to 169A.53, or 171.177 that adversely affects the employment is employment misconduct.” Those sections are Minnesota’s driving-while-impaired and chemical-testing laws. Whether the violation adversely affects the employment is the question paragraph (c) asks. A single incident still counts for something: under paragraph (d), “that is an important fact that must be considered.” Subdivision 6a treats an act “on the job or off the job, that would amount to a gross misdemeanor or felony” as aggravated misconduct “if the act had a significant adverse effect on the employment.” More on misconduct that disqualifies a former employee from unemployment benefits.

What should an off-duty substance policy say?

A Minnesota off-duty substance policy should tie any off-duty restriction to a named exception in Minn. Stat. § 181.938, include the contents DATWA requires for testing, and base discipline on job performance and on-duty conduct, because those are the grounds the statutes leave open.

Minn. Stat. § 181.952, subd. 1, requires a testing policy to state, among other items, “the right of an employee or job applicant to refuse to undergo drug and alcohol and cannabis testing and the consequences of refusal” and “any disciplinary or other adverse personnel action that may be taken based on a confirmatory test verifying a positive test result on an initial screening test.” Subdivision 2 requires written notice of the policy “to all affected employees upon adoption of the policy,” among other notice duties. When I read one employer’s draft testing policy, the provisions that decided whether it would hold up were the consequences for a first positive result, the treatment referral, and the rule treating a refusal as grounds for termination. That employer also kept its commercial drivers under a separate federal policy.

Minnesota courts have long recognized that employee handbooks can create unilateral contract obligations, so a promise written into your policy, such as a treatment step or a warning before discharge, can become a term you are held to.

I suggest four drafting choices, each because of a specific statute:

• Name the job and the reason for any off-duty restriction, because § 181.938, subd. 3, asks whether it relates to “a particular employee or group of employees.”
• Separate on-duty rules from off-duty conduct, because under § 181.952, subd. 3, you “may only enact and enforce written work rules” on cannabis use, possession, or impairment while working, on your premises, or in your equipment “in a written policy that contains the minimum information required by this section,” and § 181.953, subd. 10a, lists discipline under those written work rules as one of its separate grounds.
• Write the first-positive treatment step into the policy, including the consultation with a certified chemical use counselor or physician that selects the program, because § 181.953, subd. 10, requires it before discharge.
• Apply the policy the same way each time, because the pretext argument in the section above feeds on exceptions. See inconsistent policy enforcement and handbook drug and alcohol policies.

How should you decide an off-duty substance case?

Off-duty drinking and cannabis use are protected in Minnesota unless a statutory exception applies, and off-duty illegal drug use is unprotected, though any test you use to find it must follow DATWA. The decisions that hold up rest on job performance, on-duty conduct, a documented occupational requirement, or a federal rule, applied the same way to each employee. Disability law and the other protected-activity statutes shape the timing and the record. If you are weighing a discipline decision or drafting a substance policy, email me at aaron@aaronhall.com with a brief description of the situation. I can tell you which of these rules your decision turns on and whether your policy contains the terms DATWA requires. More on how employers handle these matters is on my Minnesota employment law page.