The Minnesota Court of Appeals handed employers a rare win under the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), upholding dismissal of a wrongful discharge case after an employee who tested positive for drugs did not comply with the recommended treatment because he wanted to choose a different treatment program. Jones v. Green Bay Packaging, Inc., No. A15-0017 (Minn. Ct. App. Aug. 10, 2015).

By way of background, DATWA, which is codified in Minnesota Statutes Sections 181.950-957, provides specific limitations on how and when employers in Minnesota may test employers and applicants for drugs or alcohol. Among other things, DATWA restricts employers from discharging employees as the result of a first positive drug or alcohol test unless two conditions are satisfied:

  1. the employer has first given the employee an opportunity to participate in, at the employee’s own expense or pursuant to coverage under an employee benefit plan, either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of chemical dependency; and
  2. the employee has either refused to participate in the counseling or rehabilitation program or has failed to successfully complete the program, as evidenced by withdrawal from the program before its completion or by a positive test result on a confirmatory test after completion of the program.

Minn. Stat. § 181.953, subd. 10(b) (2014). (emphasis added)

The plaintiff in this case, Jones, tested positive for marijuana after a workplace accident. Green Bay Packaging presented Jones with a Conditional Reinstatement Agreement (“CRA”), which provided that Jones could retain his employment if he (1) immediately submitted to evaluation by a chemical dependency treatment center approved by Green Bay Packaging, and (2) successfully participated in treatment at that treatment center for the amount of time recommended by the center. The CRA listed treatment centers that Green Bay Packaging had already approved and stated that “additional facilities could be approved by the company.”

Jones then asked that he be allowed to participate in evaluation and treatment at two facilities which were not listed in the CRA, one of which was Riverplace Counseling Centers. Green Bay Packaging approved both additional treatment centers. Jones visited Riverplace for a chemical dependency assessment. After the assessment, Riverplace recommended that Jones receive outpatient chemical dependency treatment at its facility four times per week.

Jones signed the CRA on May 22, but informed Green Bay Packaging on May 24 that he wished to receive his treatment at another facility, Grace Counseling Services. He claimed that he could not afford the gas required to attend the program at Riverplace because it was a 30-minute commute from his home. He requested that Green Bay Packaging approve treatment at Grace because the facility was near his home and its program met only twice per week. Green Bay Packaging denied the request and told Jones that he would be fired if he did not participate in the recommended treatment program at Riverplace. Jones did not participate in the treatment program at Riverplace. Green Bay Packaging then terminated Jones’ employment.

Jones sued Green Bay Packaging as a pro se plaintiff for wrongful discharge under DATWA. The district court dismissed the case on summary judgment and Jones appealed. The issue for the courts was a fairly straightforward matter of statutory interpretation, specifically the phrase “as determined by the employer.” Affirming dismissal, the appellate court held that “[t]he plain language of this phrase provides that the employer must give the employee the opportunity to attend either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate, indicating only that the employer is tasked with deciding whether counseling or rehabilitation is more appropriate for the employee.” The result is that employees do not have the unfettered right to choose a treatment center or treatment program.

While the result of the Court’s decision was not surprising, the decision highlights how critical employer engagement is when complying with this statute, including after an employee tests positive. Even if an employer has a compliant policy and conducts testing in a compliant manner, it must still interact with the employee who tests positive to work out and agree on a treatment program, and then continue to monitor the status and ultimate completion of the program. Allowing the employee free reign to choose his or her own program can be problematic, as a federal court in Minnesota has suggested there is no limit on the length of treatment under the statute, other than what is agreed to up front. This level of engagement may require time and commitment by Human Resources personnel but should not be overlooked.

Finally, the decision also highlights the usefulness of a written return to work agreement or, in this case, a “CRA.” The DATWA statute does not require or even mention a CRA or return to work agreement, but employers in Minnesota typically rely on them to confirm that all parties understand their rights and obligations in this situation, and the Court’s implicit endorsement in Green Bay Packaging makes this a best practice for all Minnesota employers.