Drug & Alcohol Testing, Employment of Minors, Quirky Question # 13

Quirky Question # 13:

I read your Quirky Question # 12 regarding sexual harassment and the issue of whether the policies need to be tailored to minors.  Your question alerted me to a related issue.  Like the company described in your last question, our firm also employs a number of minors under age 18.  We have a pre-employment and post-accident drug and alcohol testing policy.

We are wondering whether the minors’ parents have to sign the authorization for the drug testing?  Do the minors themselves?  Is a drug-testing authorization signed by the parents at the start of the minors’ employment sufficient to cover all future drug and alcohol testing of the minors?

Dorsey’s Analysis:

Good questions. Unfortunately, the answer under Minnesota law is not clear. (Laws of other states may differ.) Your company will need a consent for this testing, but the law is vague as to whether minors can effectively consent to medical procedures.

We recommend a conservative approach. Companies want their drug testing process to be fair and reasonable, to non-minors and minors alike. In addition, companies want to eliminate the prospect that parents will object to such tests after the fact, or insist that they should have been informed in advance. Therefore, we recommend that both the minor and the parent sign the consent form.  (This conservative approach is consistent with the 7th Circuit’s analysis described in QQ # 12, where the appellate court pointed out that in certain circumstances minors must act through their parents or other legal guardians.)

Of course, this can lead to another, equally important issue. Let’s assume that the parents and the minor both sign the consent form, and the test is conducted. Let’s assume further that the test results demonstrate that the minor has been ingesting drugs. Who gets the test results? The drug testing statute says that the “applicant” gets the results, and it includes a lot of privacy provisions.  HIPAA issues may be implicated as well. Consequently, we recommend only providing the results of the test to the minor, unless the minor provides permission in writing to the employer to release the test results to the parents.

An even safer and more proactive approach, that would provide for complete transparency,  would be to advise the minor applicant and the co-signing parent, at the time the consent form is executed, that the results only will be shared with the minor, absent a specific, written directive from the minor and parent. Without that written instruction, a parent would be hard pressed to argue that he/she should have been provided with a copy of the test results.

Finally, there is a question in Minnesota regarding whether a consent signed at the outset of employment is effective on an ongoing basis. Minnesota’s drug testing statute has a provision requiring employers to give written notice of the testing policy upon hire or adoption of the policy. See Minn. Stat. § 181.952, Subd. 2. There is a separate provision requiring the employer to give the employee/applicant a form on which to acknowledge that they have seen the policy before requesting a test. Minn. Stat. § 181.953 subd. 6(a). We are not aware of any case law discussing whether one notice can satisfy both of these requirements. Adhering, then, to the generally conservative approach described above, our recommendation is to have minors and their parents sign a separate acknowledgment at the time the minors are asked to take a drug or alcohol test not linked to the hiring process.

Lastly, as the 7th Circuit’s analysis illustrates (see QQ # 12), your company’s drug and alcohol testing policy will need to be written in a way that minors can understand. (We also recommend that you include a provision in your company’s drug and alcohol testing policy specifically stating that your company reserves the right to impose discipline, up to and including termination, upon someone who refuses to take an appropriate drug or alcohol test.)

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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