A “confirmatory” test is simply a second test done on the same specimen after a first
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“initial screening” test has come back positive. From a practical perspective, the “confirmatory”
test result is the only result that matters, since every positive initial screening test is followed by a
confirmatory test. See Minn. Stat. § 181.953 subd. 10(a) (“An employer may not discharge,
discipline, discriminate against, or request or require rehabilitation of an employee on the basis
of a positive test result from an initial screening test that has not been verified by a confirmatory
(continued...)
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Under Minnesota law, most employment is at-will, and thus employees can be fired for
any reason or no reason — with rare exceptions. See, e.g., Martens v. Minn. Mining & Mfg. Co.,
616 N.W.2d 732, 741 (Minn. 2000). One of those rare exceptions is found in subdivision 10 of
§ 181.953 of the Minnesota Statutes, which limits the right of employers to fire or otherwise
discipline employees based on the results of a drug test. Minn. Stat. § 181.953 subd. 10.
Specifically, subdivision 10(b) of § 181.953 provides:
[A]n employer 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 requested by the employer
unless the following conditions have been met:
(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).
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