Six common pre-employment drug testing mistakes are charging applicants, skipping policy notices, mixing testing routes, losing transfer records, missing follow-up windows and overlooking disability duties.
Key takeaways
- Do not ask an applicant to pay for testing if you are unsure which exception applies.
- Verify chain-of-custody documentation, including transfer times and signatures, before finalizing a hiring decision.
- Do not conflate the no-cost laboratory follow-up test with the applicant-paid confirmatory retest requested after a positive result.
- Confirm the testing route and laboratory credentials match the governing statute before selecting a method.
- Do not treat policy-review notices as a complete applicant consent process; they address notice and comment only.
Pre employment drug testing: mistakes and the direct fixes
The first error is charging applicants without checking payment rules. Under Sec. 181.953 MN Statutes, an employer may not request or require a job applicant to contribute to, or pay the cost of, drug or alcohol testing, according to Minnesota Legislature, Office of the Revisor of Statutes. This restriction includes cannabis testing under sections 181.950 to 181.954. The rule contains a specific exception: it applies except as provided in subdivision 9. Do not treat this general ban as absolute. Before assigning any cost, check whether your testing scenario falls under that exception and review the full text of subdivision 9. If you are unsure, do not ask the applicant to pay. One jurisdiction's rule does not apply everywhere, so check your local statutes for similar provisions. Ensure your screening vendor invoices align with these payment responsibilities. If the law prohibits the charge, process the invoice through your company account. This prevents disputes during the hiring review. Distinguish between requesting payment and requiring it; both are prohibited by the quoted provision. Document your compliance decision in each applicant record where testing occurs.
First, separate employee policy review notices from applicant testing procedures; if the department finds a policy defective, it notifies the employer of specific areas in which the policy is defective, according to Maine Legislature. Second, document laboratory chain-of-custody procedures precisely; a non-certified testing laboratory must follow the chain-of-custody procedures prescribed for employers, according to Minnesota Legislature, Office of the Revisor of Statutes. Third, track applicant follow-up rights separately from general payment rules; within 48 hours of an oral fluid test indicating a positive result or that is inconclusive or invalid, the job applicant may request drug or alcohol testing at no cost, according to Minnesota Legislature, Office of the Revisor of Statutes. Keep these categories distinct to avoid conflating procedural requirements with substantive legal standards.
Before testing: missing policy notices and using the wrong route
Recruiters should check who pays for testing and distinguish the general payment prohibition from expressly identified retest exceptions. Under Maine's rules, notice must be given to employees of any employer who submits a written policy or amendment for review under Title 26, §686, according to Maine Legislature. If the department finds that the policy or change does not comply with this subchapter, it shall also notify the employer of the specific areas in which the policy or change is defective, according to Maine Legislature. Employees may submit written comments to the department challenging any portion of the employer's written policy, including the proposed designation of any position under section 684, subsection 3, paragraph B, according to Maine Legislature.
For Minnesota testing routes, Sec. 181.953 MN Statutes sets a default requirement to use a licensed, accredited, or certified laboratory, according to Minnesota Legislature, Office of the Revisor of Statutes. An employer may request an employee or job applicant to undergo oral fluid testing as an alternative to using the services of a testing laboratory under subdivision 1 when drug and alcohol testing or cannabis testing is otherwise authorized under section 181.951, according to Minnesota Legislature, Office of the Revisor of Statutes. That oral fluid alternative is an exception to the laboratory default. Confusing these permitted testing routes leads to procedural errors. Verify whether your jurisdiction authorizes oral fluid testing before selecting a method, and record which route you selected in the applicant file. Keep laboratory-based testing and oral fluid alternatives distinct in your records, and keep employee policy reviews separate from applicant testing protocols.
During testing: losing transfer records or misallocating costs
Recruiters should verify chain-of-custody documentation and confirm who pays for confirmatory retests before finalizing a hiring decision. Under Sec. 181.953 MN Statutes, a testing laboratory not certified by the National Institute on Drug Abuse must follow the chain-of-custody procedures prescribed for employers, according to Minnesota Legislature, Office of the Revisor of Statutes. However, these specific chain-of-custody procedures do not apply to oral fluid testing under subdivision 5a, as noted in the same source. When handling covered samples, individuals relinquishing or accepting possession must record the time the possession was transferred and sign and date the chain-of-custody record at that moment, according to Minnesota Legislature, Office of the Revisor of Statutes. Missing these signatures and timestamps leaves a gap in the documented transfer history. For a broader file check, see recruiting records audit.
Cost allocation for subsequent tests requires careful distinction. If an initial laboratory test indicates a positive result, any subsequent confirmatory retest requested by the employee or job applicant must be conducted at the employee's or job applicant's own expense, following specific retest procedures outlined in the statute, according to Minnesota Legislature, Office of the Revisor of Statutes. Do not assume all testing is employer-paid; the statute assigns the cost of this specific type of requested retest to the individual.
| Documentation Requirement | Source Provision | Publisher |
|---|---|---|
| Record transfer time and obtain signatures/dates | Individuals relinquishing or accepting possession must record time and sign/date the record | Minnesota Legislature, Office of the Revisor of Statutes |
| Follow employer-prescribed procedures if uncertified | Non-NIDA certified labs must follow chain-of-custody procedures prescribed for employers | Minnesota Legislature, Office of the Revisor of Statutes |
| Applicant pays for confirmatory retest | Subsequent confirmatory retest after positive result is at employee/applicant expense | Minnesota Legislature, Office of the Revisor of Statutes |
Review your current sample transfer forms to ensure they include fields for time, signature, and date at each handoff.
After results: missing follow-up windows and misreading disability provisions
Recruiters should track two distinct timeframes for applicant follow-ups under Minnesota law. First, within 48 hours of an oral fluid test that indicates a positive result or is inconclusive or invalid, the employee or job applicant may request drug or alcohol testing or cannabis testing at no cost to them using the services of a testing laboratory under subdivision 1, according to Minnesota Legislature, Office of the Revisor of Statutes. Second, within three working days after notice of a positive test result on a confirmatory test, the employee or job applicant may submit information to explain that result, or they may request a confirmatory retest of the original sample at their own expense as provided under subdivision 9, according to Minnesota Legislature, Office of the Revisor of Statutes.
| Follow-up Action | Time Window | Cost Responsibility |
|---|---|---|
| Request no-cost laboratory follow-up test | Within 48 hours of positive, inconclusive, or invalid oral fluid test | No cost to employee or job applicant |
| Submit explanation or request confirmatory retest | Within three working days after notice of positive confirmatory test | Employee's or job applicant's own expense |
Illustrative example: applicant follow-up timing
Suppose an applicant's oral fluid test is positive on Monday. The applicant has 48 hours to request a laboratory test at no cost. If that test is also positive and the applicant requests a confirmatory retest, the retest is at the applicant's own expense. The applicant then has 3 working days after notice of the result to submit an explanation.
When evaluating whether an individual with a disability can undertake job-related responsibilities, Wisconsin law allows consideration of the present and future safety of the individual, their coworkers, and the general public, according to Wisconsin State Legislature. However, this safety consideration is separate from the duty to accommodate. Refusing to reasonably accommodate an employee's or prospective employee's disability is prohibited unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business, according to Wisconsin State Legislature.
Drug screening mistakes reference table by publisher
The table below lists the specific provisions for each source.
| Publisher | Rule or Definition | Specific Provision Quote |
|---|---|---|
| Maine Legislature | Employee policy review comments | "The employees may submit written comments to the department challenging any portion of the employer's written policy, including the proposed designation of any position under section 684, subsection 3, paragraph B." according to Maine Legislature |
| Minnesota Legislature, Office of the Revisor of Statutes | Required laboratory testing credentials | "Subdivision 1.Use of licensed, accredited, or certified laboratory required." according to Minnesota Legislature, Office of the Revisor of Statutes |
| Minnesota Legislature, Office of the Revisor of Statutes | Testing payment prohibition exception | "Except as provided in subdivision 9, an employer may not request or require an employee or job applicant to contribute to, or pay the cost of, drug or alcohol testing or cannabis testing under sections 181.950 to 181.954." according to Minnesota Legislature, Office of the Revisor of Statutes |
| Wisconsin State Legislature | Prospective employee accommodation duty | "111.34(1)(b)(b) Refusing to reasonably accommodate an employee’s or prospective employee’s disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer’s program, enterprise or business." according to Wisconsin State Legislature |
| U.S. Equal Employment Opportunity Commission | Scoped current illegal-use exclusion | "For purposes of subchapter V of this chapter [29 U.S.C. § 790 et seq.], the term \"individual with a disability\" does not include an individual who is currently engaging in the illegal use of drugs, when a covered entity acts on the basis of such use." according to U.S. Equal Employment Opportunity Commission |
| Minnesota Legislature, Office of the Revisor of Statutes | Sample transfer documentation | Record the transfer time and obtain signatures and dates for covered sample transfers according to Minnesota Legislature, Office of the Revisor of Statutes |
| Minnesota Legislature, Office of the Revisor of Statutes | Follow-up windows | Track the 48-hour oral-fluid follow-up request window and the three-working-day confirmatory-result response window separately according to Minnesota Legislature, Office of the Revisor of Statutes |
What to keep: policy correspondence and sample transfer records
File any policy-defect notice separately from applicant files, such as in your policy or compliance records. This documentation records compliance issues identified by the reviewing authority.
When managing sample transfers during the testing phase, document the time of transfer and obtain required signatures and dates. These chain-of-custody details are critical for verifying the integrity of the sample from collection through analysis. Missing these data points can create gaps in the record that complicate any later review of the testing procedure. For how to record the hiring decision itself, see Hiring Decision Debrief: Notes to a Recorded Decision.
Related guides: Applicant data requests: 4 privacy office guides · Employment verification requirements: 5 checks for new hires · Immigration employment rules: 6 topics for hiring.
FAQ: applicant drug screening errors and exceptions
What mistakes should recruiters avoid in pre employment drug testing?
Avoid missing policy review notices, confusing permitted testing routes, leaving sample transfers undocumented, charging applicants without checking exceptions, ignoring applicant follow-up windows, and overlooking disability accommodation duties. These six errors stem from misapplying specific jurisdictional rules regarding payment, documentation, and rights. Recruiters should verify each step against the relevant source provisions to prevent procedural defects.
Can a Minnesota employer make an applicant pay for every drug test?
No, except as provided in subdivision 9, an employer may not request or require an employee or job applicant to contribute to, or pay the cost of, drug or alcohol testing or cannabis testing under sections 181.950 to 181.954, according to Minnesota Legislature, Office of the Revisor of Statutes. The general rule prohibits shifting these costs to the individual unless a specific exception applies.
When can an applicant request laboratory testing after an oral fluid result?
Within 48 hours of an oral fluid test that indicates a positive test result or that is inconclusive or invalid, the employee or job applicant may request drug or alcohol testing or cannabis testing at no cost using the services of a testing laboratory, according to Minnesota Legislature, Office of the Revisor of Statutes. This request must follow existing laboratory testing standards in subdivisions 1 to 5.
How must covered Minnesota sample transfers be documented?
Individuals relinquishing or accepting possession of the sample must record the time the possession of the sample was transferred and must sign and date the chain-of-custody record at the time of transfer, according to Minnesota Legislature, Office of the Revisor of Statutes. This requirement ensures the integrity of the sample handling process.
Does Wisconsin's accommodation provision include prospective employees?
Yes, refusing to reasonably accommodate an employee’s or prospective employee’s disability is prohibited unless the employer can demonstrate that the accommodation would pose a hardship on the employer’s program, enterprise or business, according to Wisconsin State Legislature. The duty applies before a person is formally hired.
Before you finish, review one applicant screening file against these provisions today, and fix any gap before the next hire.