Wehlage v. ING Bank: Terminating Employees Pursuant to the Drug and Alcohol Testing in the Workplace Act

In Wehlage v. ING Bank, an employee of ING sued alleging that his termination violated the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA), Minn. Stat. §§ 181.951 – 181.957. This statute governs drug and alcohol testing for all employees and employers located or doing business in Minnesota with one or more employees, including all political and governmental subdivisions of the state. This law is of general applicability to employees, whether or not they are transportation employees performing safety-sensitive functions.1

Wehlage began working at ING in 2002 in ING’s IT department. Wehlage was a methamphetamine user. In July 2005, Wehlage told his immediate supervisor that he planned to enter a drug treatment program. Wehlage entered a treatment facility August 9, 2005, and was off work for in-patient and out-patient treatment until September 12, 2005, when he returned to work.

On November 9, 2005, ING’s Human Resources Department asked Wehlage to submit to a drug test pursuant to the company’s DATWA drug and alcohol testing policy. Wehlage admitted that he would test positive but submitted to the test anyway, which was positive. Wehlage was given the choice of resigning with a severance package or going to drug treatment. He chose the latter.

Wehlage entered the drug treatment program in mid-November 2005. Over the next several months, his doctor revised and extended the estimate as to how long the treatment program would take to complete and how much time off Wehlage would need. Initially the doctor estimated three months, but ultimately estimated that the treatment would extend through October 2006, more than eleven months after Wehlage entered the treatment program.

In February 2006, ING’s HR Department, that was responsible for administering benefits, informed Wehlage that he was terminated effective March 1. At the time of his termination, Wehlage was in the second phase of a three phase treatment program. Wehlage sued contending that in firing him, ING violated the DATWA.

DATWA both limits the ability of employers to subject their employees to drug tests and restricts how the employer may use the results of such tests. In the Wehlage case, the employee contended that because he entered a treatment program after he tested positive for methamphetamine, DATWA prohibited ING from firing him while he was still in the program. The court agreed.

While Minnesota is an employment “at-will” state, where employees can be fired at any time for any reason unless they have a contract, there are exceptions. These exceptions include termination for any unlawful reason, such as discrimination. Another of those exceptions is found in subdivision 10(b) of DATWA. This subdivision specifically limits the rights of employers to fire employees based on the results of a confirmed, positive drug test. The statute, in pertinent part, states:

[A]n employer may not discharge an employee for whom a positive drug 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…either a drug or alcohol counseling or rehabilitation program…; 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 a 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) (emphasis added).

The statute requires that after the first positive test, the employee must be given the opportunity for treatment and the employee cannot be terminated unless the employee refuses the offer, fails to complete the program or has a second positive test after treatment is completed.

The court held that Wehlage was terminated after the first test while he was still in the treatment program, in violation of the DATWA requirements. Wehlage had neither failed to complete the program nor had he failed a second test. Because ING fired Wehlage for absenteeism while he was participating in the program, DATWA was violated. The court went on to state that even though Wehlage was unable to work for eleven months he was not deprived of the protections of DATWA because DATWA does not contain any time limits on the length of time an employee can stay in a rehabilitation program.

ING had argued that Wehlage had already participated in one drug treatment program in August 2005, prior to the drug test, and that this met the requirement that he be allowed to participate in a treatment program. The court rejected this argument, holding that only a treatment program entered into after the first test met the requirements of the act. A voluntary treatment program entered into by the employee prior to the initial test under the statute did not meet the statutory requirements of DATWA.

In conclusion, the Wehlage v. ING Bank case makes the requirements of DATWA clear. If an employee tests positive on a drug test for the first time, the employee must be given the opportunity to participate in a drug rehabilitation program after that test. Any prior treatment program the employee may have entered into before the test cannot be counted. While the employee is participating in that drug rehabilitation he/she cannot be fired. Only if the employee refused to participate in or fails to successfully complete the program can the employee be terminated.

It should be noted, however, that the court recognized DATWA does not limit the ability of an employer to fire an employee for reasons unrelated to the drug testing. Absenteeism that results from the employee’s attendance at a treatment program pursuant to DATWA, however, is not an independent basis for termination.

1 The federal Omnibus Transportation Employee Testing Act (OTETA) applies to safety-sensitive transportation employees. The provisions of OTETA contain some different and additional provisions which are not addressed in this article.

NOTE: The purpose of this presentation, and the accompanying materials, is to inform you of interesting and important legal developments. While current as of the date of presentation, the information given today may be superseded by court decisions and legislative amendments. We cannot render legal advice without an awareness and analysis of the facts of a particular situation. If you have questions about the application of concepts discussed in the presentation or addressed in this outline, you should consult your legal counsel. ©2009 Ratwik, Roszak & Maloney, P.A.

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Ann Goering

About Ann Goering

Ann Goering is a shareholder of Ratwik, Roszak & Maloney, P.A. Ms. Goering joined the firm in 1990 and became a shareholder in January 1998. Ann primarily represents public sector entities, such as school districts, counties and cities. Her areas of practice include all aspects of labor and employment law, including employee leaves, addressing disability discrimination claims and the need for reasonable accommodations, the discipline and discharge of public employees, grievance arbitrations, comparable worth, employee evaluations, reductions in force, labor negotiations, and discrimination investigations and claims. She also has extensive experience with respect to municipal powers and duties, including data privacy laws and the Minnesota Open Meeting Law. She practices in all aspects of school law, including student rights and first amendment issues. Ann has represented numerous public sector entities in civil litigation and administrative proceedings involving claims of discrimination, harassment, defamation and other powers and duties of public employers Ann is a frequent speaker at seminars for public sector entities, including those put on by the Minnesota Counties Insurance Trust, the Minnesota Community Action Partnership, the Minnesota Police Chiefs Association, the Minnesota Child Welfare Training System, and several Service Cooperatives. She has contributed to publications put out by the Association of Minnesota Counties and the Minnesota Counties Insurance Trust.