Minnesota Federal Court Finds “Field Preemption” of Minnesota Drug Testing Statute
It has long been recognized that federal regulations mandating drug testing for certain employees in safety-sensitive industries preempt contrary provisions in Minnesota’s state drug testing law known as “DATWA” (Drug and Alcohol Testing in the Workplace Act). But some Minnesota practitioners have argued for years that employee protections in DATWA should not be preempted if they are not explicitly in conflict with federal law. A recent order from the District of Minnesota has likely put an end to this line of reasoning. MN Airlines, Inc., d/b/a Sun Country Airlines v. Levander, No 15-CV-2454 (PAM/BRT) (D. Minn. Aug. 28, 2015).
The employee was a flight attendant who was required to be drug tested under The Omnibus Transportation Employee Testing Act of 1991 (“OTETA”) and regulations promulgated by the Federal Aviation Administration (“FAA”). The OTETA is a federal law that requires drug and alcohol testing of safety-sensitive transportation employees in the aviation, trucking, railroad, mass transit, pipeline and maritime industries. After testing positive on a random drug test, the employee was terminated. Her attorney, however, contacted her employer, Sun Country Airlines, and threatened a lawsuit under DATWA, which, among other things, prohibits an employer from terminating an employee for a first-time positive without first allowing the employee an opportunity to participate in and complete a drug counseling or rehabilitation program.
Sun Country took the initiative and filed suit first, in federal court, seeking a declaratory judgment that DATWA was completely preempted in this circumstance. Levander’s attorney argued that federal law does not require an employer to terminate an employee in a safety-sensitive position for a positive drug test, and therefore state and federal law could be applied in harmony. The Court disagreed.
The Court discussed the difference between the more narrow type of “conflict preemption” and the broader implications of “field preemption.” Here, it concluded, the FAA has “preempted the field of drug testing of airline personnel” and DATWA was therefore preempted in all aspects. Specifically:
The regulations promulgated under OTETA “preempt any State or local law, rule, regulation, order, or standard covering the subject matter” of those regulations, “including, but not limited to, drug testing of aviation personnel performing safety-sensitive functions.” . . . Rarely is the intent of a law so clear: states may not regulate the drug testing of aviation personnel performing safety-sensitive functions. The DATWA purports to do just that, by precluding airlines from terminating the employment of such personnel for an initial positive drug test. As such, it is preempted.
Although the holding appears limited to preemption by FAA regulations, it seems likely that courts would apply the same reasoning to preemption by other U.S. Department of Transportation regulations promulgated pursuant to OTETA such as those for drivers of commercial motor vehicles, among others. This decision resolves years of speculation that both federal and Minnesota state law might apply in some of these situations. it is unknown whether the decision will be appealed.