(dissenting).
I respectfully dissent.
In testing Copeland after having reasonable suspicion of drug use, the police department was following the requirements of Minn.Stat. § 181.951, subd. 5. Subdivision 1(a) of that statute states:
An Employer may not request or require an employee * * * to undergo drug * * * testing except as authorized in this section.
Thus, requesting an employee to submit to a drug test triggers the “Drug and Alcohol Testing in the Workplace” statutes as a whole. See Minn.Stat. §§ 181.950-.954. This includes Minn.Stat. § 181.953, subd. 10, which requires that an employer first offer a drug rehabilitation program and *508that the employee refuse or fail to complete such a program before discharging “an employee on the basis of a positive [drug] test result.” Id., subds. 10(a), (b).
The Minneapolis Police Department failed to make any offer of drug rehabilitation to Copeland, pursuant to Minn.Stat. § 181.953, subd. 10(b)(1), after testing him and, in discharging him, failed to comply with section 181.953.
The Commission argues that section 181.-953 merely precludes use of positive test results, not admissions gained through the use of the test, as a basis for employee discharge.
This court recently addressed the issue of what evidence is excluded by the statute in question, in City of Minneapolis v. Johnson, 450 N.W.2d 156 (Minn.App.1990). Johnson was a police officer who was identified through an independent FBI investigation as a drug user. He later admitted, in a police department interview, to illegal drug use on two occasions and a failure to intervene when observing drug use at a party. He was then given a drug test. The AU specifically found that Johnson’s misconduct was not the result of any chemical dependency and concluded that he would have been discharged regardless of the positive test results. Id. at 158.
This court in Johnson stated that Minn. Stat. § 181.953, subd. 10(b),
prohibits discharge of an employee after the first [drug] test unless the employer has first provided the opportunity for drug or alcohol counseling and rehabilitation and the employee has either refused to participate or has participated but has failed to successfully do so.
Id. at 160 (emphasis in original). Thus, the Johnson court recognized that the focus of subpart (b) is on rehabilitation of chemically dependent employees whose problem is discovered pursuant to the statutory testing procedures. The firing of Johnson could be justified, as a matter of law, because his misconduct was not due to drug dependency and because his drug use was uncovered by an independent investigation, not pursuant to a drug test. Because the Minneapolis Police Department failed to comply with the statute with regard to Johnson, this court held:
The test results and all related allegations cannot be considered evidence of just cause for discharge and must be disregarded.
Id. at 160.
The distinction of this case from the Johnson case is that here the AU specifically concluded that all of Copeland’s misconduct “emanated directly from his chemical dependency” and this was the misconduct the AU relied upon in upholding the police department’s recommendation for termination.
A further distinction between this case and Johnson is that Johnson’s misconduct was uncovered by an independent FBI investigation, while Copeland’s misconduct was only revealed pursuant to his submission to drug tests given under the procedures mandated by Minn.Stat. § 181.950-.954. Thus, consistent with Johnson, this termination cannot be upheld.
The legislature’s purpose in passing sections 181.950-.954 was to ensure that employers offer assistance to chemically dependent employees to try to salvage their lives and careers. Accordingly, the statute mandates an offer of drug rehabilitation and either refusal or failure to complete rehabilitation before discharging an employee based on positive drug test results and admissions stemming from such test results.
In this case and in Johnson it seems the City of Minneapolis was determined not to apply the drug testing statutes to police officers. There may be reason to forge a complete exception to the statute for law enforcement officers, airline pilots, railroad engineers or medical and paramedical employees, where public health and safety could be considered to be of immediate concern and paramount to the societal interest in rehabilitation of productive employees. If so, the legislature could so act.
Section 181.953, subd. 10(c), does provide a safety-related exception of sorts. An employer may temporarily suspend or trans*509fer an employee who tests positive pending the outcome of the required confirmatory retest, if the employer feels a suspension or transfer is necessary to protect public health or safety. Id. Thus, under the present legislative scheme, if employees who affect public health and safety are to be treated differently, the legislature has provided a specific mechanism to provide for the protection of the public and limited the remedy available to the employer. Id.
It should be noted that Copeland cooperated fully and told IAD investigators everything about his drug supplier. His admissions resulted in a successful seizure of drugs and the arrest of that drug dealer. To apply section 181.953, subd. 10, to preclude only the use of test results would ensure that, in future, any officer in such a position will refuse to make drug-related confessions after a positive test result in order to avoid discharge. The negative societal consequences of allowing drug dealers to remain at large cannot be intended by the city fathers. I would reverse on the authority of Johnson.