Navigating Iowa’s Employment Drug Testing Law

For the client-exclusive Law & the Workplace webinar series, labor and employment attorney Ben Roach examined the requirements of Iowa’s employment drug testing laws.

 

A lot of rules govern employment drug testing in Iowa. Even the Iowa Supreme Court described the Iowa statute as byzantine. Despite the challenges, the courts expect substantial compliance with Iowa Code Section 730.5.

 

Why Employers Might Test

Safety. Employers might choose to test employees who work in situations that are potentially dangerous to themselves, coworkers, or the public.

 

The Governor’s Office of Drug Control reports that 77 percent of drug abusers are employed in some capacity. They are more likely to have an accident. They are more likely to file workers compensation claims.

 

Workplace satisfaction. Coworkers don’t like being put at risk. They report being injured, being put in danger, or having to do more work because of coworkers’ drinking. Also, employees with substance abuse issues are absent more often.

 

Workers compensation defense. An amendment to the workers compensation statute can provide a benefit for employers. A valid positive drug or alcohol test after an accident causing injury creates a presumption that intoxication was a substantial factor. The change flips the burden of proof. It places the burden on the employee to prove drug or alcohol abuse did not factor into the injury. For employers, that can be an important tool in defending workers compensation claims.

 

What Governs Drug Testing in Iowa

Iowa Code Section 730.5 applies to all private employers in Iowa who conduct drug or alcohol testing. The Iowa law does not mandate that employers test. It sets the rules if an employer is going to test.

 

Federal laws do require employee drug testing for some employers. For example, drug tests are required for commercial drivers. Department of Transportation rules apply. If any employee is covered by a federal law or regulation, federal laws govern the employer and the Iowa statute does not apply. Government employers are not covered by Iowa’s drug testing law.

 

Basic Rules for Drug Testing in Iowa

Iowa’s drug testing law sets specific rules for employers who test employees for alcohol or drugs. The rules require:

• A written drug testing policy with specific elements included.
• Distribution of the drug testing policy to all employees.
• Availability of the policy to all applicants.
• Supervisor training.
• Strict notice requirements after a positive test result.

 

The written drug testing policy must:

• Tell employees when the employer is going to test.
• Inform employees what drugs will be tested for.
• Explain the disciplinary action for a failed test or refusing a test.
• Include a drug and alcohol awareness program. An employee assistance program (EAP) qualifies. If the employer does not have an EAP, it must establish a resource file of information about the downsides of substance abuse.

 

When Employers Can Drug Test

An employer’s drug testing policy must explain the circumstances in which drug testing will take place. The five permitted situations must be included in the drug testing policy.

• pre-employment
• random or unannounced
• reasonable suspicion
• post-accident
• post-rehabilitation

 

Pre-employment. The majority of employers choose post-offer testing. Until an employer wants to make a job offer, there’s little reason to go through the cost and hassle of a drug or alcohol test.

 

The statute requires employers to pay all the costs of a drug test. If the first test is inconclusive and the employer requires the applicant to pass a test before employment, the employer must pay for that test too.

 

Random or unannounced. While people tend to refer to this as random testing, the Iowa statute refers to it as unannounced.

 

For unannounced testing, the first step is to set up testing pools. The Iowa statute gives three potential employee pools.

• Everyone at a worksite.
• Every full-time active employee at a worksite. This excludes part-time employees and those on leave.
• Safety-sensitive positions. This pool limits testing to employees who are in a position to most likely cause harm or damage.

 

It’s important to classify employees correctly when creating a safety-sensitive drug testing pool. The statute defines a safety-sensitive position as a job where an accident could cause loss of life, serious injury, significant property damage, or significant environmental damage. It also includes supervisors of the people who perform those duties.

 

The designation must be based on the employee’s actual job function not the general environment. For example, the pool might include workers who operate forklifts or do construction work but eliminate employees who work in the office on a construction site.

 

Reasonable suspicion. The statue defines reasonable suspicion as specific objective and articulable facts and inferences that an employee is using drugs or alcohol in violation of the written policy. Most policies use these elements:

• Direct observation of use or physical symptoms of impairment.
• Abnormal or erratic behavior.
• Reported use by a reliable and credible source.
• Evidence of tampering with the drug or alcohol test.
• Causing an accident.
• Evidence of the manufacture, sale, distribution, possession, or use while at work or on work premises.

 

The facts should be recorded so the decision can be defended later, if necessary. If the employer has trouble writing out facts to support reasonable suspicion, it should give them pause about conducting a test.

 

Document the sources of the information. Get a second opinion. If a supervisor made the report, have a human resources representative or another supervisor look at the situation.

 

Post-accident. An actual event must occur. Plus, the accident must cause property damage estimated to be at least $1,000 or an injury that must be recorded on an Occupational Safety and Health Administration (OSHA) 300 log (typically, that means an employee missed days from work or needed medical treatment beyond first aid).

 

Post-rehabilitation. If an employer allow employees a second chance after a failed drug or alcohol test, those employees can be tested after completing a rehabilitation program.

 

The Testing Process

Pre-employment, unannounced, and post-rehabilitation testing should all have established testing procedures.

 

Avoid common problems with reasonable suspicion and post-accident testing.

• Meet with the employee who has been selected for a test.
• Arrange for transportation. If the presumption is that the employee is impaired, it doesn’t make sense to allow them to drive to a lab or other testing site.
• Employers have the option to remove the employee from duty pending test results. However, if the test is negative, the employee must be returned to work with back pay.

 

As part of the testing process, an employer must provide an opportunity for the employee to provide a legitimate medical explanation for what might show up on the test, including prescribed medications taken. To maintain privacy and confidentiality, it is best for the medical review officer to obtain that information.

 

Disciplinary Action

An employer’s drug testing policy should set forth disciplinary levels. The statute also says the policy must contain uniform rules.

 

According to Iowa law, certain employers must offer an employee who fails an alcohol test a second chance if they successfully complete rehab:

• if an employer has more than 50 employees and
• if the employee at issue has been employed for more than a year.

 

The second chance is not required of smaller employers or for failure of a drug test. The law allows termination, if stated in the policy, for the first offense.

 

Notice Requirements

Iowa courts are very specific about failed drug test notices. Most problems for employers relate to failure to strictly follow notice requirements.

 

• Notice must be in writing.
• Notice must be sent by certified mail with return receipt requested.
• Notice must tell the employee they’ve had a positive test.
• It must tell the employee they can request a retest of a split sample within seven days.
• It must include the estimated cost of a retest.
• It must tell the employee they can have the sample retested at a facility of their choice.

 

Supervisor Training

Supervisory personnel involved with drug or alcohol testing must receive two hours of training when the policy is rolled out and one hour every year after that. The Iowa Supreme Court said this means those whose roles are intended to assist in recognizing patterns of drug or alcohol abuse. It likely includes those who shepherd employees through the testing process.

 

Other Testing Issues

Requests for help. If an employee request for help with drug or alcohol abuse comes when an employee is not currently selected for a test, the testing policy doesn’t apply. Instead, leave or accommodation policies may come into play.

 

If the request comes after an employee provides a sample or after being notified they have to take a test, it’s too late. The employer can proceed with testing using the testing policy.

 

Medical marijuana. Iowa’s medical marijuana law carves out employer drug testing. Employers have no obligation to allow use, alter testing programs, or exempt medical marijuana users from consequences if they test positive in an employment situation.

 

Some employers choose not to include marijuana in their policies. In that case, employers should ensure the lab does not include marijuana in the testing panel. Knowledge of possible impairment can be a liability issue.

 

Common Employer Problems

Courts have been fairly strict in their interpretation of what’s required in drug testing procedures. The official legal standard is that an employer must prove substantial compliance with all of the statute’s requirements. A few examples:

 

When employers can test. Employers can only test when authorized by statute and written policy. Even if an employee agrees to the test in writing, an employer cannot single out an employee for “random” testing. Eaton v. Iowa Employment Appeal Bd., 602 N.W.2d 503 (Iowa 1999)

 

Reasonable suspicion and lab errors. Because an employer saw an employee doing something unsafe, that alone does not meet the definition of reasonable suspicion. Also, a problem with the lab is still the employer’s problem. Artistic Solid Waste Sys., Inc. v. Employment Appeal Bd., 2002 WL 663625 (Iowa Ct. App. 2002)

 

Notice violations.

• Oral notice. The court says it doesn’t matter that the actual result wasn’t contested. Because written notice wasn’t given, that violates the statute. Harrison v. Employment Appeal Bd., 659 N.W.2d 581 (Iowa 2003)
• Payment for test. An employer required an applicant to pass a test before hiring. A diluted sample results in an inconclusive test. The employer said subsequent tests were at the applicant’s cost. The court found that a violation. The employer must pay for the test if it requires a valid passed test before employment. Tow v. Truck Country of Iowa, Inc., 695 N.W.2d 36 (Iowa 2005)
• Notice of policy. An employee who tested positive for marijuana claimed she did not receive the company’s written drug testing policy. The employer didn’t have a signed acknowledgement from the employee. The court found that there’s an issue to resolve at trial. McVey v. Nat’l Organization Service, Inc., 719 N.W.2d 801 (Iowa 2006)
• Missing test cost. The notice did not include the cost of a retest if the employee requested one. Because the employee can choose the facility for retesting, the employer didn’t know how to estimate the cost. But the statute says the cost should approximate what the employer had to pay. The courts found leaving out the estimate was a violation. Woods v. Charles Gabus Ford, Inc., 962 N.W.2d 1 (Iowa 2021)

 

5 Solutions to Common and Avoidable Drug Testing Problems

Paying attention to these five elements can help employers reduce the risk of litigation.

 

1. Get a written receipt that employees receive the drug testing policy or the employee handbook with the policy.
2. Send the lab two specimens of the split sample for possible retesting.
3. Make sure the medical review officer speaks with the employee. This can meet the requirement to allow the employee to provide information about a medical condition or legitimate medications that might explain a positive test result.
4. Identify the cost of the retest in the written notice. The employer cost for the original test is a reasonable estimate.
5. Provide required annual supervisor training.

 

When courts describe the drug testing rules as byzantine, it is obvious employers face hurdles. A knowledgeable labor and employment attorney can help employers navigate the onerous requirements. Contact your Nyemaster attorney for advice about your drug testing policy and specific situations.