SENATE FILE 212

BY  WARD, SORENSON, JOHNSON, CHELGREN, GREINER, BACON, BOETTGER, ZAUN, KETTERING, ANDERSON, BERTRAND, ERNST, HAHN, FEENSTRA, KAPUCIAN, and SMITH

A BILL FOR

An Act concerning private sector employee drug testing.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

   Section 1.  Section 730.5, subsection 1, paragraphs b and k, Code 2011, are amended to read as follows:
   b.  “Confirmed positive test result” means, except for alcohol testing conducted pursuant to subsection 7, paragraph “f”, subparagraph (2), the results of a blood, urine, or oral fluid drug test in which the level of controlled substances or metabolites in the specimen sample analyzed meets or exceeds nationally accepted standards for determining detectable levels of controlled substances as adopted by the federal United States department of health and human services’ substance abuse and mental health services administration. If nationally accepted standards fororal fluid tests on a particular specimen have not been adopted by the federal United States department of health and human services’ substance abuse and mental health services administration, the standards for determining detectable levels of controlled substances for purposes of determining a confirmed positive test result shall be the same standard that has been established cleared or approved by the federal United States department of health and human services’ food and drug administration for the measuring instrument used to perform the oral fluid test particular specimen testing utilized.
   k.  “Sample” means such sample from the human body capable of revealing the presence of alcohol or other drugs, or their metabolites, which shall include only urine, saliva, breath, and blood. However,“sample” does not mean blood except as authorized pursuant to subsection 7, paragraph “l”.
   Sec. 2.  Section 730.5, subsection 7, paragraphs a and b, Code 2011, are amended to read as follows:
   a.  The collection of samples shall be performed under sanitary conditions and with regard for the privacy of the individual from whom the specimen sample is being obtained and in a manner reasonably calculated to preclude contamination or substitution of the specimen sample. If the sample collected is urine, procedures shall be established to provide for individual privacy in the collection of the sample unless there is a reasonable suspicion that a particular individual subject to testing may alter or substitute the urine specimen sample to be provided, or has previously altered or substituted a urine specimen sample provided pursuant to a drug or alcohol test. For purposes of this paragraph,“individual privacy”means a location at the collection site where urination can occur in private, which has been secured by visual inspection to ensure that other persons are not present, which provides that undetected access to the location is not possible during urination, and which provides for the ability to effectively restrict access to the location during the time the specimen sample is provided. If an individual is providing a urine sample and collection of the urine sample is directly monitored or observed by another individual, the individual who is directly monitoring or observing the collection shall be of the same gender as the individual from whom the urine sample is being collected.
   b.  Collection of aurine sample for testing of current employees shall be performed so that the specimen sample is split into two components at the time of collection in the presence of the individual from whom the sample or specimen is collected. The second portion of thespecimen or sample shall be of sufficient quantity to permit a second, independent confirmatory test as provided in paragraph “i”. The If the sample is urine, the sample shall be split such that the primary sample contains at least thirty milliliters and the secondary sample contains at least fifteen milliliters. Both portions of the sample shall be forwarded to the laboratory conducting the initial confirmatory testing. In addition to any requirements for storage of the initial sample that may be imposed upon the laboratory as a condition for certification or approval, the laboratory shall store the second portion of any sample until receipt of a confirmed negative test result or for a period of at least forty-five calendar days following the completion of the initial confirmatory testing, if the first portion yielded a confirmed positive test result.
   Sec. 3.  Section 730.5, subsection 7, paragraph f, subparagraphs (2) and (3), Code 2011, are amended to read as follows:
   (2)  Notwithstanding any provision of this section to the contrary, alcohol testing, including initial and confirmatory testing, may be conducted pursuant to requirements established by the employer’s written policy. The written policy shall include requirements governing evidential breath testing devices, alcohol screening devices, and the qualifications for personnel administering initial and confirmatory testing, which shall be consistent with regulations adopted as of January 1, 1999 the effective date of this Act, by the United States department of transportation governing alcohol testing required to be conducted pursuant to the federal Omnibus Transportation Employee Testing Act of 1991.
   (3)  Notwithstanding any provision of this section to the contrary, collection of an oral fluid sample for testing shall be performed in the presence of the individual from whom the sampleor specimen is collected. Thespecimen or sample shall be of sufficient quantity to permit a second, independent, confirmatory test as provided in paragraph “i”. In addition to any requirement for storage of the initial sample that may be imposed upon the laboratory as a condition for certification or approval, the laboratory shall store the unused portion of any sample until receipt of a confirmed negative test result or for a period of at least forty-five calendar days following the completion of the initial confirmatory testing, if the portion yielded a confirmed positive test result.
   Sec. 4.  Section 730.5, subsection 7, paragraph i, subparagraph (2), Code 2011, is amended to read as follows:
   (2)  If a confirmed positive test result for drugs or alcohol or a test result for drugs or alcohol that is inconclusive or indicates that the sample has been diluted or altered for a prospective employee is reported to the employer by the medical review officer, the employer shall notify the prospective employee in writing of the results of the test, of the name and address of the medical review officer who made the report, and of the prospective employee’s right to request records under subsection 13.  The employer may allow a prospective employee to obtain a confirmatory test at an approved laboratory of the prospective employee’s choice with costs payable by the prospective employee.
   Sec. 5.  Section 730.5, subsection 10, paragraph a, unnumbered paragraph 1, Code 2011, is amended to read as follows:
   Upon receipt of a confirmed positive test result for drugs or alcohol which indicates a violation of the employer’s written policy, upon receipt of a test result of a prospective employee that is inconclusive or indicates that the sample has been diluted or altered, or upon the refusal of an employee or prospective employee to provide a testing sample, an employer may use that test result or test refusal as a valid basis for disciplinary or rehabilitative actions pursuant to the requirements of the employer’s written policy and the requirements of this section, which may include, among other actions, the following:
EXPLANATION
   This bill provides that private sector drug testing may be conducted on any of those specimens that have been adopted by the United States department of health and human services or have been cleared or approved by the United States food and drug administration for drug testing. Under current Iowa law, drug testing is permitted only on samples of urine, saliva, breath, and blood, and not on hair. 
   The bill provides that if the result of a test for drugs or alcohol on a prospective employee is inconclusive or indicates that the sample is altered or diluted, an employer may take disciplinary or rehabilitative action against the prospective employee in the same manner as if the result of the test was positive for drugs or alcohol. The bill also provides that the employer shall notify the prospective employee that the result of the test is inconclusive or that the sample is altered or diluted. If the result of the test is positive or inconclusive or indicative of an altered or diluted sample, the bill provides that the employer may allow the prospective employee to obtain a confirmatory test at the employee’s cost.