Text: H08118 Text: H08120 Text: H08100 - H08199 Text: H Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Amend House File 299, as amended, passed, and 1 2 reprinted by the House, as follows: 1 3 #1. By striking everything after the enacting 1 4 clause and inserting the following: 1 5 "Section 1. Section 730.5, Code 1997, is amended 1 6 by striking the section and inserting in lieu thereof 1 7 the following: 1 8 730.5 PRIVATE SECTOR DRUG-FREE WORKPLACES. 1 9 1. DEFINITIONS. As used in this section, unless 1 10 the context otherwise requires: 1 11 a. "Alcohol" means ethanol, isopropanol, or 1 12 methanol. 1 13 b. "Drug" means a substance considered a 1 14 controlled substance and included in schedule I, II, 1 15 III, IV, or V under the federal Controlled Substances 1 16 Act, 21 U.S.C. } 801 et seq. 1 17 c. "Employee" means a person in the service of an 1 18 employer in this state and includes the employer, and 1 19 any chief executive officer, president, vice 1 20 president, supervisor, manager, and officer of the 1 21 employer who is actively involved in the day-to-day 1 22 operations of the business. 1 23 d. "Employer" means a person, firm, company, 1 24 corporation, labor organization, or employment agency, 1 25 which has one or more full-time employees employed in 1 26 the same business, or in or about the same 1 27 establishment, under any contract of hire, express or 1 28 implied, oral or written, in this state. "Employer" 1 29 does not include the state, a political subdivision of 1 30 the state, including a city, county, or school 1 31 district, the United States, the United States postal 1 32 service, or a Native-American tribe. 1 33 e. "Good faith" means reasonable reliance on 1 34 facts, or that which is held out to be factual, 1 35 without the intent to be deceived, and without 1 36 reckless, malicious, or negligent disregard for the 1 37 truth. 1 38 f. "Medical review officer" means a licensed 1 39 physician, osteopathic physician, chiropractor, nurse 1 40 practitioner, or physician assistant authorized to 1 41 practice in any state of the United States, who is 1 42 responsible for receiving laboratory results generated 1 43 by an employer's drug or alcohol testing program, and 1 44 who has knowledge of substance abuse disorders and has 1 45 appropriate medical training to interpret and evaluate 1 46 an individual's confirmed positive test result 1 47 together with the individual's medical history and any 1 48 other relevant biomedical information. 1 49 g. "Prospective employee" means a person who has 1 50 made application, whether written or oral, to an 2 1 employer to become an employee. 2 2 h. "Reasonable suspicion drug or alcohol testing" 2 3 means drug or alcohol testing based upon evidence that 2 4 an employee is using or has used alcohol or other 2 5 drugs in violation of the employer's written policy 2 6 drawn from specific objective and articulable facts 2 7 and reasonable inferences drawn from those facts in 2 8 light of experience. For purposes of this paragraph, 2 9 facts and inferences may be based upon, but not 2 10 limited to, any of the following: 2 11 (1) Observable phenomena while at work such as 2 12 direct observation of alcohol or drug use or abuse or 2 13 of the physical symptoms or manifestations of being 2 14 impaired due to alcohol or other drug use. 2 15 (2) Abnormal conduct or erratic behavior while at 2 16 work or a significant deterioration in work 2 17 performance. 2 18 (3) A report of alcohol or other drug use provided 2 19 by a reliable and credible source. 2 20 (4) Evidence that an individual has tampered with 2 21 any drug or alcohol test during the individual's 2 22 employment with the current employer. 2 23 (5) Evidence that an employee has caused an 2 24 accident while at work which resulted in an injury to 2 25 a person for which injury, if suffered by an employee, 2 26 a record or report could be required under chapter 88, 2 27 or resulted in damage to property, including to 2 28 equipment, in an amount reasonably estimated at the 2 29 time of the accident to exceed one thousand dollars. 2 30 (6) Evidence that an employee has manufactured, 2 31 sold, distributed, solicited, possessed, used, or 2 32 transferred drugs while working or while on the 2 33 employer's premises or while operating the employer's 2 34 vehicle, machinery, or equipment. 2 35 i. "Safety-sensitive position" means a job wherein 2 36 an accident could cause loss of human life, serious 2 37 bodily injury, or significant property or 2 38 environmental damage, including a job with duties that 2 39 include immediate supervision of a person in a job 2 40 that meets the requirement of this paragraph. 2 41 j. "Sample" means such sample from the human body 2 42 capable of revealing the presence of alcohol or other 2 43 drugs, or their metabolites. However, sample does not 2 44 mean blood except as authorized pursuant to subsection 2 45 7, paragraph "l". 2 46 k. "Unannounced drug or alcohol testing" means 2 47 testing for the purposes of detecting drugs or alcohol 2 48 which is conducted on a periodic basis, without 2 49 advance notice of the test to employees, other than 2 50 employees whose duties include responsibility for 3 1 administration of the employer's drug or alcohol 3 2 testing program, subject to testing prior to the day 3 3 of testing, and without individualized suspicion. The 3 4 selection of employees to be tested from the pool of 3 5 employees subject to testing shall be done based on a 3 6 neutral and objective selection process by an entity 3 7 independent from the employer and shall be made by a 3 8 computer-based random number generator that is matched 3 9 with employees' social security numbers, payroll 3 10 identification numbers, or other comparable 3 11 identifying numbers in which each member of the 3 12 employee population subject to testing has an equal 3 13 chance of selection for initial testing, regardless of 3 14 whether the employee has been selected or tested 3 15 previously. The random selection process shall be 3 16 conducted through a computer program that records each 3 17 selection attempt by date, time, and employee number. 3 18 2. APPLICABILITY. This section does not apply to 3 19 drug or alcohol tests conducted on employees required 3 20 to be tested pursuant to federal statutes, federal 3 21 regulations, or orders issued pursuant to federal law. 3 22 In addition, an employer, through its written policy, 3 23 may exclude from the pools of employees subject to 3 24 unannounced drug or alcohol testing pursuant to 3 25 subsection 8, paragraph "a", employee populations 3 26 required to be tested as described in this subsection. 3 27 3. TESTING OPTIONAL. This section does not 3 28 require or create a legal duty on an employer to 3 29 conduct drug or alcohol testing and the requirements 3 30 of this section shall not be construed to encourage, 3 31 discourage, restrict, limit, prohibit, or require such 3 32 testing. In addition, an employer may implement and 3 33 require drug or alcohol testing at some but not all of 3 34 the work sites of the employer and the requirements of 3 35 this section shall only apply to the employer and 3 36 employees who are at the work sites where drug or 3 37 alcohol testing pursuant to this section has been 3 38 implemented. A cause of action shall not arise in 3 39 favor of any person against an employer or agent of an 3 40 employer based on the failure of the employer to 3 41 establish a program or policy on substance abuse 3 42 prevention or to implement any component of testing as 3 43 permitted by this section. 3 44 4. TESTING AS CONDITION OF EMPLOYMENT 3 45 REQUIREMENTS. To the extent provided in subsection 8, 3 46 an employer may test employees and prospective 3 47 employees for the presence of drugs or alcohol as a 3 48 condition of continued employment or hiring. An 3 49 employer shall adhere to the requirements of this 3 50 section concerning the conduct of such testing and the 4 1 use and disposition of the results of such testing. 4 2 5. COLLECTION OF SAMPLES. In conducting drug or 4 3 alcohol testing, an employer may require the 4 4 collection of samples from its employees and 4 5 prospective employees, and may require presentation of 4 6 reliable individual identification from the person 4 7 being tested to the person collecting the samples. 4 8 Collection of a sample shall be in conformance with 4 9 the requirements of this section. The employer may 4 10 designate the type of sample to be used for this 4 11 testing. 4 12 6. SCHEDULING OF TESTS. 4 13 a. Drug or alcohol testing of employees conducted 4 14 by an employer shall normally occur during, or 4 15 immediately before or after, a regular work period. 4 16 The time required for such testing by an employer 4 17 shall be deemed work time for the purposes of 4 18 compensation and benefits for employees. 4 19 b. An employer shall pay all actual costs for drug 4 20 or alcohol testing of employees and prospective 4 21 employees required by the employer. 4 22 c. An employer shall provide transportation or pay 4 23 reasonable transportation costs to employees if drug 4 24 or alcohol sample collection is conducted at a 4 25 location other than the employee's normal work site. 4 26 7. TESTING PROCEDURES. All sample collection and 4 27 testing for drugs or alcohol under this section shall 4 28 be performed in accordance with the following 4 29 conditions: 4 30 a. The collection of samples shall be performed 4 31 under sanitary conditions and with regard for the 4 32 privacy of the individual from whom the specimen is 4 33 being obtained and in a manner reasonably calculated 4 34 to preclude contamination or substitution of the 4 35 specimen. 4 36 b. Sample collection for testing of current 4 37 employees shall be performed so that the specimen is 4 38 split into two components at the time of collection in 4 39 the presence of the individual from whom the sample or 4 40 specimen is collected. The second portion of the 4 41 specimen or sample shall be of sufficient quantity to 4 42 permit a second, independent confirmatory test as 4 43 provided in paragraph "i". If the specimen is urine, 4 44 the sample shall be split such that the primary sample 4 45 contains at least thirty milliliters and the secondary 4 46 sample contains at least fifteen milliliters. Both 4 47 portions of the sample shall be forwarded to the 4 48 laboratory conducting the initial confirmatory 4 49 testing. In addition to any requirements for storage 4 50 of the initial sample that may be imposed upon the 5 1 laboratory as a condition for certification or 5 2 approval, the laboratory shall store the second 5 3 portion of any sample until receipt of a confirmed 5 4 negative test result or for a period of at least 5 5 forty-five calendar days following the completion of 5 6 the initial confirmatory testing, if the first portion 5 7 yielded a confirmed positive test result. 5 8 c. Sample collections shall be documented, and the 5 9 procedure for documentation shall include the 5 10 following: 5 11 (1) Samples shall be labeled so as to reasonably 5 12 preclude the possibility of misidentification of the 5 13 person tested in relation to the test result provided, 5 14 and samples shall be handled and tracked in a manner 5 15 such that control and accountability are maintained 5 16 from initial collection to each stage in handling, 5 17 testing, and storage, through final disposition. 5 18 (2) An employee or prospective employee shall be 5 19 provided an opportunity to provide any information 5 20 which may be considered relevant to the test, 5 21 including identification of prescription or 5 22 nonprescription drugs currently or recently used, or 5 23 other relevant medical information. To assist an 5 24 employee or prospective employee in providing the 5 25 information described in this subparagraph, the 5 26 employer shall provide an employee or prospective 5 27 employee with a list of the drugs to be tested. 5 28 d. Sample collection, storage, and transportation 5 29 to the place of testing shall be performed so as to 5 30 reasonably preclude the possibility of sample 5 31 contamination, adulteration, or misidentification. 5 32 e. All confirmatory drug testing shall be 5 33 conducted at a laboratory certified by the United 5 34 States department of health and human services' 5 35 substance abuse and mental health services 5 36 administration or approved under rules adopted by the 5 37 Iowa department of public health. 5 38 f. Drug or alcohol testing shall include 5 39 confirmation of any initial positive test results. 5 40 For drug or alcohol testing, confirmation shall be by 5 41 use of a different chemical process than was used in 5 42 the initial screen for drugs or alcohol. The 5 43 confirmatory drug or alcohol test shall be a 5 44 chromatographic technique such as gas chromatography 5 45 or mass spectrometry, or another comparably reliable 5 46 analytical method. An employer may take adverse 5 47 employment action, including refusal to hire a 5 48 prospective employee, based on a confirmed positive 5 49 drug or alcohol test. 5 50 g. A medical review officer shall, prior to the 6 1 results being reported to an employer, review and 6 2 interpret any confirmed positive test results, 6 3 including both quantitative and qualitative test 6 4 results, to ensure that the chain of custody is 6 5 complete and sufficient on its face and that any 6 6 information provided by the individual pursuant to 6 7 paragraph "c", subparagraph (2), is considered. 6 8 h. In conducting drug or alcohol testing pursuant 6 9 to this section, the laboratory, the medical review 6 10 officer, and the employer shall ensure, to the extent 6 11 feasible, that the testing only measure, and the 6 12 records concerning the testing only show or make use 6 13 of information regarding, alcohol or drugs in the 6 14 body. 6 15 i. (1) If a confirmed positive drug or alcohol 6 16 test for a current employee is reported to the 6 17 employer by the medical review officer, the employer 6 18 shall notify the employee in writing by certified 6 19 mail, return receipt requested, of the results of the 6 20 test, the employee's right to request and obtain a 6 21 confirmatory test of the second sample collected 6 22 pursuant to paragraph "b" at an approved laboratory of 6 23 the employee's choice, and the fee payable by the 6 24 employee to the employer for reimbursement of expenses 6 25 concerning the test. The fee charged an employee 6 26 shall be an amount that represents the costs 6 27 associated with conducting the second confirmatory 6 28 test, which shall be consistent with the employer's 6 29 cost for conducting the initial confirmatory test on 6 30 an employee's sample. If the employee, in person or 6 31 by certified mail, return receipt requested, requests 6 32 a second confirmatory test, identifies an approved 6 33 laboratory to conduct the test, and pays the employer 6 34 the fee for the test within seven days from the date 6 35 the employer mails by certified mail, return receipt 6 36 requested, the written notice to the employee of the 6 37 employee's right to request a test, a second 6 38 confirmatory test shall be conducted at the laboratory 6 39 chosen by the employee. The results of the second 6 40 confirmatory test shall be reported to the medical 6 41 review officer who reviewed the initial confirmatory 6 42 test results and the medical review officer shall 6 43 review the results and issue a report to the employer 6 44 on whether the results of the second confirmatory test 6 45 confirmed the initial confirmatory test as to the 6 46 presence of a specific drug or alcohol. If the 6 47 results of the second test do not confirm the results 6 48 of the initial confirmatory test, the employer shall 6 49 reimburse the employee for the fee paid by the 6 50 employee for the second test and the initial 7 1 confirmatory test shall not be considered a confirmed 7 2 positive drug or alcohol test for purposes of taking 7 3 disciplinary action pursuant to subsection 10. 7 4 (2) If a confirmed positive drug or alcohol test 7 5 for a prospective employee is reported to the employer 7 6 by the medical review officer, the employer shall 7 7 notify the prospective employee in writing of the 7 8 results of the test, of the name and address of the 7 9 medical review officer who made the report, and of the 7 10 prospective employee's right to request records under 7 11 subsection 13. 7 12 j. A laboratory conducting testing under this 7 13 section shall dispose of all samples for which a 7 14 negative test result was reported to an employer 7 15 within five working days after issuance of the 7 16 negative test result report. 7 17 k. Except as necessary to conduct drug or alcohol 7 18 testing pursuant to this section and to submit the 7 19 report required by subsection 16, a laboratory or 7 20 other medical facility shall only report to an 7 21 employer or outside entity information relating to the 7 22 results of a drug or alcohol test conducted pursuant 7 23 to this section concerning the determination of 7 24 whether the tested individual has engaged in conduct 7 25 prohibited by the employer's written policy with 7 26 regard to alcohol or drug use. 7 27 l. Notwithstanding the provisions of this 7 28 subsection, an employer may rely and take action upon 7 29 the results of any blood test for drugs or alcohol 7 30 made on any employee involved in an accident at work 7 31 if the test is administered by or at the direction of 7 32 the person providing treatment or care to the employee 7 33 without request or suggestion by the employer that a 7 34 test be conducted, and the employer has lawfully 7 35 obtained the results of the test. For purposes of 7 36 this paragraph, an employer shall not be deemed to 7 37 have requested or required a test in conjunction with 7 38 the provision of medical treatment following a 7 39 workplace accident by providing information concerning 7 40 the circumstance of the accident. 7 41 8. DRUG OR ALCOHOL TESTING. Employers may conduct 7 42 drug or alcohol testing as provided in this 7 43 subsection: 7 44 a. Employers may conduct unannounced drug or 7 45 alcohol testing of employees who are selected from any 7 46 of the following pools of employees: 7 47 (1) The entire employee population at a particular 7 48 work site of the employer except for employees who are 7 49 not scheduled to be at work at the time the testing is 7 50 conducted because of the status of the employees or 8 1 who have been excused from work pursuant to the 8 2 employer's work policy prior to the time the testing 8 3 is announced to employees. 8 4 (2) The entire full-time active employee 8 5 population at a particular work site except for 8 6 employees who are not scheduled to be at work at the 8 7 time the testing is to be conducted because of the 8 8 status of the employee, or who have been excused from 8 9 work pursuant to the employer's working policy. 8 10 (3) All employees at a particular work site who 8 11 are in a pool of employees in a safety-sensitive 8 12 position and who are scheduled to be at work at the 8 13 time testing is conducted, other than employees who 8 14 are not scheduled to be at work at the time the 8 15 testing is to be conducted or who have been excused 8 16 from work pursuant to the employer's work policy prior 8 17 to the time the testing is announced to employees. 8 18 b. Employers may conduct drug or alcohol testing 8 19 of employees during, and after completion of, drug or 8 20 alcohol rehabilitation. 8 21 c. Employers may conduct reasonable suspicion drug 8 22 or alcohol testing. 8 23 d. Employers may conduct drug or alcohol testing 8 24 of prospective employees. 8 25 e. Employers may conduct drug or alcohol testing 8 26 as required by federal law or regulation or by law 8 27 enforcement. 8 28 f. Employers may conduct drug or alcohol testing 8 29 in investigating accidents in the workplace in which 8 30 the accident resulted in an injury to a person for 8 31 which injury, if suffered by an employee, a record or 8 32 report could be required under chapter 88, or resulted 8 33 in damage to property, including to equipment, in an 8 34 amount reasonably estimated at the time of the 8 35 accident to exceed one thousand dollars. 8 36 9. WRITTEN POLICY AND OTHER TESTING REQUIREMENTS. 8 37 a. Drug or alcohol testing or retesting by an 8 38 employer shall be carried out within the terms of a 8 39 written policy which has been provided to every 8 40 employee subject to testing, and is available for 8 41 review by employees and prospective employees. 8 42 b. The employer's written policy shall provide 8 43 uniform requirements for what disciplinary or 8 44 rehabilitative actions an employer shall take against 8 45 an employee or prospective employee upon receipt of a 8 46 confirmed positive drug or alcohol test result or upon 8 47 the refusal of the employee or prospective employee to 8 48 provide a testing sample. The policy shall provide 8 49 that any action taken against an employee or 8 50 prospective employee shall be based only on the 9 1 results of the drug or alcohol test. The written 9 2 policy shall also provide that if rehabilitation is 9 3 required pursuant to paragraph "g", the employer shall 9 4 not take adverse employment action against the 9 5 employee so long as the employee complies with the 9 6 requirements of rehabilitation and successfully 9 7 completes rehabilitation. 9 8 c. Employers shall establish an awareness program 9 9 to inform employees of the dangers of drug and alcohol 9 10 use in the workplace and comply with the following 9 11 requirements in order to conduct drug or alcohol 9 12 testing under this section: 9 13 (1) If an employer has an employee assistance 9 14 program, the employer must inform the employee of the 9 15 benefits and services of the employee assistance 9 16 program. An employer shall post notice of the 9 17 employee assistance program in conspicuous places and 9 18 explore alternative routine and reinforcing means of 9 19 publicizing such services. In addition, the employer 9 20 must provide the employee with notice of the policies 9 21 and procedures regarding access to and utilization of 9 22 the program. 9 23 (2) If an employer does not have an employee 9 24 assistance program, the employer must maintain a 9 25 resource file of employee assistance services 9 26 providers, alcohol and other drug abuse programs 9 27 certified by the Iowa department of public health, 9 28 mental health providers, and other persons, entities, 9 29 or organizations available to assist employees with 9 30 personal or behavioral problems. The employer shall 9 31 provide all employees information about the existence 9 32 of the resource file and a summary of the information 9 33 contained within the resource file. The summary 9 34 should contain, but need not be limited to, all 9 35 information necessary to access the services listed in 9 36 the resource file. In addition, the employer shall 9 37 post in conspicuous places a listing of multiple 9 38 employee assistance providers in the area. 9 39 d. An employee or prospective employee whose drug 9 40 or alcohol test results are confirmed as positive in 9 41 accordance with this section shall not, by virtue of 9 42 those results alone, be considered as a person with a 9 43 disability for purposes of any state or local law or 9 44 regulation. 9 45 e. If the written policy provides for alcohol 9 46 testing, the employer shall establish in the written 9 47 policy a standard for alcohol concentration which 9 48 shall be deemed to violate the policy. The standard 9 49 for alcohol concentration shall not be less than .04, 9 50 expressed in terms of grams of alcohol per two hundred 10 1 ten liters of breath, or its equivalent. 10 2 f. An employee of an employer who is designated by 10 3 the employer as being in a safety-sensitive position 10 4 shall be placed in only one pool of safety-sensitive 10 5 employees subject to drug or alcohol testing pursuant 10 6 to subsection 8, paragraph "a", subparagraph (3). An 10 7 employer may have more than one pool of safety- 10 8 sensitive employees subject to drug or alcohol testing 10 9 pursuant to subsection 8, paragraph "a", subparagraph 10 10 (3), but shall not include an employee in more than 10 11 one safety-sensitive pool. 10 12 g. Upon receipt of a confirmed positive alcohol 10 13 test which indicates an alcohol concentration greater 10 14 than the concentration level established by the 10 15 employer pursuant to this section but less than the 10 16 concentration level in section 321J.2 for operating 10 17 while under the influence of alcohol, and if the 10 18 employer has at least fifty employees, and if the 10 19 employee has been employed by the employer for at 10 20 least twelve of the preceding eighteen months, and if 10 21 rehabilitation is agreed upon by the employee, and if 10 22 the employee has not previously violated the 10 23 employer's substance abuse prevention policy pursuant 10 24 to this section, the written policy shall provide for 10 25 the rehabilitation of the employee pursuant to 10 26 subsection 10, paragraph "a", subparagraph (1), and 10 27 the apportionment of the costs of rehabilitation as 10 28 provided by this paragraph. 10 29 (1) If the employer has an employee benefit plan, 10 30 the costs of rehabilitation shall be apportioned as 10 31 provided under the employee benefit plan. 10 32 (2) If no employee benefit plan exists and the 10 33 employee has coverage for any portion of the costs of 10 34 rehabilitation under any health care plan of the 10 35 employee, the costs of rehabilitation shall be 10 36 apportioned as provided by the health care plan with 10 37 any costs not covered by the plan apportioned equally 10 38 between the employee and the employer. However, the 10 39 employer shall not be required to pay more than two 10 40 thousand dollars toward the costs not covered by the 10 41 employee's health care plan. 10 42 (3) If no employee benefit plan exists and the 10 43 employee does not have coverage for any portion of the 10 44 costs of rehabilitation under any health care plan of 10 45 the employee, the costs of rehabilitation shall be 10 46 apportioned equally between the employee and the 10 47 employer. However, the employer shall not be required 10 48 to pay more than two thousand dollars towards the cost 10 49 of rehabilitation under this subparagraph. 10 50 Rehabilitation required pursuant to this paragraph 11 1 shall not preclude an employer from taking any adverse 11 2 employment action against the employee during the 11 3 rehabilitation based on the employee's failure to 11 4 comply with any requirements of the rehabilitation, 11 5 including any action by the employee to invalidate a 11 6 test sample provided by the employee pursuant to the 11 7 rehabilitation. 11 8 h. In order to conduct drug or alcohol testing 11 9 under this section, an employer shall require 11 10 supervisory personnel of the employer involved with 11 11 drug or alcohol testing under this section to attend a 11 12 minimum of two hours of initial training and to 11 13 attend, on an annual basis thereafter, a minimum of 11 14 one hour of subsequent training. The training shall 11 15 include, but is not limited to, information concerning 11 16 the recognition of evidence of employee alcohol and 11 17 other drug abuse, the documentation and corroboration 11 18 of employee alcohol and other drug abuse, and the 11 19 referral of employees who abuse alcohol or other drugs 11 20 to the employee assistance program or to the resource 11 21 file of employee assistance services providers. 11 22 10. DISCIPLINARY PROCEDURES. 11 23 a. Upon receipt of a confirmed positive drug or 11 24 alcohol test result which indicates a violation of the 11 25 employer's written policy, or upon the refusal of an 11 26 employee or prospective employee to provide a testing 11 27 sample, an employer may use that test result or test 11 28 refusal as a valid basis for disciplinary or 11 29 rehabilitative actions pursuant to the requirements of 11 30 the employer's written policy and the requirements of 11 31 this section, which may include, among other actions, 11 32 the following: 11 33 (1) A requirement that the employee enroll in an 11 34 employer-provided or approved rehabilitation, 11 35 treatment, or counseling program, which may include 11 36 additional drug or alcohol testing, participation in 11 37 and successful completion of which may be a condition 11 38 of continued employment, and the costs of which may or 11 39 may not be covered by the employer's health plan or 11 40 policies. 11 41 (2) Suspension of the employee, with or without 11 42 pay, for a designated period of time. 11 43 (3) Termination of employment. 11 44 (4) Refusal to hire a prospective employee. 11 45 (5) Other adverse employment action in conformance 11 46 with the employer's written policy and procedures, 11 47 including any relevant collective bargaining agreement 11 48 provisions. 11 49 b. Following a drug or alcohol test, but prior to 11 50 receipt of the final results of the drug or alcohol 12 1 test, an employer may suspend a current employee, with 12 2 or without pay, pending the outcome of the test. An 12 3 employee who has been suspended shall be reinstated by 12 4 the employer, with back pay, and interest on such 12 5 amount at eighteen percent per annum compounded 12 6 annually, if applicable, if the result of the test is 12 7 not a confirmed positive drug or alcohol test which 12 8 indicates a violation of the employer's written 12 9 policy. 12 10 11. EMPLOYER IMMUNITY. A cause of action shall 12 11 not arise against an employer who has established a 12 12 policy and initiated a testing program in accordance 12 13 with the testing and policy safeguards provided for 12 14 under this section, for any of the following: 12 15 a. Testing or taking action based on the results 12 16 of a positive drug or alcohol test result, indicating 12 17 the presence of drugs or alcohol, in good faith, or on 12 18 the refusal of an employee or prospective employee to 12 19 submit to a drug or alcohol test. 12 20 b. Failure to test for drugs or alcohol, or 12 21 failure to test for a specific drug or controlled 12 22 substance. 12 23 c. Failure to test for, or if tested for, failure 12 24 to detect, any specific drug or other controlled 12 25 substance. 12 26 d. Termination or suspension of any substance 12 27 abuse prevention or testing program or policy. 12 28 e. Any action taken related to a false negative 12 29 drug or alcohol test result. 12 30 12. EMPLOYER LIABILITY FALSE POSITIVE TEST 12 31 RESULTS. 12 32 a. Except as otherwise provided in paragraph "b", 12 33 a cause of action shall not arise against an employer 12 34 who has established a program of drug or alcohol 12 35 testing in accordance with this section, unless all of 12 36 the following conditions exist: 12 37 (1) The employer's action was based on a false 12 38 positive test result. 12 39 (2) The employer knew or clearly should have known 12 40 that the test result was in error and ignored the 12 41 correct test result because of reckless, malicious, or 12 42 negligent disregard for the truth, or the willful 12 43 intent to deceive or to be deceived. 12 44 b. A cause of action for defamation, libel, 12 45 slander, or damage to reputation shall not arise 12 46 against an employer establishing a program of drug or 12 47 alcohol testing in accordance with this section unless 12 48 all of the following apply: 12 49 (1) The employer discloses the test results to a 12 50 person other than the employer, an authorized 13 1 employee, agent, or representative of the employer, 13 2 the tested employee or the tested applicant for 13 3 employment, an authorized substance abuse treatment 13 4 program or employee assistance program, or an 13 5 authorized agent or representative of the tested 13 6 employee or applicant. 13 7 (2) The test results disclosed incorrectly 13 8 indicate the presence of alcohol or drugs. 13 9 (3) The employer negligently discloses the 13 10 results. 13 11 c. In any cause of action based upon a false 13 12 positive test result, all of the following conditions 13 13 apply: 13 14 (1) The results of a drug or alcohol test 13 15 conducted in compliance with this section are presumed 13 16 to be valid. 13 17 (2) An employer shall not be liable for monetary 13 18 damages if the employer's reliance on the false 13 19 positive test result was reasonable and in good faith. 13 20 13. CONFIDENTIALITY OF RESULTS EXCEPTION. 13 21 a. All communications received by an employer 13 22 relevant to employee or prospective employee drug or 13 23 alcohol test results, or otherwise received through 13 24 the employer's drug or alcohol testing program, are 13 25 confidential communications and shall not be used or 13 26 received in evidence, obtained in discovery, or 13 27 disclosed in any public or private proceeding, except 13 28 as otherwise provided or authorized by this section. 13 29 b. An employee, or a prospective employee, who is 13 30 the subject of a drug or alcohol test conducted under 13 31 this section pursuant to an employer's written policy 13 32 and for whom a confirmed positive test result is 13 33 reported shall, upon written request, have access to 13 34 any records relating to the employee's drug or alcohol 13 35 test, including records of the laboratory where the 13 36 testing was conducted and any records relating to the 13 37 results of any relevant certification or review by a 13 38 medical review officer. However, a prospective 13 39 employee shall be entitled to records under this 13 40 paragraph only if the prospective employee requests 13 41 the records within fifteen calendar days from the date 13 42 the employer provided the prospective employee written 13 43 notice of the results of a drug or alcohol test as 13 44 provided in subsection 7, paragraph "i", subparagraph 13 45 (2). 13 46 c. Except as provided by this section and as 13 47 necessary to conduct drug or alcohol testing under 13 48 this section and to file a report pursuant to 13 49 subsection 16, a laboratory and a medical review 13 50 officer conducting drug or alcohol testing under this 14 1 section shall not use or disclose to any person any 14 2 personally identifiable information regarding such 14 3 testing, including the names of individuals tested, 14 4 even if unaccompanied by the results of the test. 14 5 d. An employer may use and disclose information 14 6 concerning the results of a drug or alcohol test 14 7 conducted pursuant to this section under any of the 14 8 following circumstances: 14 9 (1) In an arbitration proceeding pursuant to a 14 10 collective bargaining agreement, or an administrative 14 11 agency proceeding or judicial proceeding under 14 12 workers' compensation laws or unemployment 14 13 compensation laws or under common or statutory laws 14 14 where action taken by the employer based on the test 14 15 is relevant or is challenged. 14 16 (2) To any federal agency or other unit of the 14 17 federal government as required under federal law, 14 18 regulation or order, or in accordance with compliance 14 19 requirements of a federal government contract. 14 20 (3) To any agency of this state authorized to 14 21 license individuals if the employee tested is licensed 14 22 by that agency and the rules of that agency require 14 23 such disclosure. 14 24 (4) To a union representing the employee if such 14 25 disclosure would be required by federal labor laws. 14 26 (5) To a substance abuse evaluation or treatment 14 27 facility or professional for the purpose of evaluation 14 28 or treatment of the employee. 14 29 However, positive test results from an employer 14 30 drug or alcohol testing program shall not be used as 14 31 evidence in any criminal action against the employee 14 32 or prospective employee tested. 14 33 14. CIVIL PENALTIES JURISDICTION. 14 34 a. Any laboratory or medical review officer which 14 35 discloses information in violation of the provisions 14 36 of subsection 7, paragraph "h" or "k", or any employer 14 37 who, through the selection process described in 14 38 subsection 1, paragraph "k", improperly targets or 14 39 exempts employees subject to unannounced drug or 14 40 alcohol testing, shall be subject to a civil penalty 14 41 of one thousand dollars for each violation. The 14 42 attorney general or the attorney general's designee 14 43 may maintain a civil action to enforce this 14 44 subsection. Any civil penalty recovered shall be 14 45 deposited in the general fund of the state. 14 46 b. A laboratory or medical review officer involved 14 47 in the conducting of a drug or alcohol test pursuant 14 48 to this section shall be deemed to have the necessary 14 49 contact with this state for the purpose of subjecting 14 50 the laboratory or medical review officer to the 15 1 jurisdiction of the courts of this state. 15 2 15. CIVIL REMEDIES. This section may be enforced 15 3 through a civil action. 15 4 a. A person who violates this section or who aids 15 5 in the violation of this section, is liable to an 15 6 aggrieved employee or prospective employee for 15 7 affirmative relief including reinstatement or hiring, 15 8 with or without back pay, or any other equitable 15 9 relief as the court deems appropriate including 15 10 attorney fees and court costs. 15 11 b. When a person commits, is committing, or 15 12 proposes to commit, an act in violation of this 15 13 section, an injunction may be granted through an 15 14 action in district court to prohibit the person from 15 15 continuing such acts. The action for injunctive 15 16 relief may be brought by an aggrieved employee or 15 17 prospective employee, the county attorney, or the 15 18 attorney general. 15 19 In an action brought under this subsection alleging 15 20 that an employer has required or requested a drug or 15 21 alcohol test in violation of this section, the 15 22 employer has the burden of proving that the 15 23 requirements of this section were met. 15 24 16. REPORTS. A laboratory doing business for an 15 25 employer who conducts drug or alcohol tests pursuant 15 26 to this section shall file an annual report with the 15 27 Iowa department of public health by March 1 of each 15 28 year concerning the number of drug or alcohol tests 15 29 conducted on employees who work in this state pursuant 15 30 to this section, the number of positive and negative 15 31 results of the tests, during the previous calendar 15 32 year. In addition, the laboratory shall include in 15 33 its annual report the specific basis for each test as 15 34 authorized in subsection 8, the type of drug or drugs 15 35 which were found in the positive drug tests, and all 15 36 significant available demographic factors relating to 15 37 the positive test pool. 15 38 Sec. 2. EFFECTIVE DATE. This Act takes effect on 15 39 the thirtieth day following enactment." 15 40 HF 299S 15 41 ec/cc/26
Text: H08118 Text: H08120 Text: H08100 - H08199 Text: H Index Bills and Amendments: General Index Bill History: General Index
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