Text: HF00298 Text: HF00300 Text: HF00200 - HF00299 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 HOUSE FILE 299
1 2
1 3 AN ACT
1 4 CONCERNING DRUG AND ALCOHOL TESTING OF PRIVATE SECTOR
1 5 EMPLOYEES AND PROSPECTIVE EMPLOYEES AND PROVIDING
1 6 REMEDIES AND AN EFFECTIVE DATE.
1 7
1 8 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 9
1 10 Section 1. Section 730.5, Code 1997, is amended by
1 11 striking the section and inserting in lieu thereof the
1 12 following:
1 13 730.5 PRIVATE SECTOR DRUG-FREE WORKPLACES.
1 14 1. DEFINITIONS. As used in this section, unless the
1 15 context otherwise requires:
1 16 a. "Alcohol" means ethanol, isopropanol, or methanol.
1 17 b. "Drug" means a substance considered a controlled
1 18 substance and included in schedule I, II, III, IV, or V under
1 19 the federal Controlled Substances Act, 21 U.S.C. } 801 et seq.
1 20 c. "Employee" means a person in the service of an employer
1 21 in this state and includes the employer, and any chief
1 22 executive officer, president, vice president, supervisor,
1 23 manager, and officer of the employer who is actively involved
1 24 in the day-to-day operations of the business.
1 25 d. "Employer" means a person, firm, company, corporation,
1 26 labor organization, or employment agency, which has one or
1 27 more full-time employees employed in the same business, or in
1 28 or about the same establishment, under any contract of hire,
1 29 express or implied, oral or written, in this state.
1 30 "Employer" does not include the state, a political subdivision
1 31 of the state, including a city, county, or school district,
1 32 the United States, the United States postal service, or a
1 33 Native-American tribe.
1 34 e. "Good faith" means reasonable reliance on facts, or
1 35 that which is held out to be factual, without the intent to be
2 1 deceived, and without reckless, malicious, or negligent
2 2 disregard for the truth.
2 3 f. "Medical review officer" means a licensed physician,
2 4 osteopathic physician, chiropractor, nurse practitioner, or
2 5 physician assistant authorized to practice in any state of the
2 6 United States, who is responsible for receiving laboratory
2 7 results generated by an employer's drug or alcohol testing
2 8 program, and who has knowledge of substance abuse disorders
2 9 and has appropriate medical training to interpret and evaluate
2 10 an individual's confirmed positive test result together with
2 11 the individual's medical history and any other relevant
2 12 biomedical information.
2 13 g. "Prospective employee" means a person who has made
2 14 application, whether written or oral, to an employer to become
2 15 an employee.
2 16 h. "Reasonable suspicion drug or alcohol testing" means
2 17 drug or alcohol testing based upon evidence that an employee
2 18 is using or has used alcohol or other drugs in violation of
2 19 the employer's written policy drawn from specific objective
2 20 and articulable facts and reasonable inferences drawn from
2 21 those facts in light of experience. For purposes of this
2 22 paragraph, facts and inferences may be based upon, but not
2 23 limited to, any of the following:
2 24 (1) Observable phenomena while at work such as direct
2 25 observation of alcohol or drug use or abuse or of the physical
2 26 symptoms or manifestations of being impaired due to alcohol or
2 27 other drug use.
2 28 (2) Abnormal conduct or erratic behavior while at work or
2 29 a significant deterioration in work performance.
2 30 (3) A report of alcohol or other drug use provided by a
2 31 reliable and credible source.
2 32 (4) Evidence that an individual has tampered with any drug
2 33 or alcohol test during the individual's employment with the
2 34 current employer.
2 35 (5) Evidence that an employee has caused an accident while
3 1 at work which resulted in an injury to a person for which
3 2 injury, if suffered by an employee, a record or report could
3 3 be required under chapter 88, or resulted in damage to
3 4 property, including to equipment, in an amount reasonably
3 5 estimated at the time of the accident to exceed one thousand
3 6 dollars.
3 7 (6) Evidence that an employee has manufactured, sold,
3 8 distributed, solicited, possessed, used, or transferred drugs
3 9 while working or while on the employer's premises or while
3 10 operating the employer's vehicle, machinery, or equipment.
3 11 i. "Safety-sensitive position" means a job wherein an
3 12 accident could cause loss of human life, serious bodily
3 13 injury, or significant property or environmental damage,
3 14 including a job with duties that include immediate supervision
3 15 of a person in a job that meets the requirement of this
3 16 paragraph.
3 17 j. "Sample" means such sample from the human body capable
3 18 of revealing the presence of alcohol or other drugs, or their
3 19 metabolites. However, sample does not mean blood except as
3 20 authorized pursuant to subsection 7, paragraph "l".
3 21 k. "Unannounced drug or alcohol testing" means testing for
3 22 the purposes of detecting drugs or alcohol which is conducted
3 23 on a periodic basis, without advance notice of the test to
3 24 employees, other than employees whose duties include
3 25 responsibility for administration of the employer's drug or
3 26 alcohol testing program, subject to testing prior to the day
3 27 of testing, and without individualized suspicion. The
3 28 selection of employees to be tested from the pool of employees
3 29 subject to testing shall be done based on a neutral and
3 30 objective selection process by an entity independent from the
3 31 employer and shall be made by a computer-based random number
3 32 generator that is matched with employees' social security
3 33 numbers, payroll identification numbers, or other comparable
3 34 identifying numbers in which each member of the employee
3 35 population subject to testing has an equal chance of selection
4 1 for initial testing, regardless of whether the employee has
4 2 been selected or tested previously. The random selection
4 3 process shall be conducted through a computer program that
4 4 records each selection attempt by date, time, and employee
4 5 number.
4 6 2. APPLICABILITY. This section does not apply to drug or
4 7 alcohol tests conducted on employees required to be tested
4 8 pursuant to federal statutes, federal regulations, or orders
4 9 issued pursuant to federal law. In addition, an employer,
4 10 through its written policy, may exclude from the pools of
4 11 employees subject to unannounced drug or alcohol testing
4 12 pursuant to subsection 8, paragraph "a", employee populations
4 13 required to be tested as described in this subsection.
4 14 3. TESTING OPTIONAL. This section does not require or
4 15 create a legal duty on an employer to conduct drug or alcohol
4 16 testing and the requirements of this section shall not be
4 17 construed to encourage, discourage, restrict, limit, prohibit,
4 18 or require such testing. In addition, an employer may
4 19 implement and require drug or alcohol testing at some but not
4 20 all of the work sites of the employer and the requirements of
4 21 this section shall only apply to the employer and employees
4 22 who are at the work sites where drug or alcohol testing
4 23 pursuant to this section has been implemented. A cause of
4 24 action shall not arise in favor of any person against an
4 25 employer or agent of an employer based on the failure of the
4 26 employer to establish a program or policy on substance abuse
4 27 prevention or to implement any component of testing as
4 28 permitted by this section.
4 29 4. TESTING AS CONDITION OF EMPLOYMENT – REQUIREMENTS. To
4 30 the extent provided in subsection 8, an employer may test
4 31 employees and prospective employees for the presence of drugs
4 32 or alcohol as a condition of continued employment or hiring.
4 33 An employer shall adhere to the requirements of this section
4 34 concerning the conduct of such testing and the use and
4 35 disposition of the results of such testing.
5 1 5. COLLECTION OF SAMPLES. In conducting drug or alcohol
5 2 testing, an employer may require the collection of samples
5 3 from its employees and prospective employees, and may require
5 4 presentation of reliable individual identification from the
5 5 person being tested to the person collecting the samples.
5 6 Collection of a sample shall be in conformance with the
5 7 requirements of this section. The employer may designate the
5 8 type of sample to be used for this testing.
5 9 6. SCHEDULING OF TESTS.
5 10 a. Drug or alcohol testing of employees conducted by an
5 11 employer shall normally occur during, or immediately before or
5 12 after, a regular work period. The time required for such
5 13 testing by an employer shall be deemed work time for the
5 14 purposes of compensation and benefits for employees.
5 15 b. An employer shall pay all actual costs for drug or
5 16 alcohol testing of employees and prospective employees
5 17 required by the employer.
5 18 c. An employer shall provide transportation or pay
5 19 reasonable transportation costs to employees if drug or
5 20 alcohol sample collection is conducted at a location other
5 21 than the employee's normal work site.
5 22 7. TESTING PROCEDURES. All sample collection and testing
5 23 for drugs or alcohol under this section shall be performed in
5 24 accordance with the following conditions:
5 25 a. The collection of samples shall be performed under
5 26 sanitary conditions and with regard for the privacy of the
5 27 individual from whom the specimen is being obtained and in a
5 28 manner reasonably calculated to preclude contamination or
5 29 substitution of the specimen.
5 30 b. Sample collection for testing of current employees
5 31 shall be performed so that the specimen is split into two
5 32 components at the time of collection in the presence of the
5 33 individual from whom the sample or specimen is collected. The
5 34 second portion of the specimen or sample shall be of
5 35 sufficient quantity to permit a second, independent
6 1 confirmatory test as provided in paragraph "i". If the
6 2 specimen is urine, the sample shall be split such that the
6 3 primary sample contains at least thirty milliliters and the
6 4 secondary sample contains at least fifteen milliliters. Both
6 5 portions of the sample shall be forwarded to the laboratory
6 6 conducting the initial confirmatory testing. In addition to
6 7 any requirements for storage of the initial sample that may be
6 8 imposed upon the laboratory as a condition for certification
6 9 or approval, the laboratory shall store the second portion of
6 10 any sample until receipt of a confirmed negative test result
6 11 or for a period of at least forty-five calendar days following
6 12 the completion of the initial confirmatory testing, if the
6 13 first portion yielded a confirmed positive test result.
6 14 c. Sample collections shall be documented, and the
6 15 procedure for documentation shall include the following:
6 16 (1) Samples shall be labeled so as to reasonably preclude
6 17 the possibility of misidentification of the person tested in
6 18 relation to the test result provided, and samples shall be
6 19 handled and tracked in a manner such that control and
6 20 accountability are maintained from initial collection to each
6 21 stage in handling, testing, and storage, through final
6 22 disposition.
6 23 (2) An employee or prospective employee shall be provided
6 24 an opportunity to provide any information which may be
6 25 considered relevant to the test, including identification of
6 26 prescription or nonprescription drugs currently or recently
6 27 used, or other relevant medical information. To assist an
6 28 employee or prospective employee in providing the information
6 29 described in this subparagraph, the employer shall provide an
6 30 employee or prospective employee with a list of the drugs to
6 31 be tested.
6 32 d. Sample collection, storage, and transportation to the
6 33 place of testing shall be performed so as to reasonably
6 34 preclude the possibility of sample contamination,
6 35 adulteration, or misidentification.
7 1 e. All confirmatory drug testing shall be conducted at a
7 2 laboratory certified by the United States department of health
7 3 and human services' substance abuse and mental health services
7 4 administration or approved under rules adopted by the Iowa
7 5 department of public health.
7 6 f. Drug or alcohol testing shall include confirmation of
7 7 any initial positive test results. For drug or alcohol
7 8 testing, confirmation shall be by use of a different chemical
7 9 process than was used in the initial screen for drugs or
7 10 alcohol. The confirmatory drug or alcohol test shall be a
7 11 chromatographic technique such as gas chromatography or mass
7 12 spectrometry, or another comparably reliable analytical
7 13 method. An employer may take adverse employment action,
7 14 including refusal to hire a prospective employee, based on a
7 15 confirmed positive drug or alcohol test.
7 16 g. A medical review officer shall, prior to the results
7 17 being reported to an employer, review and interpret any
7 18 confirmed positive test results, including both quantitative
7 19 and qualitative test results, to ensure that the chain of
7 20 custody is complete and sufficient on its face and that any
7 21 information provided by the individual pursuant to paragraph
7 22 "c", subparagraph (2), is considered.
7 23 h. In conducting drug or alcohol testing pursuant to this
7 24 section, the laboratory, the medical review officer, and the
7 25 employer shall ensure, to the extent feasible, that the
7 26 testing only measure, and the records concerning the testing
7 27 only show or make use of information regarding, alcohol or
7 28 drugs in the body.
7 29 i. (1) If a confirmed positive drug or alcohol test for a
7 30 current employee is reported to the employer by the medical
7 31 review officer, the employer shall notify the employee in
7 32 writing by certified mail, return receipt requested, of the
7 33 results of the test, the employee's right to request and
7 34 obtain a confirmatory test of the second sample collected
7 35 pursuant to paragraph "b" at an approved laboratory of the
8 1 employee's choice, and the fee payable by the employee to the
8 2 employer for reimbursement of expenses concerning the test.
8 3 The fee charged an employee shall be an amount that represents
8 4 the costs associated with conducting the second confirmatory
8 5 test, which shall be consistent with the employer's cost for
8 6 conducting the initial confirmatory test on an employee's
8 7 sample. If the employee, in person or by certified mail,
8 8 return receipt requested, requests a second confirmatory test,
8 9 identifies an approved laboratory to conduct the test, and
8 10 pays the employer the fee for the test within seven days from
8 11 the date the employer mails by certified mail, return receipt
8 12 requested, the written notice to the employee of the
8 13 employee's right to request a test, a second confirmatory test
8 14 shall be conducted at the laboratory chosen by the employee.
8 15 The results of the second confirmatory test shall be reported
8 16 to the medical review officer who reviewed the initial
8 17 confirmatory test results and the medical review officer shall
8 18 review the results and issue a report to the employer on
8 19 whether the results of the second confirmatory test confirmed
8 20 the initial confirmatory test as to the presence of a specific
8 21 drug or alcohol. If the results of the second test do not
8 22 confirm the results of the initial confirmatory test, the
8 23 employer shall reimburse the employee for the fee paid by the
8 24 employee for the second test and the initial confirmatory test
8 25 shall not be considered a confirmed positive drug or alcohol
8 26 test for purposes of taking disciplinary action pursuant to
8 27 subsection 10.
8 28 (2) If a confirmed positive drug or alcohol test for a
8 29 prospective employee is reported to the employer by the
8 30 medical review officer, the employer shall notify the
8 31 prospective employee in writing of the results of the test, of
8 32 the name and address of the medical review officer who made
8 33 the report, and of the prospective employee's right to request
8 34 records under subsection 13.
8 35 j. A laboratory conducting testing under this section
9 1 shall dispose of all samples for which a negative test result
9 2 was reported to an employer within five working days after
9 3 issuance of the negative test result report.
9 4 k. Except as necessary to conduct drug or alcohol testing
9 5 pursuant to this section and to submit the report required by
9 6 subsection 16, a laboratory or other medical facility shall
9 7 only report to an employer or outside entity information
9 8 relating to the results of a drug or alcohol test conducted
9 9 pursuant to this section concerning the determination of
9 10 whether the tested individual has engaged in conduct
9 11 prohibited by the employer's written policy with regard to
9 12 alcohol or drug use.
9 13 l. Notwithstanding the provisions of this subsection, an
9 14 employer may rely and take action upon the results of any
9 15 blood test for drugs or alcohol made on any employee involved
9 16 in an accident at work if the test is administered by or at
9 17 the direction of the person providing treatment or care to the
9 18 employee without request or suggestion by the employer that a
9 19 test be conducted, and the employer has lawfully obtained the
9 20 results of the test. For purposes of this paragraph, an
9 21 employer shall not be deemed to have requested or required a
9 22 test in conjunction with the provision of medical treatment
9 23 following a workplace accident by providing information
9 24 concerning the circumstance of the accident.
9 25 8. DRUG OR ALCOHOL TESTING. Employers may conduct drug or
9 26 alcohol testing as provided in this subsection:
9 27 a. Employers may conduct unannounced drug or alcohol
9 28 testing of employees who are selected from any of the
9 29 following pools of employees:
9 30 (1) The entire employee population at a particular work
9 31 site of the employer except for employees who are not
9 32 scheduled to be at work at the time the testing is conducted
9 33 because of the status of the employees or who have been
9 34 excused from work pursuant to the employer's work policy prior
9 35 to the time the testing is announced to employees.
10 1 (2) The entire full-time active employee population at a
10 2 particular work site except for employees who are not
10 3 scheduled to be at work at the time the testing is to be
10 4 conducted because of the status of the employee, or who have
10 5 been excused from work pursuant to the employer's working
10 6 policy.
10 7 (3) All employees at a particular work site who are in a
10 8 pool of employees in a safety-sensitive position and who are
10 9 scheduled to be at work at the time testing is conducted,
10 10 other than employees who are not scheduled to be at work at
10 11 the time the testing is to be conducted or who have been
10 12 excused from work pursuant to the employer's work policy prior
10 13 to the time the testing is announced to employees.
10 14 b. Employers may conduct drug or alcohol testing of
10 15 employees during, and after completion of, drug or alcohol
10 16 rehabilitation.
10 17 c. Employers may conduct reasonable suspicion drug or
10 18 alcohol testing.
10 19 d. Employers may conduct drug or alcohol testing of
10 20 prospective employees.
10 21 e. Employers may conduct drug or alcohol testing as
10 22 required by federal law or regulation or by law enforcement.
10 23 f. Employers may conduct drug or alcohol testing in
10 24 investigating accidents in the workplace in which the accident
10 25 resulted in an injury to a person for which injury, if
10 26 suffered by an employee, a record or report could be required
10 27 under chapter 88, or resulted in damage to property, including
10 28 to equipment, in an amount reasonably estimated at the time of
10 29 the accident to exceed one thousand dollars.
10 30 9. WRITTEN POLICY AND OTHER TESTING REQUIREMENTS.
10 31 a. Drug or alcohol testing or retesting by an employer
10 32 shall be carried out within the terms of a written policy
10 33 which has been provided to every employee subject to testing,
10 34 and is available for review by employees and prospective
10 35 employees.
11 1 b. The employer's written policy shall provide uniform
11 2 requirements for what disciplinary or rehabilitative actions
11 3 an employer shall take against an employee or prospective
11 4 employee upon receipt of a confirmed positive drug or alcohol
11 5 test result or upon the refusal of the employee or prospective
11 6 employee to provide a testing sample. The policy shall
11 7 provide that any action taken against an employee or
11 8 prospective employee shall be based only on the results of the
11 9 drug or alcohol test. The written policy shall also provide
11 10 that if rehabilitation is required pursuant to paragraph "g",
11 11 the employer shall not take adverse employment action against
11 12 the employee so long as the employee complies with the
11 13 requirements of rehabilitation and successfully completes
11 14 rehabilitation.
11 15 c. Employers shall establish an awareness program to
11 16 inform employees of the dangers of drug and alcohol use in the
11 17 workplace and comply with the following requirements in order
11 18 to conduct drug or alcohol testing under this section:
11 19 (1) If an employer has an employee assistance program, the
11 20 employer must inform the employee of the benefits and services
11 21 of the employee assistance program. An employer shall post
11 22 notice of the employee assistance program in conspicuous
11 23 places and explore alternative routine and reinforcing means
11 24 of publicizing such services. In addition, the employer must
11 25 provide the employee with notice of the policies and
11 26 procedures regarding access to and utilization of the program.
11 27 (2) If an employer does not have an employee assistance
11 28 program, the employer must maintain a resource file of
11 29 employee assistance services providers, alcohol and other drug
11 30 abuse programs certified by the Iowa department of public
11 31 health, mental health providers, and other persons, entities,
11 32 or organizations available to assist employees with personal
11 33 or behavioral problems. The employer shall provide all
11 34 employees information about the existence of the resource file
11 35 and a summary of the information contained within the resource
12 1 file. The summary should contain, but need not be limited to,
12 2 all information necessary to access the services listed in the
12 3 resource file. In addition, the employer shall post in
12 4 conspicuous places a listing of multiple employee assistance
12 5 providers in the area.
12 6 d. An employee or prospective employee whose drug or
12 7 alcohol test results are confirmed as positive in accordance
12 8 with this section shall not, by virtue of those results alone,
12 9 be considered as a person with a disability for purposes of
12 10 any state or local law or regulation.
12 11 e. If the written policy provides for alcohol testing, the
12 12 employer shall establish in the written policy a standard for
12 13 alcohol concentration which shall be deemed to violate the
12 14 policy. The standard for alcohol concentration shall not be
12 15 less than .04, expressed in terms of grams of alcohol per two
12 16 hundred ten liters of breath, or its equivalent.
12 17 f. An employee of an employer who is designated by the
12 18 employer as being in a safety-sensitive position shall be
12 19 placed in only one pool of safety-sensitive employees subject
12 20 to drug or alcohol testing pursuant to subsection 8, paragraph
12 21 "a", subparagraph (3). An employer may have more than one
12 22 pool of safety-sensitive employees subject to drug or alcohol
12 23 testing pursuant to subsection 8, paragraph "a", subparagraph
12 24 (3), but shall not include an employee in more than one
12 25 safety-sensitive pool.
12 26 g. Upon receipt of a confirmed positive alcohol test which
12 27 indicates an alcohol concentration greater than the
12 28 concentration level established by the employer pursuant to
12 29 this section but less than the concentration level in section
12 30 321J.2 for operating while under the influence of alcohol, and
12 31 if the employer has at least fifty employees, and if the
12 32 employee has been employed by the employer for at least twelve
12 33 of the preceding eighteen months, and if rehabilitation is
12 34 agreed upon by the employee, and if the employee has not
12 35 previously violated the employer's substance abuse prevention
13 1 policy pursuant to this section, the written policy shall
13 2 provide for the rehabilitation of the employee pursuant to
13 3 subsection 10, paragraph "a", subparagraph (1), and the
13 4 apportionment of the costs of rehabilitation as provided by
13 5 this paragraph.
13 6 (1) If the employer has an employee benefit plan, the
13 7 costs of rehabilitation shall be apportioned as provided under
13 8 the employee benefit plan.
13 9 (2) If no employee benefit plan exists and the employee
13 10 has coverage for any portion of the costs of rehabilitation
13 11 under any health care plan of the employee, the costs of
13 12 rehabilitation shall be apportioned as provided by the health
13 13 care plan with any costs not covered by the plan apportioned
13 14 equally between the employee and the employer. However, the
13 15 employer shall not be required to pay more than two thousand
13 16 dollars toward the costs not covered by the employee's health
13 17 care plan.
13 18 (3) If no employee benefit plan exists and the employee
13 19 does not have coverage for any portion of the costs of
13 20 rehabilitation under any health care plan of the employee, the
13 21 costs of rehabilitation shall be apportioned equally between
13 22 the employee and the employer. However, the employer shall
13 23 not be required to pay more than two thousand dollars towards
13 24 the cost of rehabilitation under this subparagraph.
13 25 Rehabilitation required pursuant to this paragraph shall
13 26 not preclude an employer from taking any adverse employment
13 27 action against the employee during the rehabilitation based on
13 28 the employee's failure to comply with any requirements of the
13 29 rehabilitation, including any action by the employee to
13 30 invalidate a test sample provided by the employee pursuant to
13 31 the rehabilitation.
13 32 h. In order to conduct drug or alcohol testing under this
13 33 section, an employer shall require supervisory personnel of
13 34 the employer involved with drug or alcohol testing under this
13 35 section to attend a minimum of two hours of initial training
14 1 and to attend, on an annual basis thereafter, a minimum of one
14 2 hour of subsequent training. The training shall include, but
14 3 is not limited to, information concerning the recognition of
14 4 evidence of employee alcohol and other drug abuse, the
14 5 documentation and corroboration of employee alcohol and other
14 6 drug abuse, and the referral of employees who abuse alcohol or
14 7 other drugs to the employee assistance program or to the
14 8 resource file of employee assistance services providers.
14 9 10. DISCIPLINARY PROCEDURES.
14 10 a. Upon receipt of a confirmed positive drug or alcohol
14 11 test result which indicates a violation of the employer's
14 12 written policy, or upon the refusal of an employee or
14 13 prospective employee to provide a testing sample, an employer
14 14 may use that test result or test refusal as a valid basis for
14 15 disciplinary or rehabilitative actions pursuant to the
14 16 requirements of the employer's written policy and the
14 17 requirements of this section, which may include, among other
14 18 actions, the following:
14 19 (1) A requirement that the employee enroll in an employer-
14 20 provided or approved rehabilitation, treatment, or counseling
14 21 program, which may include additional drug or alcohol testing,
14 22 participation in and successful completion of which may be a
14 23 condition of continued employment, and the costs of which may
14 24 or may not be covered by the employer's health plan or
14 25 policies.
14 26 (2) Suspension of the employee, with or without pay, for a
14 27 designated period of time.
14 28 (3) Termination of employment.
14 29 (4) Refusal to hire a prospective employee.
14 30 (5) Other adverse employment action in conformance with
14 31 the employer's written policy and procedures, including any
14 32 relevant collective bargaining agreement provisions.
14 33 b. Following a drug or alcohol test, but prior to receipt
14 34 of the final results of the drug or alcohol test, an employer
14 35 may suspend a current employee, with or without pay, pending
15 1 the outcome of the test. An employee who has been suspended
15 2 shall be reinstated by the employer, with back pay, and
15 3 interest on such amount at eighteen percent per annum
15 4 compounded annually, if applicable, if the result of the test
15 5 is not a confirmed positive drug or alcohol test which
15 6 indicates a violation of the employer's written policy.
15 7 11. EMPLOYER IMMUNITY. A cause of action shall not arise
15 8 against an employer who has established a policy and initiated
15 9 a testing program in accordance with the testing and policy
15 10 safeguards provided for under this section, for any of the
15 11 following:
15 12 a. Testing or taking action based on the results of a
15 13 positive drug or alcohol test result, indicating the presence
15 14 of drugs or alcohol, in good faith, or on the refusal of an
15 15 employee or prospective employee to submit to a drug or
15 16 alcohol test.
15 17 b. Failure to test for drugs or alcohol, or failure to
15 18 test for a specific drug or controlled substance.
15 19 c. Failure to test for, or if tested for, failure to
15 20 detect, any specific drug or other controlled substance.
15 21 d. Termination or suspension of any substance abuse
15 22 prevention or testing program or policy.
15 23 e. Any action taken related to a false negative drug or
15 24 alcohol test result.
15 25 12. EMPLOYER LIABILITY – FALSE POSITIVE TEST RESULTS.
15 26 a. Except as otherwise provided in paragraph "b", a cause
15 27 of action shall not arise against an employer who has
15 28 established a program of drug or alcohol testing in accordance
15 29 with this section, unless all of the following conditions
15 30 exist:
15 31 (1) The employer's action was based on a false positive
15 32 test result.
15 33 (2) The employer knew or clearly should have known that
15 34 the test result was in error and ignored the correct test
15 35 result because of reckless, malicious, or negligent disregard
16 1 for the truth, or the willful intent to deceive or to be
16 2 deceived.
16 3 b. A cause of action for defamation, libel, slander, or
16 4 damage to reputation shall not arise against an employer
16 5 establishing a program of drug or alcohol testing in
16 6 accordance with this section unless all of the following
16 7 apply:
16 8 (1) The employer discloses the test results to a person
16 9 other than the employer, an authorized employee, agent, or
16 10 representative of the employer, the tested employee or the
16 11 tested applicant for employment, an authorized substance abuse
16 12 treatment program or employee assistance program, or an
16 13 authorized agent or representative of the tested employee or
16 14 applicant.
16 15 (2) The test results disclosed incorrectly indicate the
16 16 presence of alcohol or drugs.
16 17 (3) The employer negligently discloses the results.
16 18 c. In any cause of action based upon a false positive test
16 19 result, all of the following conditions apply:
16 20 (1) The results of a drug or alcohol test conducted in
16 21 compliance with this section are presumed to be valid.
16 22 (2) An employer shall not be liable for monetary damages
16 23 if the employer's reliance on the false positive test result
16 24 was reasonable and in good faith.
16 25 13. CONFIDENTIALITY OF RESULTS – EXCEPTION.
16 26 a. All communications received by an employer relevant to
16 27 employee or prospective employee drug or alcohol test results,
16 28 or otherwise received through the employer's drug or alcohol
16 29 testing program, are confidential communications and shall not
16 30 be used or received in evidence, obtained in discovery, or
16 31 disclosed in any public or private proceeding, except as
16 32 otherwise provided or authorized by this section.
16 33 b. An employee, or a prospective employee, who is the
16 34 subject of a drug or alcohol test conducted under this section
16 35 pursuant to an employer's written policy and for whom a
17 1 confirmed positive test result is reported shall, upon written
17 2 request, have access to any records relating to the employee's
17 3 drug or alcohol test, including records of the laboratory
17 4 where the testing was conducted and any records relating to
17 5 the results of any relevant certification or review by a
17 6 medical review officer. However, a prospective employee shall
17 7 be entitled to records under this paragraph only if the
17 8 prospective employee requests the records within fifteen
17 9 calendar days from the date the employer provided the
17 10 prospective employee written notice of the results of a drug
17 11 or alcohol test as provided in subsection 7, paragraph "i",
17 12 subparagraph (2).
17 13 c. Except as provided by this section and as necessary to
17 14 conduct drug or alcohol testing under this section and to file
17 15 a report pursuant to subsection 16, a laboratory and a medical
17 16 review officer conducting drug or alcohol testing under this
17 17 section shall not use or disclose to any person any personally
17 18 identifiable information regarding such testing, including the
17 19 names of individuals tested, even if unaccompanied by the
17 20 results of the test.
17 21 d. An employer may use and disclose information concerning
17 22 the results of a drug or alcohol test conducted pursuant to
17 23 this section under any of the following circumstances:
17 24 (1) In an arbitration proceeding pursuant to a collective
17 25 bargaining agreement, or an administrative agency proceeding
17 26 or judicial proceeding under workers' compensation laws or
17 27 unemployment compensation laws or under common or statutory
17 28 laws where action taken by the employer based on the test is
17 29 relevant or is challenged.
17 30 (2) To any federal agency or other unit of the federal
17 31 government as required under federal law, regulation or order,
17 32 or in accordance with compliance requirements of a federal
17 33 government contract.
17 34 (3) To any agency of this state authorized to license
17 35 individuals if the employee tested is licensed by that agency
18 1 and the rules of that agency require such disclosure.
18 2 (4) To a union representing the employee if such
18 3 disclosure would be required by federal labor laws.
18 4 (5) To a substance abuse evaluation or treatment facility
18 5 or professional for the purpose of evaluation or treatment of
18 6 the employee.
18 7 However, positive test results from an employer drug or
18 8 alcohol testing program shall not be used as evidence in any
18 9 criminal action against the employee or prospective employee
18 10 tested.
18 11 14. CIVIL PENALTIES – JURISDICTION.
18 12 a. Any laboratory or medical review officer which
18 13 discloses information in violation of the provisions of
18 14 subsection 7, paragraph "h" or "k", or any employer who,
18 15 through the selection process described in subsection 1,
18 16 paragraph "k", improperly targets or exempts employees subject
18 17 to unannounced drug or alcohol testing, shall be subject to a
18 18 civil penalty of one thousand dollars for each violation. The
18 19 attorney general or the attorney general's designee may
18 20 maintain a civil action to enforce this subsection. Any civil
18 21 penalty recovered shall be deposited in the general fund of
18 22 the state.
18 23 b. A laboratory or medical review officer involved in the
18 24 conducting of a drug or alcohol test pursuant to this section
18 25 shall be deemed to have the necessary contact with this state
18 26 for the purpose of subjecting the laboratory or medical review
18 27 officer to the jurisdiction of the courts of this state.
18 28 15. CIVIL REMEDIES. This section may be enforced through
18 29 a civil action.
18 30 a. A person who violates this section or who aids in the
18 31 violation of this section, is liable to an aggrieved employee
18 32 or prospective employee for affirmative relief including
18 33 reinstatement or hiring, with or without back pay, or any
18 34 other equitable relief as the court deems appropriate
18 35 including attorney fees and court costs.
19 1 b. When a person commits, is committing, or proposes to
19 2 commit, an act in violation of this section, an injunction may
19 3 be granted through an action in district court to prohibit the
19 4 person from continuing such acts. The action for injunctive
19 5 relief may be brought by an aggrieved employee or prospective
19 6 employee, the county attorney, or the attorney general.
19 7 In an action brought under this subsection alleging that an
19 8 employer has required or requested a drug or alcohol test in
19 9 violation of this section, the employer has the burden of
19 10 proving that the requirements of this section were met.
19 11 16. REPORTS. A laboratory doing business for an employer
19 12 who conducts drug or alcohol tests pursuant to this section
19 13 shall file an annual report with the Iowa department of public
19 14 health by March 1 of each year concerning the number of drug
19 15 or alcohol tests conducted on employees who work in this state
19 16 pursuant to this section, the number of positive and negative
19 17 results of the tests, during the previous calendar year. In
19 18 addition, the laboratory shall include in its annual report
19 19 the specific basis for each test as authorized in subsection
19 20 8, the type of drug or drugs which were found in the positive
19 21 drug tests, and all significant available demographic factors
19 22 relating to the positive test pool.
19 23 Sec. 2. EFFECTIVE DATE. This Act takes effect on the
19 24 thirtieth day following enactment.
19 25
19 26
19 27
19 28 RON J. CORBETT
19 29 Speaker of the House
19 30
19 31
19 32
19 33 MARY E. KRAMER
19 34 President of the Senate
19 35
20 1 I hereby certify that this bill originated in the House and
20 2 is known as House File 299, Seventy-seventh General Assembly.
20 3
20 4
20 5
20 6 ELIZABETH ISAACSON
20 7 Chief Clerk of the House
20 8 Approved , 1998
20 9
20 10
20 11
20 12 TERRY E. BRANSTAD
20 13 Governor
Text: HF00298 Text: HF00300 Text: HF00200 - HF00299 Text: HF Index Bills and Amendments: General Index Bill History: General Index
© 1998 Cornell College and League of Women Voters of Iowa
Comments about this site or page?
webmaster@legis.iowa.gov.
Please remember that the person listed above does not vote on bills. Direct all comments concerning legislation to State Legislators.
Last update: Thu Apr 9 03:47:31 CDT 1998
URL: /DOCS/GA/77GA/Legislation/HF/00200/HF00299/980305.html
jhf