Text: HSB00104 Text: HSB00106 Text: HSB00100 - HSB00199 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 Section 1. Section 730.5, Code 1997, is amended by
1 2 striking the section and inserting in lieu thereof the
1 3 following:
1 4 730.5 PRIVATE SECTOR DRUG-FREE WORKPLACES.
1 5 1. DEFINITIONS. As used in this section, unless the
1 6 context otherwise requires:
1 7 a. "Alcohol" means ethanol, isopropanol, or methanol.
1 8 b. "Drug" means a substance considered unlawful under the
1 9 federal Controlled Substances Act, 21 U.S.C. } 801 et seq.
1 10 c. "Employee" means a person in the service of an employer
1 11 and includes the employer, and any chief executive officer,
1 12 president, vice president, supervisor, manager, and officer of
1 13 the employer.
1 14 d. "Employer" means a person, firm, company, corporation,
1 15 labor organization, employment agency, or joint labor-
1 16 management committee, including any public utility or public
1 17 transportation entity, which has one or more full-time
1 18 employees employed in the same business, or in or about the
1 19 same establishment, under any contract of hire, express or
1 20 implied, oral or written, in this state. "Employer" does not
1 21 include the state, a political subdivision of the state,
1 22 including a city, county, or school district, the United
1 23 States, the United States postal service, or a Native-American
1 24 tribe.
1 25 e. "Good faith" means reasonable reliance on facts, or
1 26 that which is held out to be factual, without the intent to be
1 27 deceived, and without reckless, malicious, or negligent
1 28 disregard for the truth.
1 29 f. "Medical review officer" means a physician licensed to
1 30 practice medicine and surgery or osteopathic medicine and
1 31 surgery in any state of the United States, responsible for
1 32 receiving laboratory results generated by an employer's drug
1 33 testing program, who has knowledge of substance abuse
1 34 disorders and has appropriate medical training to interpret
1 35 and evaluate an individual's confirmed positive test result
2 1 together with the individual's medical history and any other
2 2 relevant biomedical information.
2 3 g. "Prospective employee" means a person who has made
2 4 application, whether written or oral, to an employer to become
2 5 an employee.
2 6 h. "Reasonable suspicion drug and alcohol testing" means
2 7 testing for the purposes of detecting drugs or alcohol which
2 8 is conducted on an individual based on a criterion or criteria
2 9 that would suggest to a reasonable person that the individual
2 10 may have engaged in illicit drug use or alcohol abuse, or has
2 11 a substance abuse problem.
2 12 i. "Safety-sensitive position" means a job wherein an
2 13 accident could cause loss of human life, serious bodily
2 14 injury, or significant property or environmental damage.
2 15 j. "Sample" means such sample of the human body capable of
2 16 revealing the presence of alcohol or other drugs, or their
2 17 metabolites.
2 18 k. "Unannounced drug and alcohol testing" means testing
2 19 for the purposes of detecting drugs or alcohol which is
2 20 conducted on a periodic basis, without advance notice of the
2 21 test, and without individualized suspicion, and with a neutral
2 22 and objective selection process in which each member of the
2 23 employee population subject to testing has an equal chance of
2 24 selection for initial testing.
2 25 2. TESTING OPTIONAL. This section does not require an
2 26 employer to conduct drug and alcohol testing and the
2 27 requirements of this section shall not be construed to
2 28 encourage, discourage, restrict, limit, prohibit, or require
2 29 such testing.
2 30 3. TESTING AS CONDITION OF EMPLOYMENT – REQUIREMENTS. To
2 31 the extent provided in subsection 7, an employer may test
2 32 employees and prospective employees for the presence of drugs
2 33 or alcohol as a condition of continued employment or hiring.
2 34 An employer shall adhere to the requirements of this section
2 35 concerning the conducting of such testing and the use and
3 1 disposition of the results of such testing.
3 2 4. COLLECTION OF SAMPLES. In conducting drug and alcohol
3 3 testing, an employer may require the collection of samples
3 4 from its employees and prospective employees, and may require
3 5 presentation of reliable individual identification from the
3 6 person being tested to the person collecting the samples.
3 7 Collection of a sample shall be in conformance with the
3 8 requirements of this section. The employer may designate the
3 9 type of sample to be used for this testing.
3 10 5. SCHEDULING OF TESTS.
3 11 a. Drug or alcohol testing of employees conducted by an
3 12 employer shall normally occur during, or immediately before or
3 13 after, a regular work period. The time required for such
3 14 testing by an employer shall be deemed work time for the
3 15 purposes of compensation and benefits for employees.
3 16 b. An employer shall pay all actual costs for drug and
3 17 alcohol testing of employees and prospective employees
3 18 required by the employer.
3 19 c. An employer shall provide transportation or pay
3 20 reasonable transportation costs to employees if drug and
3 21 alcohol testing is conducted at a location other than the
3 22 employee's normal work site.
3 23 6. TESTING PROCEDURES. All sample collection and testing
3 24 for drugs and alcohol under this section shall be performed in
3 25 accordance with the following conditions:
3 26 a. The collection of samples shall be performed under
3 27 sanitary conditions and with regard for the privacy of the
3 28 individual from whom the specimen is being obtained and in a
3 29 manner reasonably calculated to preclude contamination or
3 30 substitution of the specimen.
3 31 b. Sample collections shall be documented, and the
3 32 procedure for documentation shall include the following:
3 33 (1) Samples shall be labeled so as to reasonably preclude
3 34 the possibility of misidentification of the person tested in
3 35 relation to the test result provided, and samples shall be
4 1 handled and tracked in a manner such that control and
4 2 accountability are maintained from initial collection to each
4 3 stage in handling, testing, and storage, through final
4 4 disposition.
4 5 (2) An employee or prospective employee shall be provided
4 6 an opportunity to provide any information which may be
4 7 considered relevant to the test, including identification of
4 8 prescription or nonprescription drugs currently or recently
4 9 used, or other relevant medical information. A medical review
4 10 officer shall review and verify a laboratory sample which
4 11 tests positive in a confirmatory test to ensure consideration
4 12 of information provided pursuant to this subparagraph prior to
4 13 the results being reported to an employer.
4 14 c. Sample collection, storage, and transportation to the
4 15 place of testing shall be performed so as reasonably to
4 16 preclude the possibility of sample contamination,
4 17 adulteration, or misidentification.
4 18 d. Confirmatory drug testing shall be conducted at a
4 19 laboratory certified by the United States department of health
4 20 and human services' substance abuse and mental health services
4 21 administration, approved by the United States department of
4 22 health and human services under the federal Clinical
4 23 Laboratory Improvement Act, or approved under rules adopted by
4 24 the Iowa department of public health.
4 25 e. Drug and alcohol testing shall include confirmation of
4 26 any initial positive test results. For drug testing,
4 27 confirmation shall be by use of a different chemical process
4 28 than was used by the employer in the initial drug screen. The
4 29 confirmatory drug test shall be a chromatographic technique
4 30 such as gas chromatography or mass spectrometry, or another
4 31 comparably reliable analytical method. An employer may take
4 32 adverse employment action, including refusal to hire a
4 33 prospective employee, based only on a confirmed positive drug
4 34 or alcohol test.
4 35 7. DRUG AND ALCOHOL TESTING. Employers may conduct drug
5 1 and alcohol testing as provided in this subsection:
5 2 a. Employers may conduct unannounced drug and alcohol
5 3 testing of the employee population at large or of segments of
5 4 employee work groups.
5 5 b. Employers may conduct drug and alcohol testing of
5 6 employees in a safety-sensitive position.
5 7 c. Employers may conduct drug and alcohol testing of
5 8 employees during, and after completion of, drug or alcohol
5 9 rehabilitation.
5 10 d. Employers may conduct reasonable suspicion drug and
5 11 alcohol testing if there is reasonable suspicion to believe,
5 12 based on the employee's performance, behavior, attendance, or
5 13 other observable criterion or criteria, that the employee has
5 14 engaged in illicit drug use, or may be under the influence of
5 15 alcohol, or may be otherwise impaired by drugs or alcohol, or
5 16 if an employer believes, in good faith, that the employee may
5 17 have violated the employer's written substance abuse
5 18 prevention policy.
5 19 e. Employers may conduct drug and alcohol testing of
5 20 prospective employees.
5 21 f. Employers may conduct drug and alcohol testing as
5 22 required by federal law or regulation.
5 23 g. Employers may conduct drug and alcohol testing in
5 24 investigating accidents in the workplace or incidents of
5 25 workplace theft or other employee misconduct.
5 26 8. WRITTEN POLICY AND OTHER TESTING REQUIREMENTS.
5 27 a. Drug and alcohol testing or retesting by an employer
5 28 shall be carried out within the terms of a written policy
5 29 which has been provided to every employee subject to testing,
5 30 and is available for review by prospective employees.
5 31 b. Employers shall provide employees, when requested and
5 32 as appropriate, with information as to the existence and
5 33 availability within the local community of counseling,
5 34 employee assistance, rehabilitation, and other alcohol and
5 35 drug abuse treatment programs of which the employer is aware.
6 1 c. Within the terms of the written policy, an employer may
6 2 require the collection and testing of samples for, among other
6 3 legitimate drug abuse prevention and treatment purposes, any
6 4 of the following:
6 5 (1) Deterrence and detection of possible illicit drug use,
6 6 possession, sale, conveyance, distribution, or manufacture of
6 7 drugs, intoxicants, or controlled substances in any amount or
6 8 in any manner, whether or not the employee is at work, or
6 9 deterrence and detection of possible abuse of alcohol or
6 10 prescription drugs.
6 11 (2) Investigation of possible individual employee
6 12 impairment.
6 13 (3) Investigation of accidents in the workplace or
6 14 incidents of workplace theft or other employee misconduct.
6 15 (4) Maintenance of safety for employees, customers,
6 16 clients, or the general public.
6 17 (5) Maintenance of productivity, quality of products or
6 18 services, or security of property or information.
6 19 d. An employee or prospective employee whose drug or
6 20 alcohol test results are confirmed as positive in accordance
6 21 with this section shall not, by virtue of those results alone,
6 22 be considered as a person with a disability for purposes of
6 23 any state or local law or regulation.
6 24 9. DISCIPLINARY PROCEDURES. Upon receipt of a confirmed
6 25 positive drug or alcohol test result which indicates a
6 26 violation of the employer's written policy, or upon the
6 27 refusal of an employee or prospective employee to provide a
6 28 testing sample, an employer may use that test result or test
6 29 refusal as a valid basis for disciplinary or rehabilitative
6 30 actions, which may include, among other actions, the
6 31 following:
6 32 a. A requirement that the employee enroll in an employer-
6 33 provided or approved rehabilitation, treatment, or counseling
6 34 program, which may include additional drug or alcohol testing,
6 35 participation in and successful completion of which may be a
7 1 condition of continued employment, and the costs of which may
7 2 or may not be covered by the employer's health plan or
7 3 policies.
7 4 b. Suspension of the employee, with or without pay, for a
7 5 designated period of time.
7 6 c. Termination of employment.
7 7 d. Refusal to hire a prospective employee.
7 8 e. Other adverse employment action in conformance with the
7 9 employer's written policy and procedures, including any
7 10 relevant collective bargaining agreement provisions.
7 11 10. EMPLOYER IMMUNITY. A cause of action shall not arise
7 12 against an employer who has established a policy and initiated
7 13 a testing program in accordance with the testing and policy
7 14 safeguards provided for under this section, for any of the
7 15 following:
7 16 a. Testing or taking action based on the results of a
7 17 positive drug or alcohol test result, indicating the presence
7 18 of drugs or alcohol, in good faith, or the refusal of an
7 19 employee or prospective employee to submit to a drug or
7 20 alcohol test.
7 21 b. Failure to test for drugs or alcohol, or failure to
7 22 test for a specific drug or controlled substance.
7 23 c. Failure to test for, or if tested for, failure to
7 24 detect, any specific drug or other controlled substance, any
7 25 medical condition, or any mental, emotional, or psychological
7 26 disorder or condition.
7 27 d. Termination or suspension of any substance abuse
7 28 prevention or testing program or policy.
7 29 e. Any action taken related to a false negative drug or
7 30 alcohol test result.
7 31 11. EMPLOYER LIABILITY – FALSE POSITIVE TEST RESULTS.
7 32 a. Except as otherwise provided in paragraph "b", a cause
7 33 of action shall not arise against an employer who has
7 34 established a program of drug and alcohol testing in
7 35 accordance with this section, unless all of the following
8 1 conditions exist:
8 2 (1) The employer's action was based on a false positive
8 3 test result.
8 4 (2) The employer knew or clearly should have known that
8 5 the test result was in error and ignored the correct test
8 6 result because of reckless, malicious, or negligent disregard
8 7 for the truth, or the willful intent to deceive or to be
8 8 deceived.
8 9 b. A cause of action for defamation, libel, slander, or
8 10 damage to reputation shall not arise against an employer
8 11 establishing a program of drug and alcohol testing in
8 12 accordance with this section unless all of the following
8 13 apply:
8 14 (1) The employer discloses the test results to a person
8 15 other than the employer, an authorized employee, agent, or
8 16 representative of the employer, the tested employee or the
8 17 tested applicant for employment, or an authorized agent or
8 18 representative of the tested employee or applicant.
8 19 (2) The test results disclosed incorrectly indicate the
8 20 presence of alcohol or drugs.
8 21 (3) The employer negligently discloses the results.
8 22 c. In any cause of action based upon a false positive test
8 23 result, all of the following conditions apply:
8 24 (1) The results of a drug and alcohol test conducted in
8 25 compliance with this section are presumed to be valid.
8 26 (2) An employer shall not be liable for monetary damages
8 27 if the employer's reliance on the false positive test result
8 28 was reasonable and in good faith.
8 29 12. CONFIDENTIALITY OF RESULTS. All communications
8 30 received by an employer relevant to employee or prospective
8 31 employee drug and alcohol test results, or otherwise received
8 32 through the employer's drug or alcohol testing program, are
8 33 confidential communications and shall not be used or received
8 34 in evidence, obtained in discovery, or disclosed in any public
8 35 or private proceeding, except in a proceeding related to an
9 1 action taken by an employer under this section or by an
9 2 employee under subsection 11.
9 3 Sec. 2. EFFECTIVE DATE. This Act takes effect on the
9 4 thirtieth day following enactment.
9 5 EXPLANATION
9 6 This bill makes changes to Iowa's law governing drug and
9 7 alcohol testing of employees and prospective employees by
9 8 repealing current law and replacing it with a new Code
9 9 section.
9 10 The bill provides that the drug and alcohol testing
9 11 requirements established by the bill apply only to private
9 12 sector employers and excludes the state and its political
9 13 subdivisions, as well as Native-American tribes and the
9 14 federal government, from the definition of employer.
9 15 The bill governs the procedures for conducting a drug and
9 16 alcohol test and provides for the collection of samples, the
9 17 scheduling of tests, and the conduct of the drug or alcohol
9 18 test. The bill provides that the results of drug testing
9 19 shall be confirmed by a laboratory certified by the United
9 20 States department of health and human services under federal
9 21 law, by the department's substance abuse and mental health
9 22 services administration, or by the Iowa department of public
9 23 health. The bill also provides that any positive drug or
9 24 alcohol test shall be confirmed by a second test. The bill
9 25 also requires an employer to establish a written policy,
9 26 available to employees and prospective employees, governing
9 27 drug and alcohol testing.
9 28 The bill allows unannounced drug and alcohol testing, and
9 29 testing for prospective employees, employees in safety-
9 30 sensitive positions, and employees both during and after drug
9 31 or alcohol rehabilitation. The bill also permits drug and
9 32 alcohol testing if there exists a reasonable suspicion that
9 33 the employee has engaged in illicit drug use or alcohol abuse,
9 34 has a substance abuse problem, or has violated the employer's
9 35 written substance abuse prevention policy. The bill allows
10 1 testing as provided by federal law and in response to work
10 2 accidents, thefts, and misconduct.
10 3 The bill also allows testing of samples collected for
10 4 deterrence and detection of possible illicit drug use or abuse
10 5 of alcohol or prescription drugs, the investigation of
10 6 possible individual employee impairment, the investigation of
10 7 workplace accidents, thefts, and misconduct, the maintenance
10 8 of employee and public safety, and the maintenance of
10 9 productivity or security of property or information of the
10 10 employer.
10 11 The bill provides that an employer, as a result of a
10 12 positive drug and alcohol test, can take several employment
10 13 actions. The employer can require the employee to enroll in
10 14 rehabilitation or counseling, suspend the employee with or
10 15 without pay, terminate the employee, refuse to hire a
10 16 prospective employee, or take any other adverse employment
10 17 action based on the employer's written policy, including any
10 18 collective bargaining agreement. The bill does not require
10 19 that the cost of any rehabilitation services be covered by an
10 20 employer's health plan.
10 21 The bill also makes provisions governing the liability of
10 22 an employer. The bill provides that an employer shall not be
10 23 liable for actions taken in good faith based on a positive
10 24 drug or alcohol test, for failing to test for drugs and
10 25 alcohol or for failing to detect any specific drug or other
10 26 controlled substance or medical condition, for terminating or
10 27 suspending a drug and alcohol testing program or policy, or
10 28 for failing to take action relating to a false negative test
10 29 result. The bill provides that an employer shall be liable
10 30 for actions taken based upon a false positive test only if the
10 31 employer knew or clearly should have known the test was
10 32 incorrect and ignored the correct result because of a reckless
10 33 disregard for the truth. In addition, the bill also provides
10 34 that an employer is not liable for an action based on libel,
10 35 slander, or defamation unless certain additional requirements
11 1 are met, generally requiring a finding that an incorrect
11 2 positive test result was disclosed negligently. The bill
11 3 establishes that a drug or alcohol test conducted in
11 4 accordance with the bill is presumed valid and that an
11 5 employer is not liable for monetary damages if the employer's
11 6 reliance on a false positive test was reasonable and in good
11 7 faith.
11 8 The bill also provides for the confidentiality of test
11 9 results.
11 10 The bill takes effect 30 days after enactment.
11 11 LSB 1414XL 77
11 12 ec/jj/8.1
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