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PAG LIN
1 1 Amend the amendment, S-3771, to House File 299, as
1 2 amended, passed, and reprinted by the House, as
1 3 follows:
1 4 #1. By striking page 1, line 1, through page 12,
1 5 line 4, and inserting the following:
1 6 "Amend House File 299, as amended, passed, and
1 7 reprinted by the House, as follows:
1 8 # . By striking everything after the enacting
1 9 clause and inserting the following:
1 10 "Section 1. Section 15A.1, subsection 3, Code
1 11 1997, is amended by adding the following new
1 12 paragraph:
1 13 NEW PARAGRAPH. c. The business has established a
1 14 written policy to conduct drug or alcohol testing
1 15 pursuant to section 730.5.
1 16 Sec. 2. Section 730.5, Code 1997, is amended by
1 17 striking the section and inserting in lieu thereof the
1 18 following:
1 19 730.5 DRUG-FREE WORKPLACES.
1 20 1. DEFINITIONS. As used in this section, unless
1 21 the context otherwise requires:
1 22 a. "Alcohol" means ethanol, isopropanol, or
1 23 methanol.
1 24 b. "Drug" means a substance considered unlawful
1 25 under the federal Controlled Substances Act, 21 U.S.C.
1 26 } 801 et seq.
1 27 c. "Employee" means a person in the service of an
1 28 employer.
1 29 d. "Employer" means a person which has one or more
1 30 employees employed in the same business, or in or
1 31 about the same establishment, in this state.
1 32 e. "Good faith" means reasonable reliance on
1 33 facts.
1 34 f. "Medical review officer" means a physician
1 35 licensed to practice medicine and surgery or
1 36 osteopathic medicine and surgery in any state of the
1 37 United States, responsible for receiving laboratory
1 38 results generated by an employer's drug testing
1 39 program, who is independent from the employer and is
1 40 agreed upon by representatives of the employer and the
1 41 employees, and who has knowledge of substance abuse
1 42 disorders and has appropriate medical training to
1 43 interpret and evaluate an individual's confirmed
1 44 positive test result together with the individual's
1 45 medical history and any other relevant biomedical
1 46 information.
1 47 g. "Prospective employee" means an individual who
1 48 has made application, whether written or oral, to an
1 49 employer to become an employee and who has received a
1 50 bona fide offer of employment from the employer.
2 1 h. "Reasonable suspicion drug or alcohol testing"
2 2 means drug or alcohol testing based upon evidence
2 3 which would cause a reasonable person to conclude that
2 4 an employee is using or has used alcohol or other
2 5 drugs and which use impairs the employee's performance
2 6 while on the job in violation of the employer's
2 7 written policy. For purposes of this paragraph,
2 8 evidence may include, but is not limited to, any of
2 9 the following:
2 10 (1) Observable phenomena while at work such as
2 11 direct observation of alcohol or other drug use or
2 12 abuse or of the physical symptoms or manifestations of
2 13 being impaired due to alcohol or other drug use.
2 14 (2) Abnormal conduct or erratic behavior while at
2 15 work or a significant deterioration in work
2 16 performance.
2 17 (3) A report of alcohol or other drug use while at
2 18 work provided by a reliable and credible source.
2 19 (4) Evidence that an individual has tampered with
2 20 the individual's own drug or alcohol test during the
2 21 individual's employment with the current employer.
2 22 (5) Evidence that an employee has caused an
2 23 accident while at work which resulted in a personal
2 24 injury which required medical treatment away from the
2 25 workplace or damage to property, including equipment,
2 26 in an amount reasonably estimated to exceed one
2 27 thousand dollars at the time of the accident.
2 28 (6) Evidence that an employee has possessed or
2 29 used drugs while working or while on the employer's
2 30 premises or while operating the employer's vehicle,
2 31 machinery, or equipment.
2 32 i. "Sample" means such sample of blood or urine
2 33 from the human body capable of revealing the presence
2 34 of alcohol or other drugs, or their metabolites.
2 35 2. TESTING AS CONDITION OF EMPLOYMENT –
2 36 REQUIREMENTS. To the extent provided in subsection 6,
2 37 an employer may test employees and prospective
2 38 employees for the presence of drugs or alcohol as a
2 39 condition of continued employment or hiring. An
2 40 employer shall adhere to the requirements of this
2 41 section concerning the conduct of such testing and the
2 42 use and disposition of the results of such testing.
2 43 3. COLLECTION OF SAMPLES. In conducting drug or
2 44 alcohol testing, an employer may require the
2 45 collection of samples from its employees and
2 46 prospective employees, and may require presentation of
2 47 reliable individual identification from the person
2 48 being tested to the person collecting the samples.
2 49 Collection of a sample shall be in conformance with
2 50 the requirements of this section. If the employer
3 1 requests that a urine sample be provided in conducting
3 2 drug or alcohol testing under this section, the
3 3 employer shall provide the employee or prospective
3 4 employee with an opportunity to have a blood sample
3 5 drawn instead of providing a urine sample.
3 6 4. SCHEDULING OF TESTS.
3 7 a. Drug or alcohol testing of employees conducted
3 8 by an employer shall normally occur during, or
3 9 immediately before or after, a regular work period.
3 10 The time required for such testing by an employer
3 11 shall be deemed work time for the purposes of
3 12 compensation and benefits for employees.
3 13 b. An employer shall pay all actual costs for drug
3 14 or alcohol testing of employees and prospective
3 15 employees required by the employer.
3 16 c. An employer shall provide transportation or pay
3 17 reasonable transportation costs to employees for all
3 18 drug or alcohol testing under this section.
3 19 5. TESTING PROCEDURES. All sample collection and
3 20 testing for drugs or alcohol under this section shall
3 21 be performed in accordance with the following
3 22 conditions:
3 23 a. The collection of samples shall be performed
3 24 under sanitary conditions and with regard for the
3 25 privacy of the individual from whom the specimen is
3 26 being obtained and in a manner reasonably calculated
3 27 to preclude contamination or substitution of the
3 28 specimen.
3 29 b. Sample collection for testing of current
3 30 employees shall be performed so that the specimen is
3 31 split into two components at the time of collection in
3 32 the presence of the individual from whom the sample or
3 33 specimen is collected. The second portion of the
3 34 specimen or sample shall be of sufficient quantity to
3 35 permit a second, independent confirmatory test as
3 36 provided in paragraph "i". If the specimen is urine,
3 37 the sample shall be split such that the primary sample
3 38 contains at least thirty milliliters and the secondary
3 39 sample contains at least fifteen milliliters. Both
3 40 portions of the sample shall be forwarded to the
3 41 laboratory conducting the initial confirmatory
3 42 testing. In addition to any requirements for storage
3 43 of the initial sample that may be imposed upon the
3 44 laboratory as a condition for certification or
3 45 approval, the laboratory shall store the second
3 46 portion of any sample until receipt of a confirmed
3 47 negative test result or for a period of at least
3 48 forty-five calendar days following the completion of
3 49 the initial confirmatory testing, if the first portion
3 50 yielded a confirmed positive test result.
4 1 c. Sample collections shall be documented, and the
4 2 procedure for documentation shall include the
4 3 following:
4 4 (1) Samples shall be labeled so as to reasonably
4 5 preclude the possibility of misidentification of the
4 6 individual tested in relation to the test result
4 7 provided, and samples shall be handled and tracked in
4 8 a manner such that control and accountability are
4 9 maintained from initial collection to each stage in
4 10 handling, testing, and storage, through final
4 11 disposition.
4 12 (2) An employee or prospective employee shall be
4 13 provided an opportunity to provide any information
4 14 which may be considered relevant to the test,
4 15 including identification of prescription or
4 16 nonprescription drugs currently or recently used, or
4 17 other relevant medical information. Information
4 18 provided by the employee or prospective employee shall
4 19 not be disclosed to the employer but shall be
4 20 delivered to the facility conducting confirmatory
4 21 testing. To assist an employee or prospective
4 22 employee in providing the information described in
4 23 this subparagraph, the employer shall provide an
4 24 employee or prospective employee with a list of the
4 25 drugs to be tested.
4 26 d. Sample collection, storage, and transportation
4 27 to the place of testing shall be performed so as to
4 28 reasonably preclude the possibility of sample
4 29 contamination, adulteration, or misidentification.
4 30 e. All drug testing, including both initial and
4 31 confirmatory testing, shall be conducted at a
4 32 laboratory certified by the United States department
4 33 of health and human services' substance abuse and
4 34 mental health services administration or approved
4 35 under rules adopted by the Iowa department of public
4 36 health.
4 37 f. Drug or alcohol testing shall include
4 38 confirmation of any initial positive test results.
4 39 For drug testing, confirmation shall be by use of a
4 40 different chemical process than was used in the
4 41 initial drug screen. The confirmatory drug test shall
4 42 be a chromatographic technique such as gas
4 43 chromatography or mass spectrometry, or another
4 44 comparably reliable analytical method.
4 45 g. A medical review officer shall, prior to the
4 46 results being reported to an employer and the employee
4 47 or prospective employee tested, review and interpret
4 48 any confirmed positive test results, including both
4 49 quantitative and qualitative test results, to ensure
4 50 that the chain of custody is complete and sufficient
5 1 on its face and that any information provided by the
5 2 individual pursuant to paragraph "c", subparagraph
5 3 (2), is considered.
5 4 h. In conducting drug or alcohol testing pursuant
5 5 to this section, the employer shall ensure that the
5 6 testing only measure, and the records concerning the
5 7 testing only show or make use of information
5 8 regarding, alcohol or drugs in the body.
5 9 i. If a positive drug or alcohol test for an
5 10 employee or prospective employee is confirmed by the
5 11 medical review officer, the medical review officer
5 12 shall notify the employee or prospective employee in
5 13 writing of the results of the test, the employee's or
5 14 prospective employee's right to request and obtain a
5 15 confirmatory test of the second sample collected
5 16 pursuant to paragraph "b" at a certified or approved
5 17 laboratory of the employee's or prospective employee's
5 18 choice, and the fee established by the employer's
5 19 written policy to be payable by the employee or
5 20 prospective employee to the medical review officer for
5 21 reimbursement of expenses concerning the test. The
5 22 fee charged an employee or prospective employee shall
5 23 be an amount, not in excess of one hundred dollars,
5 24 that represents the costs associated with conducting
5 25 the second confirmatory test, which shall be
5 26 consistent with the employer's cost for conducting the
5 27 initial confirmatory test on an employee's or
5 28 prospective employee's sample. If the employee or
5 29 prospective employee requests a second confirmatory
5 30 test, identifies a certified or approved laboratory to
5 31 conduct the test, and pays the medical review officer
5 32 the fee for the test within fifteen days from the date
5 33 the employee or prospective employee receives written
5 34 notice of the right to request a test, a second
5 35 confirmatory test shall be conducted at the laboratory
5 36 chosen by the employee or prospective employee. The
5 37 results of the second confirmatory test shall be
5 38 reported to the medical review officer who reviewed
5 39 the initial confirmatory test results and the medical
5 40 review officer shall review the results and issue a
5 41 report to the employer and the employee or prospective
5 42 employee tested that the results of the drug or
5 43 alcohol test were confirmed as positive if the results
5 44 of the second confirmatory test confirmed the initial
5 45 confirmatory test as to the presence of a specific
5 46 drug or alcohol. If the results of the second test do
5 47 not confirm the results of the initial confirmatory
5 48 test, the medical review officer shall report to the
5 49 employer that the result of the drug or alcohol test
5 50 is negative and not a confirmed positive test result
6 1 for purposes of this section.
6 2 j. A report of the results of a drug or alcohol
6 3 test issued to an employer and the individual tested
6 4 shall only indicate, as to an employee or prospective
6 5 employee, whether the test results were positive or
6 6 negative, pursuant to the review and interpretation of
6 7 a medical review officer as provided in this
6 8 subsection. An inconclusive test result shall be
6 9 reported as a negative test result. If the test
6 10 results are positive, the report shall only indicate
6 11 whether drugs or alcohol were present, which drugs
6 12 were present if applicable, information concerning the
6 13 amount of alcohol present, and a statement from the
6 14 medical review officer that any information provided
6 15 by the employee or prospective employee fails to
6 16 explain the results.
6 17 6. DRUG OR ALCOHOL TESTING. Employers may conduct
6 18 drug or alcohol testing as provided in this
6 19 subsection:
6 20 a. Employers may conduct drug or alcohol testing
6 21 of employees for up to two years after completion of
6 22 drug or alcohol rehabilitation.
6 23 b. Employers may conduct reasonable suspicion drug
6 24 or alcohol testing.
6 25 c. Employers may conduct drug or alcohol testing
6 26 of prospective employees.
6 27 d. Employers may conduct drug or alcohol testing
6 28 as required by federal law or regulation.
6 29 e. Employers may conduct drug or alcohol testing
6 30 in investigating accidents in the workplace which
6 31 result in a personal injury which requires medical
6 32 treatment away from the workplace or damage to
6 33 property, including equipment, in an amount reasonably
6 34 estimated to exceed one thousand dollars at the time
6 35 of the accident.
6 36 7. WRITTEN POLICY AND OTHER TESTING REQUIREMENTS.
6 37 a. Prior to conducting drug or alcohol testing
6 38 under this section, an employer shall establish,
6 39 following consultation with representatives of
6 40 employees, a written policy consistent with the
6 41 requirements of this section governing such testing.
6 42 The employer shall comply with this section and the
6 43 requirements of the written policy to conduct drug or
6 44 alcohol testing of employees and prospective employees
6 45 and shall provide the written policy to every employee
6 46 subject to testing and shall make the policy available
6 47 for review by employees and prospective employees.
6 48 b. Employers shall establish an awareness program
6 49 to inform employees of the dangers of drug and alcohol
6 50 use in the workplace and shall comply with the
7 1 following requirements in order to conduct drug or
7 2 alcohol testing under this section:
7 3 (1) If an employer has an employee assistance
7 4 program, the employer must inform the employee of the
7 5 benefits and services of the employee assistance
7 6 program. An employer shall post notice of the
7 7 employee assistance program in conspicuous places and
7 8 explore alternative routine and reinforcing means of
7 9 publicizing such services. In addition, the employer
7 10 must provide the employee with notice of the policies
7 11 and procedures regarding access to and utilization of
7 12 the program.
7 13 (2) If an employer does not have an employee
7 14 assistance program, the employer must maintain a
7 15 resource file of employee assistance services
7 16 providers, alcohol and other drug abuse programs
7 17 certified by the Iowa department of public health,
7 18 mental health providers, and other persons, entities,
7 19 or organizations available to assist employees with
7 20 personal or behavioral problems. The employer shall
7 21 provide all employees information about the existence
7 22 of the resource file and a summary of the information
7 23 contained within the resource file. The summary
7 24 should contain, but need not be limited to, all
7 25 information necessary to access the services listed in
7 26 the resource file. In addition, the employer shall
7 27 post in conspicuous places a listing of multiple
7 28 employee assistance providers in the area.
7 29 c. An employee or prospective employee whose drug
7 30 or alcohol test results are confirmed as positive in
7 31 accordance with this section shall not, by virtue of
7 32 those results alone, be considered as a person with a
7 33 disability for purposes of any state or local law or
7 34 regulation.
7 35 d. If the written policy provides for alcohol
7 36 testing, the employer shall establish in the written
7 37 policy a standard for alcohol concentration which
7 38 shall be deemed to violate the policy. The standard
7 39 for alcohol concentration shall not be less than .04,
7 40 expressed in terms of grams of alcohol per two hundred
7 41 ten liters of breath, or its equivalent.
7 42 e. In order to conduct drug or alcohol testing
7 43 under this section, an employer shall require all
7 44 supervisory personnel of the employer to attend a
7 45 minimum of two hours of initial training and to
7 46 attend, on an annual basis thereafter, a minimum of
7 47 one hour of subsequent training. The training shall
7 48 be based upon standards adopted by the Iowa department
7 49 of public health and shall include, but is not limited
7 50 to, information concerning the recognition of evidence
8 1 of employee alcohol and other drug abuse, the
8 2 documentation and corroboration of employee alcohol
8 3 and other drug abuse, and the referral of employees
8 4 who abuse alcohol or other drugs to the employee
8 5 assistance program or to the resource file of employee
8 6 assistance services providers. For purposes of this
8 7 paragraph, "supervisory personnel" means persons
8 8 having authority, in the interest of the employer, to
8 9 hire, transfer, suspend, lay off, recall, promote,
8 10 discharge, assign, reward, or discipline other
8 11 employees, or responsibly to direct them, or to adjust
8 12 their grievances, or effectively to recommend such
8 13 action, if in connection with the foregoing the
8 14 exercise of such authority is not of a merely routine
8 15 or clerical nature, but requires the use of
8 16 independent judgment.
8 17 f. If an employee is under eighteen years of age,
8 18 in order to conduct drug or alcohol testing under this
8 19 section, the employer shall, prior to conducting a
8 20 test, notify the employee's parent or grandparent that
8 21 a test shall be conducted and the basis for the test.
8 22 For purposes of this paragraph, "parent" means one
8 23 parent or a legal guardian or custodian of the
8 24 employee.
8 25 8. DISCIPLINARY PROCEDURES.
8 26 a. Upon receipt for an employee of the first
8 27 confirmed positive drug or alcohol test result, the
8 28 employer shall provide the employee with a substance
8 29 abuse evaluation, and treatment if recommended by the
8 30 evaluation, with costs apportioned as provided under
8 31 the employee benefit plan or at employer expense, if
8 32 an employee benefit plan is not in effect which
8 33 apportions costs. The employer shall take no
8 34 disciplinary action against the employee upon receipt
8 35 of the first confirmed positive drug or alcohol test
8 36 result if the employee undergoes a substance abuse
8 37 evaluation, and if the employee successfully completes
8 38 substance abuse treatment if treatment is recommended
8 39 by the evaluation. However, if an employee fails to
8 40 undergo substance abuse evaluation when required as a
8 41 result of a drug or alcohol test, or fails to
8 42 successfully complete substance abuse treatment when
8 43 recommended by an evaluation, the employee may be
8 44 disciplined as provided in paragraph "b". The
8 45 substance abuse evaluation and treatment provided by
8 46 the employer shall take place under a program approved
8 47 by the Iowa department of public health or accredited
8 48 by the joint commission on the accreditation of health
8 49 care organizations.
8 50 b. Upon receipt for an employee of a second
9 1 confirmed positive drug or alcohol test result or upon
9 2 receipt for a prospective employee of a confirmed
9 3 positive drug or alcohol test result, upon the failure
9 4 of an employee to comply with the requirements of
9 5 paragraph "a", or upon the refusal of an employee or
9 6 prospective employee to provide a testing sample, an
9 7 employer may use that test result or test refusal as a
9 8 valid basis for disciplinary or rehabilitative actions
9 9 consistent with the employer's written policy, which
9 10 may include, among other actions, the following:
9 11 (1) A requirement that the employee enroll in an
9 12 employer-provided or approved rehabilitation,
9 13 treatment, or counseling program, which may include
9 14 additional drug or alcohol testing, participation in
9 15 and successful completion of which may be a condition
9 16 of continued employment, and the costs of which may or
9 17 may not be covered by the employer's health plan or
9 18 policies.
9 19 (2) Suspension of the employee, with or without
9 20 pay, for a designated period of time.
9 21 (3) Termination of employment.
9 22 (4) Refusal to hire a prospective employee.
9 23 (5) Other adverse employment action in conformance
9 24 with the employer's written policy and procedures,
9 25 including any relevant collective bargaining agreement
9 26 provisions.
9 27 9. EMPLOYER IMMUNITY. A cause of action shall not
9 28 arise against an employer who, in good faith, has
9 29 established a written policy in accordance with this
9 30 section and has complied with the requirements of the
9 31 written policy and this section for testing or taking
9 32 action based on the results of a confirmed positive
9 33 drug or alcohol test result, indicating the presence
9 34 of drugs or alcohol, or the refusal of an employee or
9 35 prospective employee to submit to a drug or alcohol
9 36 test.
9 37 10. RELEASE OF INFORMATION – CONFIDENTIALITY –
9 38 EXCEPTIONS.
9 39 a. Except as provided in paragraph "b", all
9 40 communications received by an employer relevant to
9 41 employee or prospective employee drug or alcohol test
9 42 results, or otherwise received through the employer's
9 43 drug or alcohol testing program, are confidential
9 44 communications and shall not be used or received in
9 45 evidence, obtained in discovery, or disclosed in any
9 46 public or private proceeding, except as provided by
9 47 this section or in a proceeding related to an action
9 48 taken by an employer under this section or by an
9 49 employee under this section.
9 50 b. An employee, or a prospective employee, who is
10 1 the subject of a drug or alcohol test conducted under
10 2 this section pursuant to an employer's written policy
10 3 and for whom a confirmed positive test result is
10 4 reported shall receive, at the same time the report is
10 5 issued to the employer, a copy of the report issued to
10 6 the employer and shall receive any records relating to
10 7 the employee's drug or alcohol test, including records
10 8 of the laboratory where the testing was conducted and
10 9 any records relating to the results of any relevant
10 10 review by a medical review officer.
10 11 11. CIVIL REMEDIES. This section may be enforced
10 12 through a civil action.
10 13 a. A person who violates this section or who aids
10 14 in the violation of this section, is liable to an
10 15 aggrieved employee or prospective employee for
10 16 affirmative relief including reinstatement or hiring,
10 17 with or without back pay, or any other equitable
10 18 relief as the court deems appropriate including
10 19 attorney fees and court costs.
10 20 b. When a person commits, is committing, or
10 21 proposes to commit, an act in violation of this
10 22 section, an injunction may be granted through an
10 23 action in district court to prohibit the person from
10 24 continuing such acts. The action for injunctive
10 25 relief may be brought by an aggrieved employee or
10 26 prospective employee, the county attorney, or the
10 27 attorney general.
10 28 In an action brought under this subsection alleging
10 29 that an employer has required or requested a drug or
10 30 alcohol test in violation of this section, the
10 31 employer has the burden of proving that the
10 32 requirements of this section were met.
10 33 12. OFFENSES. Samples collected, information
10 34 provided by an employee or prospective employee
10 35 pursuant to subsection 5, paragraph "c", subparagraph
10 36 (2), and the results of drug or alcohol testing shall
10 37 be used solely for the purpose of conducting drug or
10 38 alcohol testing pursuant to this section and shall not
10 39 be sold, transferred, or disseminated, to any person
10 40 for any purpose not expressly authorized by this
10 41 section. A person who violates this subsection
10 42 commits a simple misdemeanor and, notwithstanding
10 43 section 903.1, if a monetary fine is imposed, the fine
10 44 shall be one hundred dollars. Each violation of this
10 45 subsection constitutes a separate offense.
10 46 13. REPORTS.
10 47 a. An employer who conducts a drug test pursuant
10 48 to this section shall, for each fiscal year beginning
10 49 on or after July 1, 1999, file an annual report with
10 50 the division of labor services of the department of
11 1 workforce development, on forms provided by the
11 2 division, documenting the number of accidents,
11 3 including the number of personal injuries and the
11 4 dollar loss for property damage arising out of the
11 5 accidents, caused by the use of drugs or alcohol by
11 6 employees and documenting separately for each category
11 7 of testing described in subsection 6 the following
11 8 information:
11 9 (1) The number of drug or alcohol tests conducted
11 10 in each category.
11 11 (2) The results of drug or alcohol tests conducted
11 12 in each category.
11 13 b. The division of labor services of the
11 14 department of workforce development shall compile the
11 15 information submitted by employers pursuant to this
11 16 subsection and shall submit an annual report to the
11 17 general assembly on this information.
11 18 Sec. 3. EFFECTIVE DATE. This Act takes effect on
11 19 January 1, 1999.""
11 20
11 21
11 22
11 23 TOM VILSACK
11 24
11 25
11 26
11 27 MICHAEL E. GRONSTAL
11 28 HF 299.343 77
11 29 ec/cf/28
Text: S05000 Text: S05002 Text: S05000 - S05099 Text: S Index Bills and Amendments: General Index Bill History: General Index
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