Text: S05034 Text: S05036 Text: S05000 - S05099 Text: S 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.
2 25 (6) Evidence that an employee has manufactured,
2 26 sold, distributed, solicited, possessed, used, or
2 27 transferred drugs while working or while on the
2 28 employer's premises or while operating the employer's
2 29 vehicle, machinery, or equipment.
2 30 i. "Safety-sensitive position" means a job wherein
2 31 an accident could cause loss of human life, serious
2 32 bodily injury, or significant property or
2 33 environmental damage, including a job with duties that
2 34 include immediate supervision of a person in a job
2 35 that meets the requirement of this paragraph.
2 36 j. "Sample" means such sample from the human body
2 37 capable of revealing the presence of alcohol or other
2 38 drugs, or their metabolites.
2 39 k. "Unannounced drug or alcohol testing" means
2 40 testing for the purposes of detecting drugs or alcohol
2 41 which is conducted on a periodic basis, without
2 42 advance notice of the test, and without individualized
2 43 suspicion. The selection of employees to be tested
2 44 shall be made by a computer-based random number
2 45 generator that is matched with employees' social
2 46 security numbers, payroll identification numbers, or
2 47 other comparable identifying numbers in which each
2 48 member of the employee population subject to testing
2 49 has an equal chance of selection for initial testing.
2 50 The random selection process shall be conducted
3 1 through a computer program that records each selection
3 2 attempt by date, time, and employee number.
3 3 2. APPLICABILITY. This section does not apply to
3 4 drug or alcohol tests conducted on employees required
3 5 to be tested pursuant to federal statutes, federal
3 6 regulations, or orders issued pursuant to federal law.
3 7 In addition, an employer, through its written policy,
3 8 may exclude from the pools of employees subject to
3 9 unannounced drug or alcohol testing pursuant to
3 10 subsection 8, paragraph "a", employee populations
3 11 required to be tested as described in this subsection.
3 12 3. TESTING OPTIONAL. This section does not
3 13 require or create a legal duty on an employer to
3 14 conduct drug or alcohol testing and the requirements
3 15 of this section shall not be construed to encourage,
3 16 discourage, restrict, limit, prohibit, or require such
3 17 testing. A cause of action shall not arise in favor
3 18 of any person against an employer or agent of an
3 19 employer based on the failure of the employer to
3 20 establish a program or policy on substance abuse
3 21 prevention or to implement any component of testing as
3 22 permitted by this section.
3 23 4. TESTING AS CONDITION OF EMPLOYMENT –
3 24 REQUIREMENTS. To the extent provided in subsection 8,
3 25 an employer may test employees and prospective
3 26 employees for the presence of drugs or alcohol as a
3 27 condition of continued employment or hiring. An
3 28 employer shall adhere to the requirements of this
3 29 section concerning the conduct of such testing and the
3 30 use and disposition of the results of such testing.
3 31 5. COLLECTION OF SAMPLES. In conducting drug or
3 32 alcohol testing, an employer may require the
3 33 collection of samples from its employees and
3 34 prospective employees, and may require presentation of
3 35 reliable individual identification from the person
3 36 being tested to the person collecting the samples.
3 37 Collection of a sample shall be in conformance with
3 38 the requirements of this section. The employer may
3 39 designate the type of sample to be used for this
3 40 testing.
3 41 6. SCHEDULING OF TESTS.
3 42 a. Drug or alcohol testing of employees conducted
3 43 by an employer shall normally occur during, or
3 44 immediately before or after, a regular work period.
3 45 The time required for such testing by an employer
3 46 shall be deemed work time for the purposes of
3 47 compensation and benefits for employees.
3 48 b. An employer shall pay all actual costs for drug
3 49 or alcohol testing of employees and prospective
3 50 employees required by the employer.
4 1 c. An employer shall provide transportation or pay
4 2 reasonable transportation costs to employees if drug
4 3 or alcohol sample collection is conducted at a
4 4 location other than the employee's normal work site.
4 5 7. TESTING PROCEDURES. All sample collection and
4 6 testing for drugs or alcohol under this section shall
4 7 be performed in accordance with the following
4 8 conditions:
4 9 a. The collection of samples shall be performed
4 10 under sanitary conditions and with regard for the
4 11 privacy of the individual from whom the specimen is
4 12 being obtained and in a manner reasonably calculated
4 13 to preclude contamination or substitution of the
4 14 specimen.
4 15 b. Sample collection for testing of current
4 16 employees shall be performed so that the specimen is
4 17 split into two components at the time of collection in
4 18 the presence of the individual from whom the sample or
4 19 specimen is collected. The second portion of the
4 20 specimen or sample shall be of sufficient quantity to
4 21 permit a second, independent confirmatory test as
4 22 provided in paragraph "i". If the specimen is urine,
4 23 the sample shall be split such that the primary sample
4 24 contains at least thirty milliliters and the secondary
4 25 sample contains at least fifteen milliliters. Both
4 26 portions of the sample shall be forwarded to the
4 27 laboratory conducting the initial confirmatory
4 28 testing. In addition to any requirements for storage
4 29 of the initial sample that may be imposed upon the
4 30 laboratory as a condition for certification or
4 31 approval, the laboratory shall store the second
4 32 portion of any sample until receipt of a confirmed
4 33 negative test result or for a period of at least
4 34 forty-five calendar days following the completion of
4 35 the initial confirmatory testing, if the first portion
4 36 yielded a confirmed positive test result.
4 37 c. Sample collections shall be documented, and the
4 38 procedure for documentation shall include the
4 39 following:
4 40 (1) Samples shall be labeled so as to reasonably
4 41 preclude the possibility of misidentification of the
4 42 person tested in relation to the test result provided,
4 43 and samples shall be handled and tracked in a manner
4 44 such that control and accountability are maintained
4 45 from initial collection to each stage in handling,
4 46 testing, and storage, through final disposition.
4 47 (2) An employee or prospective employee shall be
4 48 provided an opportunity to provide any information
4 49 which may be considered relevant to the test,
4 50 including identification of prescription or
5 1 nonprescription drugs currently or recently used, or
5 2 other relevant medical information. To assist an
5 3 employee or prospective employee in providing the
5 4 information described in this subparagraph, the
5 5 employer shall provide an employee or prospective
5 6 employee with a list of the drugs to be tested.
5 7 d. Sample collection, storage, and transportation
5 8 to the place of testing shall be performed so as to
5 9 reasonably preclude the possibility of sample
5 10 contamination, adulteration, or misidentification.
5 11 e. All confirmatory drug testing shall be
5 12 conducted at a laboratory certified by the United
5 13 States department of health and human services'
5 14 substance abuse and mental health services
5 15 administration or approved under rules adopted by the
5 16 Iowa department of public health.
5 17 f. Drug or alcohol testing shall include
5 18 confirmation of any initial positive test results.
5 19 For drug or alcohol testing, confirmation shall be by
5 20 use of a different chemical process than was used in
5 21 the initial screen for drugs or alcohol. The
5 22 confirmatory drug or alcohol test shall be a
5 23 chromatographic technique such as gas chromatography
5 24 or mass spectrometry, or another comparably reliable
5 25 analytical method. An employer may take adverse
5 26 employment action, including refusal to hire a
5 27 prospective employee, based on a confirmed positive
5 28 drug or alcohol test.
5 29 g. A medical review officer shall, prior to the
5 30 results being reported to an employer, review and
5 31 interpret any confirmed positive test results,
5 32 including both quantitative and qualitative test
5 33 results, to ensure that the chain of custody is
5 34 complete and sufficient on its face and that any
5 35 information provided by the individual pursuant to
5 36 paragraph "c", subparagraph (2), is considered.
5 37 h. In conducting drug or alcohol testing pursuant
5 38 to this section, the employer shall ensure to the
5 39 extent feasible that the testing only measure, and the
5 40 records concerning the testing only show or make use
5 41 of information regarding, alcohol or drugs in the
5 42 body.
5 43 i. (1) If a confirmed positive drug or alcohol
5 44 test for a current employee is reported to the
5 45 employer by the medical review officer, the employer
5 46 shall notify the employee in writing by certified
5 47 mail, return receipt requested, of the results of the
5 48 test, the employee's right to request and obtain a
5 49 confirmatory test of the second sample collected
5 50 pursuant to paragraph "b" at an approved laboratory of
6 1 the employee's choice, and the fee payable by the
6 2 employee to the employer for reimbursement of expenses
6 3 concerning the test. The fee charged an employee
6 4 shall be an amount that represents the costs
6 5 associated with conducting the second confirmatory
6 6 test, which shall be consistent with the employer's
6 7 cost for conducting the initial confirmatory test on
6 8 an employee's sample. If the employee, in person or
6 9 by certified mail, return receipt requested, requests
6 10 a second confirmatory test, identifies an approved
6 11 laboratory to conduct the test, and pays the employer
6 12 the fee for the test within seven days from the date
6 13 the employer mails by certified mail, return receipt
6 14 requested, the written notice to the employee of the
6 15 employee's right to request a test, a second
6 16 confirmatory test shall be conducted at the laboratory
6 17 chosen by the employee. The results of the second
6 18 confirmatory test shall be reported to the medical
6 19 review officer who reviewed the initial confirmatory
6 20 test results and the medical review officer shall
6 21 review the results and issue a report to the employer
6 22 on whether the results of the second confirmatory test
6 23 confirmed the initial confirmatory test as to the
6 24 presence of a specific drug or alcohol. If the
6 25 results of the second test do not confirm the results
6 26 of the initial confirmatory test, the employer shall
6 27 reimburse the employee for the fee paid by the
6 28 employee for the second test and the initial
6 29 confirmatory test shall not be considered a confirmed
6 30 positive drug or alcohol test for purposes of taking
6 31 disciplinary action pursuant to subsection 10.
6 32 (2) If a confirmed positive drug or alcohol test
6 33 for a prospective employee is reported to the employer
6 34 by the medical review officer, the employer shall
6 35 notify the prospective employee in writing of the
6 36 results of the test, of the name and address of the
6 37 medical review officer who made the report, and of the
6 38 prospective employee's right to request records under
6 39 subsection 13.
6 40 j. A laboratory conducting testing under this
6 41 section shall dispose of all samples for which a
6 42 negative test result was reported to an employer
6 43 within five working days after issuance of the
6 44 negative test result report.
6 45 k. Except as necessary to conduct drug or alcohol
6 46 testing pursuant to this section, a laboratory or
6 47 other medical facility shall only report to an
6 48 employer or outside entity information relating to the
6 49 results of a drug or alcohol test conducted pursuant
6 50 to this section concerning the determination of
7 1 whether the tested individual has engaged in conduct
7 2 prohibited by the employer's written policy with
7 3 regard to alcohol or drug use.
7 4 l. Notwithstanding the provisions of this
7 5 subsection, an employer may rely and take action upon
7 6 the results of any blood test for drugs or alcohol
7 7 made on any employee involved in an accident at work
7 8 if the test is administered by or at the direction of
7 9 the person providing treatment or care to the employee
7 10 without request or suggestion by the employer that a
7 11 test be conducted, and the employer has lawfully
7 12 obtained the results of the test. For purposes of
7 13 this paragraph, an employer shall not be deemed to
7 14 have requested or required a test in conjunction with
7 15 the provision of medical treatment following a
7 16 workplace accident by providing information concerning
7 17 the circumstance of the accident.
7 18 8. DRUG OR ALCOHOL TESTING. Employers may conduct
7 19 drug or alcohol testing as provided in this
7 20 subsection:
7 21 a. Employers may conduct unannounced drug or
7 22 alcohol testing of employees who are selected from any
7 23 of the following pools of employees:
7 24 (1) The entire employee population at a particular
7 25 work site of the employer except for employees who are
7 26 not scheduled to be at work at the time the testing is
7 27 conducted because of the status of the employees or
7 28 who have been excused from work pursuant to the
7 29 employer's work policy prior to the time the testing
7 30 is announced to employees.
7 31 (2) The entire full-time active employee
7 32 population at a particular work site.
7 33 (3) All employees at a particular work site who
7 34 are in a pool of employees in a safety-sensitive
7 35 position and who are scheduled to be at work at the
7 36 time testing is conducted, other than employees who
7 37 are not scheduled to be at work at the time the
7 38 testing is to be conducted or who have been excused
7 39 from work pursuant to the employer's work policy prior
7 40 to the time the testing is announced to employees.
7 41 b. Employers may conduct drug or alcohol testing
7 42 of employees during, and after completion of, drug or
7 43 alcohol rehabilitation.
7 44 c. Employers may conduct reasonable suspicion drug
7 45 or alcohol testing.
7 46 d. Employers may conduct drug or alcohol testing
7 47 of prospective employees.
7 48 e. Employers may conduct drug or alcohol testing
7 49 as required by federal law or regulation.
7 50 f. Employers may conduct drug or alcohol testing
8 1 in investigating accidents in the workplace.
8 2 9. WRITTEN POLICY AND OTHER TESTING REQUIREMENTS.
8 3 a. Drug or alcohol testing or retesting by an
8 4 employer shall be carried out within the terms of a
8 5 written policy which has been provided to every
8 6 employee subject to testing, and is available for
8 7 review by employees and prospective employees.
8 8 b. Employers shall establish an awareness program
8 9 to inform employees of the dangers of drug and alcohol
8 10 use in the workplace and comply with the following
8 11 requirements in order to conduct drug or alcohol
8 12 testing under this section:
8 13 (1) If an employer has an employee assistance
8 14 program, the employer must inform the employee of the
8 15 benefits and services of the employee assistance
8 16 program. An employer shall post notice of the
8 17 employee assistance program in conspicuous places and
8 18 explore alternative routine and reinforcing means of
8 19 publicizing such services. In addition, the employer
8 20 must provide the employee with notice of the policies
8 21 and procedures regarding access to and utilization of
8 22 the program.
8 23 (2) If an employer does not have an employee
8 24 assistance program, the employer must maintain a
8 25 resource file of employee assistance services
8 26 providers, alcohol and other drug abuse programs
8 27 certified by the Iowa department of public health,
8 28 mental health providers, and other persons, entities,
8 29 or organizations available to assist employees with
8 30 personal or behavioral problems. The employer shall
8 31 provide all employees information about the existence
8 32 of the resource file and a summary of the information
8 33 contained within the resource file. The summary
8 34 should contain, but need not be limited to, all
8 35 information necessary to access the services listed in
8 36 the resource file. In addition, the employer shall
8 37 post in conspicuous places a listing of multiple
8 38 employee assistance providers in the area.
8 39 c. An employee or prospective employee whose drug
8 40 or alcohol test results are confirmed as positive in
8 41 accordance with this section shall not, by virtue of
8 42 those results alone, be considered as a person with a
8 43 disability for purposes of any state or local law or
8 44 regulation.
8 45 d. If the written policy provides for alcohol
8 46 testing, the employer shall establish in the written
8 47 policy a standard for alcohol concentration which
8 48 shall be deemed to violate the policy. The standard
8 49 for alcohol concentration shall not be less than .02,
8 50 expressed in terms of grams of alcohol per two hundred
9 1 ten liters of breath, or its equivalent.
9 2 e. An employee of an employer who is designated by
9 3 the employer as being in a safety-sensitive position
9 4 shall be placed in only one pool of safety-sensitive
9 5 employees subject to drug or alcohol testing pursuant
9 6 to subsection 8, paragraph "a", subparagraph (3). An
9 7 employer may have more than one pool of safety-
9 8 sensitive employees subject to drug or alcohol testing
9 9 pursuant to subsection 8, paragraph "a", subparagraph
9 10 (3), but shall not include an employee in more than
9 11 one safety-sensitive pool.
9 12 f. Upon receipt of a confirmed positive alcohol
9 13 test or a confirmed positive drug test relating to the
9 14 abuse of lawfully prescribed drugs currently or
9 15 recently used by an employee, and if the employer has
9 16 at least fifty employees, and if the employee has been
9 17 employed by the employer on a full-time basis for
9 18 twelve consecutive months and rehabilitation is agreed
9 19 upon by both the employer and the employee, and if the
9 20 employee has not previously undergone rehabilitation
9 21 with the same employer pursuant to this section, the
9 22 written policy shall provide for the apportionment of
9 23 the costs of rehabilitation as provided by this
9 24 paragraph.
9 25 (1) If the employer has an employee benefit plan,
9 26 the costs of rehabilitation shall be apportioned as
9 27 provided under the employee benefit plan.
9 28 (2) If no employee benefit plan exists and the
9 29 employee has coverage for any portion of the costs of
9 30 rehabilitation under any health care plan of the
9 31 employee, the costs of rehabilitation shall be
9 32 apportioned as provided by the health care plan with
9 33 any costs not covered by the plan apportioned equally
9 34 between the employee and the employer. However, the
9 35 employer shall not be required to pay more than two
9 36 thousand dollars toward the costs not covered by the
9 37 employee's health care plan.
9 38 (3) If no employee benefit plan exists and the
9 39 employee does not have coverage for any portion of the
9 40 costs of rehabilitation under any health care plan of
9 41 the employee, the costs of rehabilitation shall be
9 42 apportioned equally between the employee and the
9 43 employer. However, the employer shall not be required
9 44 to pay more than two thousand dollars towards the cost
9 45 of rehabilitation under this subparagraph.
9 46 g. In order to conduct drug or alcohol testing
9 47 under this section, an employer shall require
9 48 supervisory personnel of the employer involved with
9 49 drug or alcohol testing under this section to attend a
9 50 minimum of two hours of initial training and to
10 1 attend, on an annual basis thereafter, a minimum of
10 2 one hour of subsequent training. The training shall
10 3 include, but is not limited to, information concerning
10 4 the recognition of evidence of employee alcohol and
10 5 other drug abuse, the documentation and corroboration
10 6 of employee alcohol and other drug abuse, and the
10 7 referral of employees who abuse alcohol or other drugs
10 8 to the employee assistance program or to the resource
10 9 file of employee assistance services providers.
10 10 10. DISCIPLINARY PROCEDURES.
10 11 a. Upon receipt of a confirmed positive drug or
10 12 alcohol test result which indicates a violation of the
10 13 employer's written policy, or upon the refusal of an
10 14 employee or prospective employee to provide a testing
10 15 sample, an employer may use that test result or test
10 16 refusal as a valid basis for disciplinary or
10 17 rehabilitative actions consistent with the employer's
10 18 written policy, which may include, among other
10 19 actions, the following:
10 20 (1) A requirement that the employee enroll in an
10 21 employer-provided or approved rehabilitation,
10 22 treatment, or counseling program, which may include
10 23 additional drug or alcohol testing, participation in
10 24 and successful completion of which may be a condition
10 25 of continued employment, and the costs of which may or
10 26 may not be covered by the employer's health plan or
10 27 policies.
10 28 (2) Suspension of the employee, with or without
10 29 pay, for a designated period of time.
10 30 (3) Termination of employment.
10 31 (4) Refusal to hire a prospective employee.
10 32 (5) Other adverse employment action in conformance
10 33 with the employer's written policy and procedures,
10 34 including any relevant collective bargaining agreement
10 35 provisions.
10 36 b. Following a drug or alcohol test, but prior to
10 37 receipt of the final results of the drug or alcohol
10 38 test, an employer may suspend a current employee, with
10 39 or without pay, pending the outcome of the test. An
10 40 employee who has been suspended shall be reinstated by
10 41 the employer, with back pay, and interest on such
10 42 amount at eighteen percent per annum compounded
10 43 annually, if applicable, if the result of the test is
10 44 not a confirmed positive drug or alcohol test which
10 45 indicates a violation of the employer's written
10 46 policy.
10 47 11. EMPLOYER IMMUNITY. A cause of action shall
10 48 not arise against an employer who has established a
10 49 policy and initiated a testing program in accordance
10 50 with the testing and policy safeguards provided for
11 1 under this section, for any of the following:
11 2 a. Testing or taking action based on the results
11 3 of a positive drug or alcohol test result, indicating
11 4 the presence of drugs or alcohol, in good faith, or on
11 5 the refusal of an employee or prospective employee to
11 6 submit to a drug or alcohol test.
11 7 b. Failure to test for drugs or alcohol, or
11 8 failure to test for a specific drug or controlled
11 9 substance.
11 10 c. Failure to test for, or if tested for, failure
11 11 to detect, any specific drug or other controlled
11 12 substance.
11 13 d. Termination or suspension of any substance
11 14 abuse prevention or testing program or policy.
11 15 e. Any action taken related to a false negative
11 16 drug or alcohol test result.
11 17 12. EMPLOYER LIABILITY – FALSE POSITIVE TEST
11 18 RESULTS.
11 19 a. Except as otherwise provided in paragraph "b",
11 20 a cause of action shall not arise against an employer
11 21 who has established a program of drug or alcohol
11 22 testing in accordance with this section, unless all of
11 23 the following conditions exist:
11 24 (1) The employer's action was based on a false
11 25 positive test result.
11 26 (2) The employer knew or clearly should have known
11 27 that the test result was in error and ignored the
11 28 correct test result because of reckless, malicious, or
11 29 negligent disregard for the truth, or the willful
11 30 intent to deceive or to be deceived.
11 31 b. A cause of action for defamation, libel,
11 32 slander, or damage to reputation shall not arise
11 33 against an employer establishing a program of drug or
11 34 alcohol testing in accordance with this section unless
11 35 all of the following apply:
11 36 (1) The employer discloses the test results to a
11 37 person other than the employer, an authorized
11 38 employee, agent, or representative of the employer,
11 39 the tested employee or the tested applicant for
11 40 employment, an authorized substance abuse treatment
11 41 program or employee assistance program, or an
11 42 authorized agent or representative of the tested
11 43 employee or applicant.
11 44 (2) The test results disclosed incorrectly
11 45 indicate the presence of alcohol or drugs.
11 46 (3) The employer negligently discloses the
11 47 results.
11 48 c. In any cause of action based upon a false
11 49 positive test result, all of the following conditions
11 50 apply:
12 1 (1) The results of a drug or alcohol test
12 2 conducted in compliance with this section are presumed
12 3 to be valid.
12 4 (2) An employer shall not be liable for monetary
12 5 damages if the employer's reliance on the false
12 6 positive test result was reasonable and in good faith.
12 7 13. CONFIDENTIALITY OF RESULTS – EXCEPTION.
12 8 a. All communications received by an employer
12 9 relevant to employee or prospective employee drug or
12 10 alcohol test results, or otherwise received through
12 11 the employer's drug or alcohol testing program, are
12 12 confidential communications and shall not be used or
12 13 received in evidence, obtained in discovery, or
12 14 disclosed in any public or private proceeding, except
12 15 as otherwise provided or authorized by this section.
12 16 b. An employee, or a prospective employee, who is
12 17 the subject of a drug or alcohol test conducted under
12 18 this section pursuant to an employer's written policy
12 19 and for whom a confirmed positive test result is
12 20 reported shall, upon written request, have access to
12 21 any records relating to the employee's drug or alcohol
12 22 test, including records of the laboratory where the
12 23 testing was conducted and any records relating to the
12 24 results of any relevant certification or review by a
12 25 medical review officer. However, a prospective
12 26 employee shall be entitled to records under this
12 27 paragraph only if the prospective employee requests
12 28 the records within fifteen calendar days from the date
12 29 the employer provided the prospective employee written
12 30 notice of the results of a drug or alcohol test as
12 31 provided in subsection 7, paragraph "i", subparagraph
12 32 (2).
12 33 c. Except as provided by this section and as
12 34 necessary to conduct drug or alcohol testing under
12 35 this section and to file a report pursuant to
12 36 subsection 16, a laboratory and a medical review
12 37 officer conducting drug or alcohol testing under this
12 38 section shall not use or disclose to any person any
12 39 personally identifiable information regarding such
12 40 testing, including the names of individuals tested,
12 41 even if unaccompanied by the results of the test.
12 42 d. An employer may use and disclose information
12 43 concerning the results of a drug or alcohol test
12 44 conducted pursuant to this section under any of the
12 45 following circumstances:
12 46 (1) In an arbitration proceeding pursuant to a
12 47 collective bargaining agreement, or an administrative
12 48 agency proceeding or judicial proceeding under
12 49 workers' compensation laws or unemployment
12 50 compensation laws or under common or statutory laws
13 1 where action taken by the employer based on the test
13 2 is relevant or is challenged.
13 3 (2) To any federal agency or other unit of the
13 4 federal government as required under federal law,
13 5 regulation or order, or in accordance with compliance
13 6 requirements of a federal government contract.
13 7 (3) To any agency of this state authorized to
13 8 license individuals if the employee tested is licensed
13 9 by that agency and the rules of that agency require
13 10 such disclosure.
13 11 (4) To a union representing the employee if such
13 12 disclosure would be required by federal labor laws.
13 13 (5) To a substance abuse evaluation or treatment
13 14 facility or professional for the purpose of evaluation
13 15 or treatment of the employee.
13 16 However, positive test results from an employer
13 17 drug or alcohol testing program shall not be used as
13 18 evidence in any criminal action against the employee
13 19 or prospective employee tested.
13 20 14. CIVIL PENALTIES. Any laboratory or other
13 21 medical facility which discloses information in
13 22 violation of the provisions of subsection 7, paragraph
13 23 "k", or any employer who, through the selection
13 24 process described in subsection 1, paragraph "k",
13 25 improperly targets or exempts employees subject to
13 26 unannounced drug or alcohol testing, shall be subject
13 27 to a civil penalty of one thousand dollars for each
13 28 violation. The attorney general or the attorney
13 29 general's designee may maintain a civil action to
13 30 enforce this subsection. Any civil penalty recovered
13 31 shall be deposited in the general fund of the state.
13 32 15. CIVIL REMEDIES. This section may be enforced
13 33 through a civil action.
13 34 a. A person who violates this section or who aids
13 35 in the violation of this section, is liable to an
13 36 aggrieved employee or prospective employee for
13 37 affirmative relief including reinstatement or hiring,
13 38 with or without back pay, or any other equitable
13 39 relief as the court deems appropriate including
13 40 attorney fees and court costs.
13 41 b. When a person commits, is committing, or
13 42 proposes to commit, an act in violation of this
13 43 section, an injunction may be granted through an
13 44 action in district court to prohibit the person from
13 45 continuing such acts. The action for injunctive
13 46 relief may be brought by an aggrieved employee or
13 47 prospective employee, the county attorney, or the
13 48 attorney general.
13 49 In an action brought under this subsection alleging
13 50 that an employer has required or requested a drug or
14 1 alcohol test in violation of this section, the
14 2 employer has the burden of proving that the
14 3 requirements of this section were met.
14 4 16. REPORTS. A laboratory doing business for an
14 5 employer who conducts drug or alcohol tests pursuant
14 6 to this section shall file an annual report with the
14 7 Iowa department of public health by March 1 of each
14 8 year concerning the number of drug tests conducted on
14 9 employees who work in this state pursuant to this
14 10 section, the number of positive and negative results
14 11 of the tests, during the previous calendar year. In
14 12 addition, the laboratory shall include in its annual
14 13 report the specific basis for each test as authorized
14 14 in subsection 8, the type of drug or drugs which were
14 15 found in the positive tests, and all significant
14 16 available demographic factors relating to the positive
14 17 test pool.
14 18 Sec. 2. EFFECTIVE DATE. This Act, being deemed of
14 19 immediate importance, takes effect upon enactment."
14 20
14 21
14 22
14 23 STEVE KING
14 24 HF 299.353 77
14 25 ec/cf/28
Text: S05034 Text: S05036 Text: S05000 - S05099 Text: S Index Bills and Amendments: General Index Bill History: General Index
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