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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, or employment agency, which has one or
1 16 more full-time employees employed in the same business, or in
1 17 or about the same establishment, under any contract of hire,
1 18 express or implied, oral or written, in this state.
1 19 "Employer" does not include the state, a political subdivision
1 20 of the state, including a city, county, or school district,
1 21 the United States, the United States postal service, or a
1 22 Native American tribe.
1 23 e. "Good faith" means reasonable reliance on facts, or
1 24 that which is held out to be factual, without the intent to be
1 25 deceived, and without reckless, malicious, or negligent
1 26 disregard for the truth.
1 27 f. "Medical review officer" means a licensed physician,
1 28 osteopathic physician, chiropractor, nurse practitioner, or
1 29 physician's assistant authorized to practice in any state of
1 30 the United States, who is responsible for receiving laboratory
1 31 results generated by an employer's drug testing program, and
1 32 who has knowledge of substance abuse disorders and has
1 33 appropriate medical training to interpret and evaluate an
1 34 individual's confirmed positive test result together with the
1 35 individual's medical history and any other relevant biomedical
2 1 information.
2 2 g. "Prospective employee" means a person who has made
2 3 application, whether written or oral, to an employer to become
2 4 an employee.
2 5 h. "Reasonable suspicion drug or alcohol testing" means
2 6 drug or alcohol testing based upon evidence that an employee
2 7 is using or has used alcohol or other drugs in violation of
2 8 the employer's written policy drawn from specific objective
2 9 and articulable facts and reasonable inferences drawn from
2 10 those facts in light of experience. For purposes of this
2 11 paragraph, facts and inferences may be based upon, but not
2 12 limited to, any of the following:
2 13 (1) Observable phenomena while at work such as direct
2 14 observation of alcohol or other drug use or abuse or of the
2 15 physical symptoms or manifestations of being impaired due to
2 16 alcohol or other drug use.
2 17 (2) Abnormal conduct or erratic behavior while at work or
2 18 a significant deterioration in work performance.
2 19 (3) A report of alcohol or other drug use provided by a
2 20 reliable and credible source.
2 21 (4) Evidence that an individual has tampered with any drug
2 22 or alcohol test during the individual's employment with the
2 23 current employer.
2 24 (5) Evidence that an employee has caused an accident while
2 25 at work which resulted in an injury to an employee which is
2 26 required to be reported pursuant to chapter 88, or a
2 27 comparable injury to a person who is not an employee, or
2 28 resulted in damage to property, including to equipment, in an
2 29 amount reasonably estimated at the time of the accident to
2 30 exceed one thousand dollars.
2 31 (6) Evidence that an employee has manufactured, sold,
2 32 distributed, solicited, possessed, used, or transferred drugs
2 33 while working or while on the employer's premises or while
2 34 operating the employer's vehicle, machinery, or equipment.
2 35 i. "Sample" means such sample from the human body capable
3 1 of revealing the presence of alcohol or other drugs, or their
3 2 metabolites. However, sample does not mean blood except as
3 3 authorized pursuant to subsection 7, paragraph "k".
3 4 j. "Unannounced drug or alcohol testing" means testing for
3 5 the purposes of detecting drugs or alcohol which is conducted
3 6 on a periodic basis, without advance notice of the test to
3 7 employees subject to testing prior to the day of testing, and
3 8 without individualized suspicion. The selection of employees
3 9 to be tested from the pool of employees subject to testing
3 10 shall be done based on a neutral and objective selection
3 11 process by an entity independent from the employer and shall
3 12 be made by a computer-based random number generator that is
3 13 matched with employees' social security numbers, payroll
3 14 identification numbers, or other comparable identifying
3 15 numbers in which each member of the employee population
3 16 subject to testing has an equal chance of selection for
3 17 initial testing, regardless of whether the employee has been
3 18 selected or tested previously. The random selection process
3 19 shall be conducted through a computer program that records
3 20 each selection attempt by date, time, and employee number. In
3 21 addition, the neutral and objective selection process shall
3 22 not in any way, or to any degree, take into account race, age,
3 23 gender, job performance, job classification, seniority,
3 24 salary, representation status or activities, political
3 25 philosophy, religion, creed, national origin, or any other
3 26 personal factor, whether work-related or not, other than the
3 27 objective criteria necessary to the neutral selection process.
3 28 2. APPLICABILITY. This section does not apply to drug or
3 29 alcohol tests conducted on employees required to be tested
3 30 pursuant to federal statutes or federal regulations. However,
3 31 the requirements of subsection 9, paragraph "f", do apply to
3 32 the extent they are not inconsistent with any applicable
3 33 federal statute or regulation.
3 34 3. TESTING OPTIONAL. This section does not require an
3 35 employer to conduct drug or alcohol testing and the
4 1 requirements of this section shall not be construed to
4 2 encourage, discourage, restrict, limit, prohibit, or require
4 3 such testing. In addition, an employer may implement and
4 4 require drug or alcohol testing at some but not all of the
4 5 work sites of the employer and the requirements of this
4 6 section shall only apply to the employer and employees who are
4 7 at the work sites where drug or alcohol testing pursuant to
4 8 this section has been implemented.
4 9 4. TESTING AS CONDITION OF EMPLOYMENT – REQUIREMENTS. To
4 10 the extent provided in subsection 8, an employer may test
4 11 employees and prospective employees for the presence of drugs
4 12 or alcohol as a condition of continued employment or hiring.
4 13 An employer shall adhere to the requirements of this section
4 14 concerning the conduct of such testing and the use and
4 15 disposition of the results of such testing.
4 16 5. COLLECTION OF SAMPLES. In conducting drug or alcohol
4 17 testing, an employer may require the collection of samples
4 18 from its employees and prospective employees, and may require
4 19 presentation of reliable individual identification from the
4 20 person being tested to the person collecting the samples.
4 21 Collection of a sample shall be in conformance with the
4 22 requirements of this section. The employer may designate the
4 23 type of sample to be used for this testing.
4 24 6. SCHEDULING OF TESTS.
4 25 a. Drug or alcohol testing of employees conducted by an
4 26 employer shall normally occur during, or immediately before or
4 27 after, a regular work period. The time required for such
4 28 testing by an employer shall be deemed work time for the
4 29 purposes of compensation and benefits for employees.
4 30 b. An employer shall pay all actual costs for drug or
4 31 alcohol testing of employees and prospective employees
4 32 required by the employer.
4 33 c. An employer shall provide transportation or pay
4 34 reasonable transportation costs to employees if drug or
4 35 alcohol sample collection is conducted at a location other
5 1 than the employee's normal work site.
5 2 7. TESTING PROCEDURES. All sample collection and testing
5 3 for drugs or alcohol under this section shall be performed in
5 4 accordance with the following conditions:
5 5 a. The collection of samples shall be performed under
5 6 sanitary conditions and with regard for the privacy of the
5 7 individual from whom the specimen is being obtained and in a
5 8 manner reasonably calculated to preclude contamination or
5 9 substitution of the specimen.
5 10 b. Sample collection for testing of current employees
5 11 shall be performed so that the specimen is split into two
5 12 components at the time of collection in the presence of the
5 13 individual from whom the sample or specimen is collected. The
5 14 second portion of the specimen or sample shall be of
5 15 sufficient quantity to permit a second, independent
5 16 confirmatory test as provided in paragraph "i". If the
5 17 specimen is urine, the sample shall be split such that the
5 18 primary sample contains at least thirty milliliters and the
5 19 secondary sample contains at least fifteen milliliters. Both
5 20 portions of the sample shall be forwarded to the laboratory
5 21 conducting the initial confirmatory testing. In addition to
5 22 any requirements for storage of the initial sample that may be
5 23 imposed upon the laboratory as a condition for certification
5 24 or approval, the laboratory shall store the second portion of
5 25 any sample until receipt of a confirmed negative test result
5 26 or for a period of at least forty-five calendar days following
5 27 the completion of the initial confirmatory testing, if the
5 28 first portion yielded a confirmed positive test result.
5 29 c. Sample collections shall be documented, and the
5 30 procedure for documentation shall include the following:
5 31 (1) Samples shall be labeled so as to reasonably preclude
5 32 the possibility of misidentification of the person tested in
5 33 relation to the test result provided, and samples shall be
5 34 handled and tracked in a manner such that control and
5 35 accountability are maintained from initial collection to each
6 1 stage in handling, testing, and storage, through final
6 2 disposition.
6 3 (2) An employee or prospective employee shall be provided
6 4 an opportunity to provide any information which may be
6 5 considered relevant to the test, including identification of
6 6 prescription or nonprescription drugs currently or recently
6 7 used, or other relevant medical information. To assist an
6 8 employee or prospective employee in providing the information
6 9 described in this subparagraph, the employer shall provide an
6 10 employee or prospective employee with a list of the drugs to
6 11 be tested.
6 12 d. Sample collection, storage, and transportation to the
6 13 place of testing shall be performed so as to reasonably
6 14 preclude the possibility of sample contamination,
6 15 adulteration, or misidentification.
6 16 e. All drug testing shall be performed using methodologies
6 17 required or approved by the United States department of health
6 18 and human services' substance abuse and mental health services
6 19 administration, the United States department of health and
6 20 human services under the federal Clinical Laboratory
6 21 Improvement Act, the United States food and drug
6 22 administration, or the Iowa department of public health.
6 23 All confirmatory drug testing shall be conducted at a
6 24 laboratory certified by the United States department of health
6 25 and human services' substance abuse and mental health services
6 26 administration or approved under rules adopted by the Iowa
6 27 department of public health.
6 28 f. Drug or alcohol testing shall include confirmation of
6 29 any initial positive test results. For drug testing,
6 30 confirmation shall be by use of a different chemical process
6 31 than was used in the initial screen for drugs. The
6 32 confirmatory drug test shall be a chromatographic technique
6 33 such as gas chromatography or mass spectrometry, or another
6 34 comparably reliable analytical method. An employer may take
6 35 adverse employment action, including refusal to hire a
7 1 prospective employee, based on a confirmed positive drug or
7 2 alcohol test.
7 3 g. A medical review officer shall, prior to the results
7 4 being reported to an employer, review and interpret any
7 5 confirmed positive drug test results, including both
7 6 quantitative and qualitative test results, to ensure that the
7 7 chain of custody is complete and sufficient on its face and
7 8 that any information provided by the individual pursuant to
7 9 paragraph "c", subparagraph (2), is considered.
7 10 h. In conducting drug or alcohol testing pursuant to this
7 11 section, the laboratory, the medical review officer, and the
7 12 employer shall ensure, to the extent feasible, that the
7 13 testing only measure, and the records concerning the testing
7 14 only show or make use of information regarding, alcohol or
7 15 drugs in the body.
7 16 i. (1) If a confirmed positive drug test for a current
7 17 employee is reported to the employer by the medical review
7 18 officer, the employer shall notify the employee in writing of
7 19 the results of the test, the employee's right to request and
7 20 obtain a confirmatory test of the second sample collected
7 21 pursuant to paragraph "b" at an approved laboratory of the
7 22 employee's choice, and the fee payable by the employee to the
7 23 employer for reimbursement of expenses concerning the test.
7 24 The fee charged an employee shall be an amount that represents
7 25 the costs associated with conducting the second confirmatory
7 26 test, which shall be consistent with the employer's cost for
7 27 conducting the initial confirmatory test on an employee's
7 28 sample. If the employee requests a second confirmatory test,
7 29 identifies an approved laboratory to conduct the test, and
7 30 pays the employer the fee for the test within five days from
7 31 the date the employee receives written notice of the right to
7 32 request a test, a second confirmatory test shall be conducted
7 33 at the laboratory chosen by the employee. The results of the
7 34 second confirmatory test shall be reported to the medical
7 35 review officer who reviewed the initial confirmatory test
8 1 results and the medical review officer shall review the
8 2 results and issue a report to the employer on whether the
8 3 results of the second confirmatory test confirmed the initial
8 4 confirmatory test as to the presence of a specific drug. If
8 5 the results of the second test do not confirm the results of
8 6 the initial confirmatory test, the employer shall reimburse
8 7 the employee for the fee paid by the employee for the second
8 8 test and the initial confirmatory test shall not be considered
8 9 a confirmed positive drug test for purposes of taking
8 10 disciplinary action pursuant to subsection 10.
8 11 (2) If a confirmed positive drug or alcohol test for a
8 12 prospective employee is reported to the employer by the
8 13 medical review officer, the employer shall notify the
8 14 prospective employee in writing of the results of the test, of
8 15 the name and address of the medical review officer who made
8 16 the report, and of the prospective employee's right to request
8 17 records under subsection 13.
8 18 j. A laboratory conducting testing under this section
8 19 shall dispose of all samples for which a negative test result
8 20 was reported to an employer within five working days after
8 21 issuance of the negative test result report.
8 22 k. The requirements of this subsection concerning sample
8 23 collection and testing shall not apply if the results of a
8 24 blood test conducted on an employee involved in an accident at
8 25 work which indicates the presence of drugs or alcohol were
8 26 lawfully obtained by an employer from the hospital or other
8 27 medical facility which had treated the employee following the
8 28 workplace accident.
8 29 8. DRUG OR ALCOHOL TESTING. Employers may conduct drug or
8 30 alcohol testing as provided in this subsection:
8 31 a. Employers may conduct unannounced drug or alcohol
8 32 testing of employees who are selected from a pool of employees
8 33 that consists of every employee at a particular work site of
8 34 the employer.
8 35 b. Employers may conduct drug or alcohol testing of
9 1 employees during, and after completion of, drug or alcohol
9 2 rehabilitation.
9 3 c. Employers may conduct reasonable suspicion drug or
9 4 alcohol testing.
9 5 d. Employers may conduct drug or alcohol testing of
9 6 prospective employees.
9 7 e. Employers may conduct drug or alcohol testing as
9 8 required by federal law or regulation or by law enforcement.
9 9 f. Employers may conduct drug or alcohol testing in
9 10 investigating accidents in the workplace in which the accident
9 11 resulted in an injury to an employee which is required to be
9 12 reported pursuant to chapter 88, or a comparable injury to a
9 13 person who is not an employee, or resulted in damage to
9 14 property, including to equipment, in an amount reasonably
9 15 estimated at the time of the accident to exceed one thousand
9 16 dollars.
9 17 9. WRITTEN POLICY AND OTHER TESTING REQUIREMENTS.
9 18 a. Drug or alcohol testing or retesting by an employer
9 19 shall be carried out within the terms of a written policy
9 20 which has been provided to every employee subject to testing,
9 21 and is available for review by employees and prospective
9 22 employees.
9 23 b. The employer's written policy shall provide uniform
9 24 requirements for what disciplinary or rehabilitative actions
9 25 an employer shall take against an employee or prospective
9 26 employee upon receipt of a confirmed positive drug or alcohol
9 27 test result or upon the refusal of the employee or prospective
9 28 employee to provide a testing sample. The policy shall
9 29 provide that any action taken against an employee or
9 30 prospective employee shall be based only on the results of the
9 31 drug or alcohol test and shall not in any way, or to any
9 32 degree, take into account race, age, gender, job performance,
9 33 job classification, seniority, salary, representation status
9 34 or activities, political philosophy, religion, creed, national
9 35 origin, or any other personal factor, whether work-related or
10 1 not. An employer who fails to comply with the provisions of
10 2 this subsection as to a drug or alcohol test shall be
10 3 prohibited from taking any disciplinary action against an
10 4 employee or prospective employee pursuant to that test and
10 5 shall be prohibited from conducting an unannounced drug or
10 6 alcohol test pursuant to this section for one year following a
10 7 violation of this subsection.
10 8 c. Employers shall establish an awareness program to
10 9 inform employees of the dangers of drug and alcohol use in the
10 10 workplace and comply with the following requirements in order
10 11 to conduct drug or alcohol testing under this section:
10 12 (1) If an employer has an employee assistance program, the
10 13 employer must inform the employee of the benefits and services
10 14 of the employee assistance program. An employer shall post
10 15 notice of the employee assistance program in conspicuous
10 16 places and explore alternative routine and reinforcing means
10 17 of publicizing such services. In addition, the employer must
10 18 provide the employee with notice of the policies and
10 19 procedures regarding access to and utilization of the program.
10 20 (2) If an employer does not have an employee assistance
10 21 program, the employer must maintain a resource file of
10 22 employee assistance services providers, alcohol and other drug
10 23 abuse programs certified by the Iowa department of public
10 24 health, mental health providers, and other persons, entities,
10 25 or organizations available to assist employees with personal
10 26 or behavioral problems. The employer shall provide all
10 27 employees information about the existence of the resource file
10 28 and a summary of the information contained within the resource
10 29 file. The summary should contain, but need not be limited to,
10 30 all information necessary to access the services listed in the
10 31 resource file. In addition, the employer shall post in
10 32 conspicuous places a listing of multiple employee assistance
10 33 providers in the area.
10 34 d. An employee or prospective employee whose drug or
10 35 alcohol test results are confirmed as positive in accordance
11 1 with this section shall not, by virtue of those results alone,
11 2 be considered as a person with a disability for purposes of
11 3 any state or local law or regulation.
11 4 e. If the written policy provides for alcohol testing, the
11 5 employer shall establish in the written policy a standard for
11 6 alcohol concentration which shall be deemed to violate the
11 7 policy. The standard for alcohol concentration shall not be
11 8 less than .04, expressed in terms of grams of alcohol per two
11 9 hundred ten liters of breath, or its equivalent.
11 10 f. Upon receipt of a confirmed positive drug test, or upon
11 11 receipt of a confirmed positive alcohol test which indicates
11 12 an alcohol concentration greater than the concentration level
11 13 established by the employer pursuant to this section but less
11 14 than the concentration level in section 321J.2 for operating
11 15 while under the influence of alcohol, and if the employer has
11 16 at least fifty employees, if rehabilitation is agreed upon by
11 17 the employee, and if the employee has not previously violated
11 18 the employer's substance abuse prevention policy pursuant to
11 19 this section, the written policy shall provide for the
11 20 rehabilitation of the employee pursuant to subsection 10,
11 21 paragraph "a", subparagraph (1), and the apportionment of the
11 22 costs of rehabilitation as provided by this paragraph.
11 23 (1) If the employer has an employee benefit plan, the
11 24 costs of rehabilitation shall be apportioned as provided under
11 25 the employee benefit plan.
11 26 (2) If no employee benefit plan exists and the employee
11 27 has coverage for any portion of the costs of rehabilitation
11 28 under any health care plan of the employee, the costs of
11 29 rehabilitation shall be apportioned as provided by the health
11 30 care plan with any costs not covered by the plan apportioned
11 31 equally between the employee and the employer. However, the
11 32 employer shall not be required to pay more than two thousand
11 33 dollars toward the costs not covered by the employee's health
11 34 care plan.
11 35 (3) If no employee benefit plan exists and the employee
12 1 does not have coverage for any portion of the costs of
12 2 rehabilitation under any health care plan of the employee, the
12 3 costs of rehabilitation shall be apportioned equally between
12 4 the employee and the employer. However, the employer shall
12 5 not be required to pay more than two thousand dollars towards
12 6 the cost of rehabilitation under this subparagraph.
12 7 Rehabilitation required pursuant to this paragraph shall
12 8 not prevent an employer from taking any other adverse
12 9 employment action against the employee during the
12 10 rehabilitation if the employee fails to comply with any
12 11 requirements of the rehabilitation, including any action by
12 12 the employee to invalidate a test sample provided by the
12 13 employee pursuant to the rehabilitation.
12 14 g. In order to conduct drug or alcohol testing under this
12 15 section, an employer shall require supervisory personnel of
12 16 the employer involved with drug or alcohol testing under this
12 17 section to attend a minimum of two hours of initial training
12 18 and to attend, on an annual basis thereafter, a minimum of one
12 19 hour of subsequent training. The training shall include, but
12 20 is not limited to, information concerning the recognition of
12 21 evidence of employee alcohol and other drug abuse, the
12 22 documentation and corroboration of employee alcohol and other
12 23 drug abuse, and the referral of employees who abuse alcohol or
12 24 other drugs to the employee assistance program or to the
12 25 resource file of employee assistance services providers.
12 26 10. DISCIPLINARY PROCEDURES.
12 27 a. Upon receipt of a confirmed positive drug or alcohol
12 28 test result which indicates a violation of the employer's
12 29 written policy, or upon the refusal of an employee or
12 30 prospective employee to provide a testing sample, an employer
12 31 may use that test result or test refusal as a valid basis for
12 32 disciplinary or rehabilitative actions pursuant to the
12 33 requirements of the employer's written policy, which may
12 34 include, among other actions, the following:
12 35 (1) A requirement that the employee enroll in an employer-
13 1 provided or approved rehabilitation, treatment, or counseling
13 2 program, which may include additional drug or alcohol testing,
13 3 participation in and successful completion of which may be a
13 4 condition of continued employment, and the costs of which may
13 5 or may not be covered by the employer's health plan or
13 6 policies.
13 7 (2) Suspension of the employee, with or without pay, for a
13 8 designated period of time.
13 9 (3) Termination of employment.
13 10 (4) Refusal to hire a prospective employee.
13 11 (5) Other adverse employment action in conformance with
13 12 the employer's written policy and procedures, including any
13 13 relevant collective bargaining agreement provisions.
13 14 b. Following a drug or alcohol test, but prior to receipt
13 15 of the final results of the drug or alcohol test, an employer
13 16 may suspend a current employee, with or without pay, pending
13 17 the outcome of the test. An employee who has been suspended
13 18 shall be reinstated by the employer, with back pay, and
13 19 interest on such amount at eighteen percent per annum
13 20 compounded annually, if applicable, if the result of the test
13 21 is not a confirmed positive drug or alcohol test which
13 22 indicates a violation of the employer's written policy.
13 23 11. EMPLOYER IMMUNITY. A cause of action shall not arise
13 24 against an employer who has established a policy and initiated
13 25 a testing program in accordance with the testing and policy
13 26 safeguards provided for under this section, for any of the
13 27 following:
13 28 a. Testing or taking action based on the results of a
13 29 positive drug or alcohol test result, indicating the presence
13 30 of drugs or alcohol, in good faith, or the refusal of an
13 31 employee or prospective employee to submit to a drug or
13 32 alcohol test.
13 33 b. Failure to test for drugs or alcohol, or failure to
13 34 test for a specific drug or controlled substance.
13 35 c. Failure to test for, or if tested for, failure to
14 1 detect, any specific drug or other controlled substance.
14 2 d. Termination or suspension of any substance abuse
14 3 prevention or testing program or policy.
14 4 e. Any action taken related to a false negative drug or
14 5 alcohol test result.
14 6 12. EMPLOYER LIABILITY – FALSE POSITIVE TEST RESULTS.
14 7 a. Except as otherwise provided in paragraph "b", a cause
14 8 of action shall not arise against an employer who has
14 9 established a program of drug or alcohol testing in accordance
14 10 with this section, unless all of the following conditions
14 11 exist:
14 12 (1) The employer's action was based on a false positive
14 13 test result.
14 14 (2) The employer knew or clearly should have known that
14 15 the test result was in error and ignored the correct test
14 16 result because of reckless, malicious, or negligent disregard
14 17 for the truth, or the willful intent to deceive or to be
14 18 deceived.
14 19 b. A cause of action for defamation, libel, slander, or
14 20 damage to reputation shall not arise against an employer
14 21 establishing a program of drug or alcohol testing in
14 22 accordance with this section unless all of the following
14 23 apply:
14 24 (1) The employer discloses the test results to a person
14 25 other than the employer, an authorized employee, agent, or
14 26 representative of the employer, the tested employee or the
14 27 tested applicant for employment, an authorized substance abuse
14 28 treatment program or employee assistance program, or an
14 29 authorized agent or representative of the tested employee or
14 30 applicant.
14 31 (2) The test results disclosed incorrectly indicate the
14 32 presence of alcohol or drugs.
14 33 (3) The employer negligently discloses the results.
14 34 c. In any cause of action based upon a false positive test
14 35 result, all of the following conditions apply:
15 1 (1) The results of a drug or alcohol test conducted in
15 2 compliance with this section are presumed to be valid.
15 3 (2) An employer shall not be liable for monetary damages
15 4 if the employer's reliance on the false positive test result
15 5 was reasonable and in good faith.
15 6 13. CONFIDENTIALITY OF RESULTS – EXCEPTION.
15 7 a. Except as provided in paragraph "b", all communications
15 8 received by an employer relevant to employee or prospective
15 9 employee drug or alcohol test results, or otherwise received
15 10 through the employer's drug or alcohol testing program, are
15 11 confidential communications and shall not be used or received
15 12 in evidence, obtained in discovery, or disclosed in any public
15 13 or private proceeding, except as provided by this section or
15 14 in a proceeding related to an action taken by an employer
15 15 under this section or by an employee under this section.
15 16 b. An employee, or a prospective employee, who is the
15 17 subject of a drug or alcohol test conducted under this section
15 18 pursuant to an employer's written policy and for whom a
15 19 confirmed positive test result is reported shall, upon written
15 20 request, have access to any records relating to the employee's
15 21 drug or alcohol test, including records of the laboratory
15 22 where the testing was conducted and any records relating to
15 23 the results of any relevant certification or review by a
15 24 medical review officer. However, a prospective employee shall
15 25 be entitled to records under this paragraph only if the
15 26 prospective employee requests the records within fifteen
15 27 calendar days from the date the employer provided the
15 28 prospective employee written notice of the results of a drug
15 29 test as provided in subsection 7, paragraph "i", subparagraph
15 30 (2).
15 31 c. Except as provided by this subsection and as necessary
15 32 to conduct drug or alcohol testing under this section and to
15 33 file a report pursuant to subsection 16, a laboratory and a
15 34 medical review officer conducting drug or alcohol testing
15 35 under this section shall not use or disclose to any person any
16 1 information regarding such testing, including the names of
16 2 individuals tested, even if unaccompanied by the results of
16 3 the test.
16 4 14. CIVIL PENALTIES – JURISDICTION.
16 5 a. Any laboratory or medical review officer who discloses
16 6 information in violation of the provisions of subsection 13,
16 7 paragraph "c", or who conducts a drug or alcohol test in
16 8 violation of the provisions of subsection 7, paragraph "h",
16 9 shall be subject to a civil penalty of one thousand dollars
16 10 for each violation. The attorney general or the attorney
16 11 general's designee may maintain a civil action to enforce this
16 12 subsection. Any civil penalty recovered shall be deposited in
16 13 the general fund of the state.
16 14 b. A laboratory or medical review officer involved in the
16 15 conducting of a drug or alcohol test pursuant to this section
16 16 shall be deemed to have the necessary contact with this state
16 17 for the purpose of subjecting the laboratory or medical review
16 18 officer to the jurisdiction of the courts of this state.
16 19 15. CIVIL REMEDIES. This section may be enforced through
16 20 a civil action.
16 21 a. A person who violates this section or who aids in the
16 22 violation of this section, is liable to an aggrieved employee
16 23 or prospective employee for affirmative relief including
16 24 reinstatement or hiring, with or without back pay, or any
16 25 other equitable relief as the court deems appropriate
16 26 including attorney fees and court costs.
16 27 b. When a person commits, is committing, or proposes to
16 28 commit, an act in violation of this section, an injunction may
16 29 be granted through an action in district court to prohibit the
16 30 person from continuing such acts. The action for injunctive
16 31 relief may be brought by an aggrieved employee or prospective
16 32 employee, the county attorney, or the attorney general.
16 33 In an action brought under this subsection alleging that an
16 34 employer has required or requested a drug or alcohol test in
16 35 violation of this section, the employer has the burden of
17 1 proving that the requirements of this section were met.
17 2 16. REPORTS. A laboratory doing business for an employer
17 3 who conducts an unannounced drug or alcohol test pursuant to
17 4 this section shall file an annual report with the Iowa
17 5 department of public health by March 1 of each year concerning
17 6 the number of unannounced drug or alcohol tests conducted on
17 7 employees pursuant to this section, and the number of positive
17 8 results of the tests, during the previous calendar year.
17 9 Sec. 2. EFFECTIVE DATE. This Act takes effect on the
17 10 thirtieth day following enactment.
17 11 EXPLANATION
17 12 This bill makes changes to Iowa's law governing drug and
17 13 alcohol testing of employees and prospective employees by
17 14 repealing current law and replacing it with a new Code
17 15 section.
17 16 The bill provides that the drug and alcohol testing
17 17 requirements established by the bill apply only to private
17 18 sector employers and excludes the state and its political
17 19 subdivisions, as well as Native American tribes and the
17 20 federal government, from the definition of employer. The bill
17 21 also provides that the requirements of the bill do not apply
17 22 to drug or alcohol tests of employees required by federal law
17 23 except that the provisions governing rehabilitation after
17 24 certain positive alcohol tests does apply if not inconsistent
17 25 with federal law.
17 26 The bill governs the procedures for conducting a drug or
17 27 alcohol test and provides for the collection of samples, the
17 28 scheduling of tests, and the conduct of the drug or alcohol
17 29 test. The bill also requires that the results of drug or
17 30 alcohol testing be confirmed and specifies the methodology by
17 31 which a drug test shall be confirmed. The bill provides that
17 32 samples collected from current employees shall be split into
17 33 two so that an employee has an opportunity to have the second
17 34 sample tested if the test of the first sample indicating the
17 35 presence of drugs or alcohol is confirmed.
18 1 The bill permits unannounced drug or alcohol testing of all
18 2 employees at a particular work site of the employer and
18 3 testing of employees during and after completion of drug or
18 4 alcohol rehabilitation. The bill also permits drug or alcohol
18 5 testing based on reasonable suspicion, on prospective
18 6 employees, in investigating an accident at work, and as
18 7 required by federal law or regulation or by law enforcement.
18 8 The bill requires an employer to establish a written
18 9 policy, available to employees and prospective employees,
18 10 governing drug or alcohol testing. The written policy shall
18 11 provide for uniform requirements for what disciplinary or
18 12 rehabilitative actions an employer can take following a
18 13 positive drug or alcohol test that shall be based only on the
18 14 results of the test. The bill also provides what disciplinary
18 15 or rehabilitative actions are permissible as a part of the
18 16 employer's written policy. The bill also provides that an
18 17 employer who violates the uniform requirements concerning
18 18 disciplinary or rehabilitative actions as to a particular drug
18 19 or alcohol test is prohibited from taking adverse action
18 20 against any employee or prospective employee based on that
18 21 test and that the employer shall not conduct an unannounced
18 22 drug or alcohol test for one year. The bill further provides
18 23 that for a positive drug test and for certain positive alcohol
18 24 tests, the employer shall provide rehabilitation to the
18 25 employee. The requirement for rehabilitation shall only apply
18 26 to certain larger employers and to employees who have not
18 27 previously violated the employer's substance abuse policy.
18 28 The written policy shall also provide, if applicable, a
18 29 minimum level for a positive alcohol test result, but in no
18 30 event lower than .04, and information about the employer's
18 31 employee assistance program, if applicable, or community
18 32 services concerning alcohol and drug abuse.
18 33 The bill also makes provisions governing the liability of
18 34 an employer. The bill provides that an employer shall not be
18 35 liable for actions taken in good faith based on a positive
19 1 drug or alcohol test, for failing to test for drugs and
19 2 alcohol or for failing to detect any specific drug or other
19 3 controlled substance or medical condition, for terminating or
19 4 suspending a drug and alcohol testing program or policy, or
19 5 for failing to take action relating to a false negative test
19 6 result. The bill provides that an employer shall be liable
19 7 for actions taken based upon a false positive test only if the
19 8 employer knew or clearly should have known the test was
19 9 incorrect and ignored the correct result because of a reckless
19 10 disregard for the truth. In addition, the bill also provides
19 11 that an employer is not liable for an action based on libel,
19 12 slander, or defamation unless certain additional requirements
19 13 are met, generally requiring a finding that an incorrect
19 14 positive test result was disclosed negligently. The bill
19 15 establishes that a drug or alcohol test conducted in
19 16 accordance with the bill is presumed valid and that an
19 17 employer is not liable for monetary damages if the employer's
19 18 reliance on a false positive test was reasonable and in good
19 19 faith.
19 20 The bill also provides for the confidentiality of test
19 21 results and provides that laboratories and medical review
19 22 officers conducting drug or alcohol testing pursuant to this
19 23 bill who violate the confidentiality provisions or who do not
19 24 limit testing to a determination of whether the sample
19 25 contains drugs or alcohol are subject to a civil penalty of
19 26 $1,000. The bill also provides that a person who violates the
19 27 provisions of this new Code section is liable to an aggrieved
19 28 employee or prospective employee through a civil action for
19 29 affirmative relief such as reinstatement or for injunctive
19 30 relief, as applicable.
19 31 The bill further provides for reporting of the number and
19 32 results of unannounced drug or alcohol tests conducted during
19 33 a calendar year to the Iowa department of public health.
19 34 The bill takes effect 30 days after enactment.
19 35 LSB 3977XS 77
20 1 ec/jw/5
Text: SF02232 Text: SF02234 Text: SF02200 - SF02299 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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