HF 748 (LSB 1787HV (1) 89)

HOUSE FILE 748

BY  COMMITTEE ON LABOR

(SUCCESSOR TO HSB 248)

(COMPANION TO SF 361 BY COMMITTEE ON LABOR AND BUSINESS RELATIONS)

A BILL FOR

An Act concerning private sector employee drug testing.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 730.5, subsection 1, paragraph j, Code 2021, is amended to read as follows:
   j.  “Safety-sensitive position” means a job position designated by the employer as one wherein an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage, including a job with duties that include immediate supervision of a person in a job that meets the requirement of this paragraph.
    Sec. 2.  Section 730.5, subsection 7, paragraph j, subparagraph (1), Code 2021, is amended to read as follows:
   (1)  If a confirmed positive test result for drugs or alcohol for a current employee is reported to the employer by the medical review officer, the employer shall notify the employee in writing delivered in person, by certified mail, return receipt requested, or by electronic notification of the results of the test, the employee’s right to request and obtain a confirmatory test of the second sample collected pursuant to paragraph “b” at an approved laboratory of the employee’s choice, and the fee payable by the employee to the employer for reimbursement of expenses concerning the test. The fee charged an employee shall be an amount that represents the costs associated with conducting the second confirmatory test, which shall be consistent with the employer’s cost for conducting the initial confirmatory test on an employee’s sample. If the employee, in person, or by certified mail, return receipt requested, or by electronic notification, requests a second confirmatory test, identifies an approved laboratory to conduct the test, and pays the employer the fee for the test within seven days from the date the employer delivers in person, mails by certified mail, return receipt requested, or delivers electronically the written notice to the employee of the employee’s right to request a test, a second confirmatory test shall be conducted at the laboratory chosen by the employee. The results of the second confirmatory test shall be reported to the medical review officer who reviewed the initial confirmatory test results and the medical review officer shall review the results and issue a report to the employer on whether the results of the second confirmatory test confirmed the initial confirmatory test as to the presence of a specific drug or alcohol. If the results of the second test do not confirm the results of the initial confirmatory test, the employer shall reimburse the employee for the fee paid by the employee for the second test and the initial confirmatory test shall not be considered a confirmed positive test result for drugs or alcohol for purposes of taking disciplinary action pursuant to subsection 10.
    Sec. 3.  Section 730.5, subsection 9, paragraph a, subparagraphs (1) and (2), Code 2021, are amended to read as follows:
   (1)  Drug or alcohol testing or retesting by an employer shall be carried out within the terms of a written policy which has been provided to every employee subject to testing, and is available for review by employees and prospective employees. If an employee or prospective employee is a minor, the employer shall provide a copy of the written policy to a parent of the employee or prospective employee and shall obtain a receipt or acknowledgment from the parent that a copy of the policy has been received. Providing a copy of the written policy to a parent or minor in person, by certified mail, return receipt requested, or by electronic notification shall satisfy the requirements of this subparagraph.
   (2)  In addition, the written policy shall provide that any notice required by subsection 7, paragraph “j”, to be provided to an individual pursuant to a drug or alcohol test conducted pursuant to this section, shall also be provided to the parent of the individual in person, by certified mail, return receipt requested, or by electronic notification if the individual tested is a minor.
    Sec. 4.  Section 730.5, subsection 15, Code 2021, is amended to read as follows:
   15.  Civil remedies.
   a.  This section may be enforced through a civil action.
   (1)  a.  A person who violates this section or who aids in the violation of this section is liable to an aggrieved employee or prospective employee for affirmative relief including reinstatement or hiring, with or without back pay, or any other equitable relief as the court deems appropriate including reasonable attorney fees and court costs.  An aggrieved employee or prospective employee has the burden of proving by clear and convincing evidence that a violation of this section directly caused any damages for which affirmative relief is sought.
   (2)  b.  When a person commits, is committing, or proposes to commit, an act in violation of this section, an injunction may be granted through an action in district court to prohibit the person from continuing such acts. The action for injunctive relief may be brought by an aggrieved employee or prospective employee, the county attorney, or the attorney general.
   b.  In an action brought under this subsection alleging that an employer has required or requested a drug or alcohol test in violation of this section, the employer has the burden of proving that the requirements of this section were met.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to Code section 730.5, concerning private sector employee drug testing.
   Under current law, “safety-sensitive position”, for purposes of Code section 730.5, is defined as a job wherein an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage, including a job with duties that include immediate supervision of a person in a safety-sensitive position. The bill provides that the definition applies to positions designated as safety sensitive positions by the employer.
   The bill provides that various notifications required under current law to be provided by certified mail, return receipt requested, can also be provided in person or by electronic notification.
   The bill provides that attorney fees awarded to an aggrieved employee or prospective employee as part of affirmative relief in a civil action for a violation of Code section 730.5 must be reasonable. In such an action, the bill provides that an aggrieved employee or prospective employee has the burden of proving by clear and convincing evidence that a violation of Code section 730.5 directly caused any damages for which affirmative relief is sought.
   The bill strikes language providing that in a legal action alleging that an employer has required or requested a drug or alcohol test in violation of Code section 730.5, the employer has the burden of proving that the requirements of Code section 730.5 were met.