Text: HF00298 Text: HF00300 Text: HF00200 - HF00299 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 Section 1. Section 730.5, Code 1997, is amended by
1 2 striking the section and inserting in lieu thereof the
1 3 following:
1 4 730.5 PRIVATE SECTOR DRUG-FREE WORKPLACES.
1 5 1. DEFINITIONS. As used in this section, unless the
1 6 context otherwise requires:
1 7 a. "Alcohol" means ethanol, isopropanol, or methanol.
1 8 b. "Drug" means a substance considered unlawful under the
1 9 federal Controlled Substances Act, 21 U.S.C. } 801 et seq.
1 10 c. "Employee" means a person in the service of an employer
1 11 and includes the employer, and any chief executive officer,
1 12 president, vice president, supervisor, manager, and officer of
1 13 the employer.
1 14 d. "Employer" means a person, firm, company, corporation,
1 15 labor organization, employment agency, or joint labor-
1 16 management committee, including any public utility or public
1 17 transportation entity, which has one or more full-time
1 18 employees employed in the same business, or in or about the
1 19 same establishment, under any contract of hire, express or
1 20 implied, oral or written, in this state. "Employer" does not
1 21 include the state, a political subdivision of the state,
1 22 including a city, county, or school district, the United
1 23 States, the United States postal service, or a Native-American
1 24 tribe.
1 25 e. "Good faith" means reasonable reliance on facts, or
1 26 that which is held out to be factual, without the intent to be
1 27 deceived, and without reckless, malicious, or negligent
1 28 disregard for the truth.
1 29 f. "Medical review officer" means a physician licensed to
1 30 practice medicine and surgery or osteopathic medicine and
1 31 surgery in any state of the United States, responsible for
1 32 receiving laboratory results generated by an employer's drug
1 33 testing program, who has knowledge of substance abuse
1 34 disorders and has appropriate medical training to interpret
1 35 and evaluate an individual's confirmed positive test result
2 1 together with the individual's medical history and any other
2 2 relevant biomedical information.
2 3 g. "Prospective employee" means a person who has made
2 4 application, whether written or oral, to an employer to become
2 5 an employee.
2 6 h. "Reasonable suspicion drug or alcohol testing" means
2 7 testing for the purposes of detecting drugs or alcohol which
2 8 is conducted on an individual based on a criterion or criteria
2 9 that would suggest to a reasonable person that the individual
2 10 may have engaged in illicit drug use or alcohol abuse, or has
2 11 a substance abuse problem.
2 12 i. "Safety-sensitive position" means a job wherein an
2 13 accident could cause loss of human life, serious bodily
2 14 injury, or significant property or environmental damage,
2 15 including a job with duties that include immediate supervision
2 16 of a person in a job that meets the requirement of this
2 17 paragraph.
2 18 j. "Sample" means such sample from the human body capable
2 19 of revealing the presence of alcohol or other drugs, or their
2 20 metabolites.
2 21 k. "Unannounced drug or alcohol testing" means testing for
2 22 the purposes of detecting drugs or alcohol which is conducted
2 23 on a periodic basis, without advance notice of the test, and
2 24 without individualized suspicion, and with a neutral and
2 25 objective selection process, operated by an entity independent
2 26 from the employer, in which each member of the employee
2 27 population subject to testing has an equal chance of selection
2 28 for initial testing.
2 29 2. TESTING OPTIONAL. This section does not require an
2 30 employer to conduct drug or alcohol testing and the
2 31 requirements of this section shall not be construed to
2 32 encourage, discourage, restrict, limit, prohibit, or require
2 33 such testing.
2 34 3. TESTING AS CONDITION OF EMPLOYMENT – REQUIREMENTS. To
2 35 the extent provided in subsection 7, an employer may test
3 1 employees and prospective employees for the presence of drugs
3 2 or alcohol as a condition of continued employment or hiring.
3 3 An employer shall adhere to the requirements of this section
3 4 concerning the conduct of such testing and the use and
3 5 disposition of the results of such testing.
3 6 4. COLLECTION OF SAMPLES. In conducting drug or alcohol
3 7 testing, an employer may require the collection of samples
3 8 from its employees and prospective employees, and may require
3 9 presentation of reliable individual identification from the
3 10 person being tested to the person collecting the samples.
3 11 Collection of a sample shall be in conformance with the
3 12 requirements of this section. The employer may designate the
3 13 type of sample to be used for this testing.
3 14 5. SCHEDULING OF TESTS.
3 15 a. Drug or alcohol testing of employees conducted by an
3 16 employer shall normally occur during, or immediately before or
3 17 after, a regular work period. The time required for such
3 18 testing by an employer shall be deemed work time for the
3 19 purposes of compensation and benefits for employees.
3 20 b. An employer shall pay all actual costs for drug or
3 21 alcohol testing of employees and prospective employees
3 22 required by the employer.
3 23 c. An employer shall provide transportation or pay
3 24 reasonable transportation costs to employees if drug or
3 25 alcohol sample collection is conducted at a location other
3 26 than the employee's normal work site.
3 27 6. TESTING PROCEDURES. All sample collection and testing
3 28 for drugs or alcohol under this section shall be performed in
3 29 accordance with the following conditions:
3 30 a. The collection of samples shall be performed under
3 31 sanitary conditions and with regard for the privacy of the
3 32 individual from whom the specimen is being obtained and in a
3 33 manner reasonably calculated to preclude contamination or
3 34 substitution of the specimen.
3 35 b. Sample collections shall be documented, and the
4 1 procedure for documentation shall include the following:
4 2 (1) Samples shall be labeled so as to reasonably preclude
4 3 the possibility of misidentification of the person tested in
4 4 relation to the test result provided, and samples shall be
4 5 handled and tracked in a manner such that control and
4 6 accountability are maintained from initial collection to each
4 7 stage in handling, testing, and storage, through final
4 8 disposition.
4 9 (2) An employee or prospective employee shall be provided
4 10 an opportunity to provide any information which may be
4 11 considered relevant to the test, including identification of
4 12 prescription or nonprescription drugs currently or recently
4 13 used, or other relevant medical information.
4 14 c. Sample collection, storage, and transportation to the
4 15 place of testing shall be performed so as to reasonably
4 16 preclude the possibility of sample contamination,
4 17 adulteration, or misidentification.
4 18 d. Confirmatory drug testing shall be conducted at a
4 19 laboratory certified by the United States department of health
4 20 and human services' substance abuse and mental health services
4 21 administration, approved by the United States department of
4 22 health and human services under the federal Clinical
4 23 Laboratory Improvement Act, or approved under rules adopted by
4 24 the Iowa department of public health.
4 25 e. Drug or alcohol testing shall include confirmation of
4 26 any initial positive test results. For drug testing,
4 27 confirmation shall be by use of a different chemical process
4 28 than was used in the initial drug screen. The confirmatory
4 29 drug test shall be a chromatographic technique such as gas
4 30 chromatography or mass spectrometry, or another comparably
4 31 reliable analytical method. An employer may take adverse
4 32 employment action, including refusal to hire a prospective
4 33 employee, based on a confirmed positive drug or alcohol test.
4 34 f. A medical review officer shall, prior to the results
4 35 being reported to an employer, review and interpret any
5 1 confirmed positive test results, including both quantitative
5 2 and qualitative test results, to ensure that the chain of
5 3 custody is complete and sufficient on its face and that any
5 4 information provided by the individual pursuant to paragraph
5 5 "b", subparagraph (2), is considered.
5 6 7. DRUG OR ALCOHOL TESTING. Employers may conduct drug or
5 7 alcohol testing as provided in this subsection:
5 8 a. Employers may conduct unannounced drug or alcohol
5 9 testing of the employee population at large.
5 10 b. Employers may conduct drug or alcohol testing of
5 11 employees in a safety-sensitive position.
5 12 c. Employers may conduct drug or alcohol testing of
5 13 employees during, and after completion of, drug or alcohol
5 14 rehabilitation.
5 15 d. Employers may conduct reasonable suspicion drug or
5 16 alcohol testing if there is reasonable suspicion to believe,
5 17 based on the employee's performance, behavior, attendance, or
5 18 other observable criterion or criteria, that the employee has
5 19 engaged in illicit drug use, or may be under the influence of
5 20 alcohol, or may be otherwise impaired by drugs or alcohol, or
5 21 if an employer believes, in good faith, that the employee may
5 22 have violated the employer's written substance abuse
5 23 prevention policy.
5 24 e. Employers may conduct drug or alcohol testing of
5 25 prospective employees.
5 26 f. Employers may conduct drug or alcohol testing as
5 27 required by federal law or regulation.
5 28 g. Employers may conduct drug or alcohol testing in
5 29 investigating accidents in the workplace.
5 30 8. WRITTEN POLICY AND OTHER TESTING REQUIREMENTS.
5 31 a. Drug or alcohol testing or retesting by an employer
5 32 shall be carried out within the terms of a written policy
5 33 which has been provided to every employee subject to testing,
5 34 and is available for review by employees and prospective
5 35 employees.
6 1 b. Employers shall comply with the following requirements
6 2 in order to conduct drug or alcohol testing under this
6 3 section:
6 4 (1) If an employer has an employee assistance program, the
6 5 employer must inform the employee of the benefits and services
6 6 of the employee assistance program. An employer shall post
6 7 notice of the employee assistance program in conspicuous
6 8 places and explore alternative routine and reinforcing means
6 9 of publicizing such services. In addition, the employer must
6 10 provide the employee with notice of the policies and
6 11 procedures regarding access to and utilization of the program.
6 12 (2) If an employer does not have an employee assistance
6 13 program, the employer must maintain a resource file of
6 14 employee assistance services providers, alcohol and other drug
6 15 abuse programs certified by the Iowa department of public
6 16 health, mental health providers, and other persons, entities,
6 17 or organizations available to assist employees with personal
6 18 or behavioral problems. The employer shall provide all
6 19 employees information about the existence of the resource file
6 20 and a summary of the information contained within the resource
6 21 file. The summary should contain, but need not be limited to,
6 22 all information necessary to access the services listed in the
6 23 resource file. In addition, the employer shall post in
6 24 conspicuous places a listing of multiple employee assistance
6 25 providers in the area.
6 26 c. Within the terms of the written policy, an employer may
6 27 require the collection and testing of samples for, among other
6 28 legitimate drug or alcohol abuse prevention and treatment
6 29 purposes, any of the following:
6 30 (1) Deterrence and detection of possible illicit drug use,
6 31 possession, sale, conveyance, distribution, or manufacture of
6 32 drugs, intoxicants, or controlled substances in any amount or
6 33 in any manner, whether or not the employee is at work, or
6 34 deterrence and detection of possible abuse of alcohol or
6 35 prescription drugs.
7 1 (2) Investigation of possible individual employee
7 2 impairment.
7 3 (3) Investigation of accidents in the workplace.
7 4 (4) Maintenance of safety for employees, customers,
7 5 clients, or the general public.
7 6 (5) Maintenance of productivity, quality of products or
7 7 services, or security of property or information.
7 8 d. An employee or prospective employee whose drug or
7 9 alcohol test results are confirmed as positive in accordance
7 10 with this section shall not, by virtue of those results alone,
7 11 be considered as a person with a disability for purposes of
7 12 any state or local law or regulation.
7 13 e. If the written policy provides for alcohol testing, the
7 14 employer shall establish in the written policy a standard for
7 15 alcohol concentration which shall be deemed to violate the
7 16 policy. Except for employees in safety sensitive positions,
7 17 the standard for alcohol concentration shall not be less than
7 18 .02, expressed in terms of grams of alcohol per two hundred
7 19 ten liters of breath, or its equivalent.
7 20 9. DISCIPLINARY PROCEDURES. Upon receipt of a confirmed
7 21 positive drug or alcohol test result which indicates a
7 22 violation of the employer's written policy, or upon the
7 23 refusal of an employee or prospective employee to provide a
7 24 testing sample, an employer may use that test result or test
7 25 refusal as a valid basis for disciplinary or rehabilitative
7 26 actions consistent with the employer's written policy, which
7 27 may include, among other actions, the following:
7 28 a. A requirement that the employee enroll in an employer-
7 29 provided or approved rehabilitation, treatment, or counseling
7 30 program, which may include additional drug or alcohol testing,
7 31 participation in and successful completion of which may be a
7 32 condition of continued employment, and the costs of which may
7 33 or may not be covered by the employer's health plan or
7 34 policies.
7 35 b. Suspension of the employee, with or without pay, for a
8 1 designated period of time.
8 2 c. Termination of employment.
8 3 d. Refusal to hire a prospective employee.
8 4 e. Other adverse employment action in conformance with the
8 5 employer's written policy and procedures, including any
8 6 relevant collective bargaining agreement provisions.
8 7 10. EMPLOYER IMMUNITY. A cause of action shall not arise
8 8 against an employer who has established a policy and initiated
8 9 a testing program in accordance with the testing and policy
8 10 safeguards provided for under this section, for any of the
8 11 following:
8 12 a. Testing or taking action based on the results of a
8 13 positive drug or alcohol test result, indicating the presence
8 14 of drugs or alcohol, in good faith, or the refusal of an
8 15 employee or prospective employee to submit to a drug or
8 16 alcohol test.
8 17 b. Failure to test for drugs or alcohol, or failure to
8 18 test for a specific drug or controlled substance.
8 19 c. Failure to test for, or if tested for, failure to
8 20 detect, any specific drug or other controlled substance.
8 21 d. Termination or suspension of any substance abuse
8 22 prevention or testing program or policy.
8 23 e. Any action taken related to a false negative drug or
8 24 alcohol test result.
8 25 11. EMPLOYER LIABILITY – FALSE POSITIVE TEST RESULTS.
8 26 a. Except as otherwise provided in paragraph "b", a cause
8 27 of action shall not arise against an employer who has
8 28 established a program of drug or alcohol testing in accordance
8 29 with this section, unless all of the following conditions
8 30 exist:
8 31 (1) The employer's action was based on a false positive
8 32 test result.
8 33 (2) The employer knew or clearly should have known that
8 34 the test result was in error and ignored the correct test
8 35 result because of reckless, malicious, or negligent disregard
9 1 for the truth, or the willful intent to deceive or to be
9 2 deceived.
9 3 b. A cause of action for defamation, libel, slander, or
9 4 damage to reputation shall not arise against an employer
9 5 establishing a program of drug or alcohol testing in
9 6 accordance with this section unless all of the following
9 7 apply:
9 8 (1) The employer discloses the test results to a person
9 9 other than the employer, an authorized employee, agent, or
9 10 representative of the employer, the tested employee or the
9 11 tested applicant for employment, or an authorized agent or
9 12 representative of the tested employee or applicant.
9 13 (2) The test results disclosed incorrectly indicate the
9 14 presence of alcohol or drugs.
9 15 (3) The employer negligently discloses the results.
9 16 c. In any cause of action based upon a false positive test
9 17 result, all of the following conditions apply:
9 18 (1) The results of a drug or alcohol test conducted in
9 19 compliance with this section are presumed to be valid.
9 20 (2) An employer shall not be liable for monetary damages
9 21 if the employer's reliance on the false positive test result
9 22 was reasonable and in good faith.
9 23 12. CONFIDENTIALITY OF RESULTS - EXCEPTION.
9 24 a. Except as provided in paragraph "b", all communications
9 25 received by an employer relevant to employee or prospective
9 26 employee drug or alcohol test results, or otherwise received
9 27 through the employer's drug or alcohol testing program, are
9 28 confidential communications and shall not be used or received
9 29 in evidence, obtained in discovery, or disclosed in any public
9 30 or private proceeding, except in a proceeding related to an
9 31 action taken by an employer under this section or by an
9 32 employee under subsection 11.
9 33 b. An employee who is the subject of a drug or alcohol
9 34 test conducted under this section pursuant to an employer's
9 35 written policy and for whom a confirmed positive test result
10 1 is reported shall, upon written request, have access to any
10 2 records relating to the employee's drug or alcohol test,
10 3 including records of the laboratory where the testing was
10 4 conducted and any records relating to the results of any
10 5 relevant certification or review by a medical review officer.
10 6 13. CIVIL PENALTY. This section may be enforced through a
10 7 civil action.
10 8 a. A person who violates this section or who aids in the
10 9 violation of this section, is liable to an aggrieved employee
10 10 or prospective employee for affirmative relief including
10 11 reinstatement or hiring, with or without back pay, or any
10 12 other equitable relief as the court deems appropriate
10 13 including attorney fees and court costs.
10 14 b. When a person commits, is committing, or proposes to
10 15 commit, an act in violation of this section, an injunction may
10 16 be granted through an action in district court to prohibit the
10 17 person from continuing such acts. The action for injunctive
10 18 relief may be brought by an aggrieved employee or prospective
10 19 employee, the county attorney, or the attorney general.
10 20 In an action brought under this subsection alleging that an
10 21 employer has required or requested a drug or alcohol test in
10 22 violation of this section, the employer has the burden of
10 23 proving that the requirements of this section were met.
10 24 Sec. 2. EFFECTIVE DATE. This Act takes effect on the
10 25 thirtieth day following enactment.
10 26 EXPLANATION
10 27 This bill makes changes to Iowa's law governing drug and
10 28 alcohol testing of employees and prospective employees by
10 29 repealing current law and replacing it with a new Code
10 30 section.
10 31 The bill provides that the drug and alcohol testing
10 32 requirements established by the bill apply only to private
10 33 sector employers and excludes the state and its political
10 34 subdivisions, as well as Native-American tribes and the
10 35 federal government, from the definition of employer.
11 1 The bill governs the procedures for conducting a drug or
11 2 alcohol test and provides for the collection of samples, the
11 3 scheduling of tests, and the conduct of the drug or alcohol
11 4 test. The bill provides that the results of drug testing
11 5 shall be confirmed by a laboratory certified by the United
11 6 States department of health and human services under federal
11 7 law, by the department's substance abuse and mental health
11 8 services administration, or by the Iowa department of public
11 9 health. The bill also provides that any positive drug or
11 10 alcohol test shall be confirmed by a second test. The bill
11 11 also requires an employer to establish a written policy,
11 12 available to employees and prospective employees, governing
11 13 drug or alcohol testing. The written policy shall provide, if
11 14 applicable, a minimum level for a positive alcohol test result
11 15 and information about the employer's employee assistance
11 16 program, if applicable, or community services concerning
11 17 alcohol and drug abuse.
11 18 The bill allows unannounced drug or alcohol testing, and
11 19 testing for prospective employees, employees in safety-
11 20 sensitive positions, and employees both during and after drug
11 21 or alcohol rehabilitation. The bill also permits drug or
11 22 alcohol testing if there exists a reasonable suspicion that
11 23 the employee has engaged in illicit drug use or alcohol abuse,
11 24 has a substance abuse problem, or has violated the employer's
11 25 written substance abuse prevention policy. The bill allows
11 26 testing as provided by federal law and in response to work
11 27 accidents.
11 28 The bill also allows testing of samples collected for
11 29 deterrence and detection of possible illicit drug use or abuse
11 30 of alcohol or prescription drugs, the investigation of
11 31 possible individual employee impairment, the investigation of
11 32 workplace accidents, the maintenance of employee and public
11 33 safety, and the maintenance of productivity or security of
11 34 property or information of the employer.
11 35 The bill provides that an employer, as a result of a
12 1 positive drug or alcohol test, can take several employment
12 2 actions consistent with the employer's written policy. The
12 3 employer can require the employee to enroll in rehabilitation
12 4 or counseling, suspend the employee with or without pay,
12 5 terminate the employee, refuse to hire a prospective employee,
12 6 or take any other adverse employment action based on the
12 7 employer's written policy, including any collective bargaining
12 8 agreement. The bill does not require that the cost of any
12 9 rehabilitation services be covered by an employer's health
12 10 plan.
12 11 The bill also makes provisions governing the liability of
12 12 an employer. The bill provides that an employer shall not be
12 13 liable for actions taken in good faith based on a positive
12 14 drug or alcohol test, for failing to test for drugs and
12 15 alcohol or for failing to detect any specific drug or other
12 16 controlled substance or medical condition, for terminating or
12 17 suspending a drug and alcohol testing program or policy, or
12 18 for failing to take action relating to a false negative test
12 19 result. The bill provides that an employer shall be liable
12 20 for actions taken based upon a false positive test only if the
12 21 employer knew or clearly should have known the test was
12 22 incorrect and ignored the correct result because of a reckless
12 23 disregard for the truth. In addition, the bill also provides
12 24 that an employer is not liable for an action based on libel,
12 25 slander, or defamation unless certain additional requirements
12 26 are met, generally requiring a finding that an incorrect
12 27 positive test result was disclosed negligently. The bill
12 28 establishes that a drug or alcohol test conducted in
12 29 accordance with the bill is presumed valid and that an
12 30 employer is not liable for monetary damages if the employer's
12 31 reliance on a false positive test was reasonable and in good
12 32 faith. The bill provides, however, that if a person violates
12 33 a provision of this new Code section, that person is liable to
12 34 an aggrieved employee or prospective employee through a civil
12 35 action for damages or injunctive relief, as applicable.
13 1 The bill also provides for the confidentiality of test
13 2 results. However, the bill allows a tested employee to get
13 3 copies of any records of the employee's drug or alcohol test
13 4 if the test result was positive.
13 5 The bill takes effect 30 days after enactment.
13 6 LSB 1414HV 77
13 7 ec/jj/8
Text: HF00298 Text: HF00300 Text: HF00200 - HF00299 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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