The Perils and Pitfalls of Drug Testing in Iowa

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Iowa Code § 730.5 relates to drug and alcohol testing employees in Iowa. A careful reading of the statute would lead you to conclude that it may have been written after 100 people of very disparate backgrounds were locked in a room and told their only possible hope of ransom was to turn out a statute relating to drug testing. What we got as their escape plan was Iowa Code §730.5. Conversely, you could assume that it is a statute which purports to allow both drug and alcohol testing in Iowa but punishes employers for testing.

The statute is exceedingly complex and states that a wide variety of conditions must be met before testing is allowed. This includes various requirements such as that the employer publish and publicize its testing policies, that very specific notices be given when a positive test is involved, that only a certified lab may be used. In the event of a positive alcohol test, the employer must pay, in some circumstances, for the rehabilitation of the employee.

When creating drug testing policies, we weigh the risks and benefits and in many instances have found that the benefits of drug testing when there has been an injury to the employee or pre-employment testing can outweigh the inherent risks of the statute. The statute specifically allows testing in the event that there has been a reportable injury.  Many employers choose to do post-accident testing as part of their worker's compensation programs and in compliance with specific worker's compensation requirements. However, the definition of a "reportable" incident is not always clear. On September 6, 2012, the Iowa Court of Appeals added to this definition in the Amanda Skipton v. S&J Tube, Inc., case. In this instance, Ms. Skipton was an employee of S&J Tube and worked in a job that required repetitive use of her hands, wrists and arms. At some point in time she developed pain in her left wrist resulting in a report of injury to the Worker's Compensation. Ms. Skipton was diagnosed with carpal tunnel syndrome, treated and the worker's compensation case was eventually closed in 2007. In September of 2007, Ms. Skipton was again seen by a physician who noted she had carpal tunnel syndrome and specifically stated it was "more symptomatic recently". Ms. Skipton also developed a nodule on her left wrist. Ms. Skipton continued to seek medical treatment and eventually under the company's drug testing policy was tested for drugs in conjunction with the treatment of her wrist. The drug test was positive for cocaine and Ms. Skipton was terminated. During this termination process she was verbally given information regarding her right to a confirmatory re-test but was not given specific information as to the cost of the re-test, only estimates. Ms. Skipton eventually filed suit alleging that she had been wrongfully terminated from her employment and that the employer had violated §730.5.

Several important issues were addressed in this case, four of which have particular pertinence to the construction and use of any drug testing policy.

1. A cumulative injury is not an "accidental injury" under Iowa Code §730.5 The Court specifically sites to prior case law, including State v. Carpenter, 334 N.W. 2d 137 (Iowa 1983), stating that an accident, a triggering event in the statute, is a "sudden event or change occurring without intent or volition, through carelessness, unawareness, ignorance or combination of causes and producing an unfortunate result". The Court therefore determines that a cumulative injury or trauma does not qualify as an accident and therefore would not allow a drug or alcohol test to be initiated

2. You have to do it all and in the right order. No prizes for coming close. In this instance Ms. Skipton was verbally provided with information regarding her right to a re-test and costs.  However, she was never sent a certified letter and the information provided did not specifically set out the costs of the re-test. Although the information had been given to Ms. Skipton, it had not been given in the right way or the right format and therefore it was a violation of Iowa Code §730.5.

3. Good Faith is not much of a defense. Iowa Code §730.5 provides a good faith defense against lawsuits based on the statute as long as the actions taken on a positive test are done in good faith. However, in the Skipton case the Court determines that because the employer did not follow its' own internal policies and in all likelihood its' policies were not in full compliance with the statute, good faith simply could not be shown. So, in this instance, getting it wrong, even unintentionally, means the good faith defense is not available.

4. The Court does not care if your employee is drunk or drugged. Note, that in this instance Ms. Skipton had initially tested positive for drugs, specifically cocaine. She even made statements that she was not getting a confirmatory test because it would just come up positive.  Many people would take this to be an admission that she had been using cocaine. Ms. Skipton did apparently contest she "was under the influence." The Court did not care whether or not Ms. Skipton was incapacitated based on the use of an illegal drug, it cared whether or not the employer had specifically hit every mark and jumped through every hoop of the statute in order to get a valid drug test. Being right simply isn't enough, you have to be right in the right way.

Published In: Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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