Drug Testing: Dot Every "i" and Cross Every "T" -

Dentons Davis Brown

It seems unlikely that anyone who could pass a drug test would disagree that Iowa’s drug testing statute is complicated and difficult to administer. Iowa Code § 730.5, which relates to private sector drug and alcohol testing, is a strict liability statute. In other words, as an employer, you have to dot every “i” and cross every “t,” understand all the rules and follow them precisely, or you are in trouble.

Even if the employee tests positive for illegal drugs the employer is required, among other things, to provide privacy for the collection of samples, a reasonable sample collection process and very clear notice and direction regarding testing.  Urine samples have to be split into two components with the second portion of the sample sufficient to “permit a second independent confirmatory test.” 

The statute, § 730.5 (c) (2)(f)(3), does allow for the collection of oral fluids but generally the collection of blood, which would be considered to be an invasion of the body, is prohibited.  From a practical standpoint, this renders the statute incredibly complex for an employer.

This can be even more difficult in the event that a disability is present, which may result in a skewing of the sample or inability to give a sample. The statute makes a cursory attempt at accommodation by stating that employees or prospective employees providing samples have a right to provide a list of medications to the medical review officer to address issues that might alter the test.  However, what happens when the employee can’t give a sample due to kidney issues or other medical conditions?

The EEOC, Maryland Division recently explored a similar matter by filing suit against K-Mart Corp. alleging a violation of the American’s with Disabilities Act when K-Mart would not allow a prospective employee, Lorenzo Cook, to provide an alternate to a urine sample.

Mr. Cook had alleged that he was unable to provide a urine sample for testing due to his dialysis and kidney disease.  Mr. Cook apparently agreed to take any other form of test, including blood sampling or hair, but K-Mart required urine testing.

Mr. Cook was subsequently denied the position of customer service representative, as he could not complete the drug urine test. As part of the Consent Decree entered in Maryland, K-Mart will pay $102,000 fine and will agree to not violate the American’s with Disabilities Act by, at least in part, broadening its drug testing policy to include reasonable accommodations for employees or applicants as part of its ongoing testing process.

It should also be noted that the EEOC has stated that it has settled a number of other claims on similar drug testing grounds, including a claim against Walgreens Pharmacy and at least two other businesses where employees or prospective employees were unable to take a urinalysis test under this type of circumstance.

As an employer what does that mean?

It means many employers who may use a quick test on an initial basis while collecting the sample, need to stock alternate tests as a part of the accommodation process, or have a certified lab with alternate tests available to do even initial testing.

It could also mean the availability of an oral swab test rather than urinalysis. But what happens if the employee’s condition results in dry mouth or similar issues making saliva tests significantly more difficult? 

Dependent upon the medical condition it could also result in the need for a statement from the prospective employee’s physician regarding the employee’s actual disability, which would trigger the need for an accommodation discussion or review for a second opinion. 

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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