Dickinson, Mackaman, Tyler & Hagen, P.C.

At the Dickinson law firm, we have guided many employers through developing policies and procedures regarding employee and job applicant drug and alcohol testing.

This includes private sector drug and alcohol testing under Iowa Code § 730.5, federal FMCSA testing for drivers and those in safety sensitive positions, or public sector employee drug and alcohol testing in circumstances that satisfy federal and state constitutional concerns regarding unreasonable searches and seizures, as well as due process.

The Problem

Regardless of the setting, our clients have occasionally expressed concerns about attempts employees and job applicants make to circumvent the testing process. We recognized a lack of serious deterrents to cheating on drug and alcohol tests in the laws that currently apply.

For instance, job applicants who got caught using adulterated or synthetic samples could simply walk out of the collection site, free to try again with the next prospective employer.

Employees who were caught cheating were likely fired, but could always work elsewhere.

Drivers under the federal drug testing program who were found to have cheated would be unable to return to safety sensitive functions with that employer until satisfying return to duty requirements. In addition, the employee could be reported to the CDL Drug and Alcohol Clearinghouse under 49 CFR Part 382, which can limit their ability to obtain future employment for up to five years. However, even there, the state agencies that license commercial drivers weren’t required to act upon the violations reported to the federal Clearinghouse. Federal regulations have been proposed to close that loophole, but they are still in the rulemaking process and not final. This session, the Iowa Legislature acted.

The Answer in HF 283

House File 283 creates new criminal offenses in Chapter 715A relating to urine-based drug tests administered by both public and private sector employers in Iowa. It was introduced on January 28, passed the House on February 16, and passed the Senate on February 17. It seems likely to be signed by the Governor very soon, and it may be signed by the time you read this blog post.

HF 283 makes it illegal to “manufacture, market, sell, distribute, use, or possess synthetic urine or a urine additive for the purpose of defrauding a drug or alcohol test” in Iowa. It carves out an exception relating to educational and law enforcement use of such products. The bill defines “urine additives” as “any substance that is designed to be added to human urine for the purpose of defrauding a drug or alcohol test”. “Synthetic urine” is defined as “any substance that is designed to simulate the composition, chemical properties, physical appearance, or physical properties of human urine for the purpose of defrauding a drug or alcohol test”.

The bill also creates two other crimes relating to the attempted manipulation of employee-related drug testing. It prohibits the “knowing” use of the “urine of another person for the purpose of defrauding a drug or alcohol test”, and the “knowing” use of “the person’s own urine expelled or withdrawn prior to the collection of a urine sample from the person for a drug or alcohol test for the purpose of defrauding a drug or alcohol test”.

Our firm once had a client in a less-densely populated Iowa county which received a call from a medical professional to alert the client that the employee who had just been seen for a drug test was very sick—a conclusion the medical professional reached based upon the physical characteristics of the specimen provided, which the MRO subsequently determined after testing was “inconsistent with human urine”. That unique type of adulteration is also not addressed in the new legislation.

Privacy, Reporting, and the Criminal Penalties

Significant privacy concerns relating to employee and job applicant alcohol and drug testing have resulted in severe restrictions on when and how results can be utilized, even ones resulting from adulterated samples. As just one example, Iowa Code 730.5(14) creates civil penalties and remedies against employers, laboratories, and medical review officers who disclose or misuse information relating to private sector employee drug testing.

Strict rules regarding confidentiality can make it difficult to report violations to law enforcement, even when they occur. House File 283 appears to acknowledge and even address those confidentiality concerns, noting: “this section shall not be construed to encourage, conflict with, or otherwise interfere with the preemption of any federal, state, or local laws or regulations related to drug and alcohol testing procedures and confidentiality.”

Similarly, Iowa Code 730.5(13)(a) states:

All communications received by an employer relevant to employee or prospective employee drug or alcohol test results, or otherwise received through the employer's drug or alcohol testing program, are confidential communications and shall not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceeding, except as otherwise provided or authorized by this section.”

That doesn’t appear to provide much room for an employer providing documentation regarding conduct made criminal by the statute.

In addition, the bill says “a person who collects a urine sample from another person for a drug or alcohol test, having knowledge or a reasonable suspicion that the other person has used synthetic urine or a urine additive to defraud the test … may report such information to law enforcement authorities”, except where otherwise prohibited by law. However, that exception only applies to the collector of the sample, not any other person with knowledge. As a practical matter, whether a particular specimen contains synthetic urine or a urine additive is a question of fact which is no doubt best determined by a laboratory testing process. It is unclear why the legislation focuses on the specimen collector.

In any event, employers who outsource the collection of specimens for drug or alcohol a third party are clearly not given permission to report an applicant or employee’s use of urine additives or synthetic urine. [We recommend employers outsource specimen collection, unless they are a hospital, medical clinic, or have nurses on site.] Also, the reporting exception only applies to reports regarding the use of synthetic urine and urine additives, and not the other two new offenses in Chapter 715A, urine substitution or pre-collection and use.

The offenses created by House File 283 are punishable as a simple misdemeanors for the first offense, and a serious misdemeanor for the second and subsequent offenses. Reviewing courts may order substance abuse evaluation and treatment in addition to or in lieu of other statutory penalties.

Drug Tests Using Specimens Other Than Urine

If your operation utilizes other types of samples for drug and alcohol testing, including breath, saliva, or blood (in the very limited circumstances permitted under applicable law), House File 283 does not explicitly apply to you. However, it is worth your attention because it may be the first step to additional changes to Iowa’s drug and alcohol testing regime that may impact you in the future.

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