Most Iowa employers know that if they want to conduct drug or alcohol testing of their employees or applicants, they must have a written policy in place that complies with Iowa’s drug-free workplace law. However, an employer’s obligations do not end there. The Iowa Court of Appeals (the Court) recently had an opportunity to review an employer’s drug testing policy and procedures, and its findings serve as a strong reminder that employers must follow their policy each time they want to test, be aware of the procedures related to that policy and complete the required training.
In the early phases of the pending lawsuit, the Court was asked to consider whether the employer’s drug and alcohol testing process substantially complied with Iowa law. Although the Court’s recent opinion did not render a final decision on the lawsuit itself, it did shed helpful light on the importance of procedural and administrative requirements in the statute and in policies.
Selection of Employees to be Tested
One aspect of the Court’s review included random or unannounced drug testing and how an employer selects which employees will be tested. The law is clear that employers who choose to perform such testing must follow specific requirements when selecting employees. First, random or unannounced testing is:
“testing for the purposes of detecting drugs or alcohol which is conducted on a periodic basis, without advance notice of the test to employees … subject to testing prior to the day of testing, and without individualized suspicion.”
When selecting which employees must participate in the testing, the statute provides additional requirements:
“The selection of employees to be tested from the pool of employees subject to testing shall be done based on a neutral and objective selection process by an entity independent from the employer and shall be made by a computer-based random number generator that is matched with employees’ social security numbers, payroll identification numbers or other comparable identifying numbers in which each member of the employee population subject to testing has an equal chance of selection for initial testing, regardless of whether the employee has been selected or tested previously.”
Finally, the statute further identifies three pools of employees that could be subject to testing, all of which exclude “employees who are not scheduled to be at work at the time the testing is to be conducted” or “who have been excused from work pursuant to the employer’s work policy prior to the time the testing is announced to employees.” In the case at hand, the Court found that the employer had previously provided their vendor with a master list of all employees and the vendor used that list to generate the list of fifteen employees who would be tested, plus a list of eight alternates.
Nine employees identified for testing were off work the day of the test and the plaintiff, who had been last on the list of alternates, was selected for testing. Because the employer made no effort to edit the master list to exclude “employees who are not scheduled to work,” the Court could not conclude the employer was in compliance with the law. The Court did not, however, rule on the plaintiff’s challenge to the use of a list of alternate employees.
Supervisor Training Requirements
A second aspect of the decision involved supervisor training. Iowa law requires the following in order to conduct drug or alcohol testing:
“an employer shall require supervisory personnel of the employer involved with drug or alcohol testing under this section to attend a minimum of two hours of initial training and to attend, on an annual basis thereafter, a minimum of one hour of subsequent training.”
In this case, the employer records showed the supervisor involved attended only one hour of initial training rather than two hours, although the employer presented information that the supervisor had received additional initial training from their predecessor. The statute also requires that supervisory training include specific topics:
“The training shall include but is not limited to information concerning the recognition of evidence of employee alcohol and other substance use disorder, the documentation and corroboration of employee alcohol and other substance use disorder and the referral of employees with a substance use disorder to the employee assistance program or to the resource file.”
The Court found that the employer’s records demonstrated that the initial and ongoing training did not cover the topics required by the statute.
Uniform Policy on Discipline
Finally, the Court spent significant time examining the employer’s policy to determine whether the required language concerning discipline was included. The statute is very clear:
“[The] employer’s written policy shall provide uniform requirements for what disciplinary or rehabilitative actions an employer shall take against an employee or prospective employee upon receipt of a confirmed positive test result for drugs or alcohol or upon the refusal of the employee or prospective employee to provide a testing sample.” (emphasis added)
In this instance, the employer’s policy provided that employees “may be disciplined or terminated” and the employer “may take the following actions” and listed suspension, termination, refusal to hire, other adverse employment action, rehabilitation. With this discretion included in the policy, the Court could not conclude the policy complied with the statute. The Court went further to discuss instances where supervisors were permitted to make their own determination of how to respond to employees whose samples were thought to be tainted or inadequate, demonstrating the policy was not uniform in its application.
Employer Drug and Alcohol Testing Takeaways
Once you have adopted your drug and alcohol testing policy and protocols, your job is not over; compliance with the law is an ongoing obligation. Your Fredrikson attorneys can assist you with these obligations, but in the meantime, consider these steps:
- Review your drug and alcohol testing policy language regarding discipline – the language must be uniform and not discretionary.
- Review your supervisory training logs for both the required number of hours and also the coverage of such training – and be sure to maintain detailed records of completed training.
- Whatever type of drug or alcohol testing you perform, make sure you understand the protocols required for each type of testing. The most complicated types are unannounced and reasonable suspicion testing.
- For unannounced or random testing: the statute identifies three distinct pools of employees from which the employer may select employees to be tested, keeping an eye on where your safety-sensitive positions fall. Regardless of which pool the employer uses, the process regarding absent employees outlined above must be followed.
- For reasonable suspicion testing: It must be “based upon evidence that an employee is using or has used alcohol or other drugs in violation of the employer’s written policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience.” Don’t forget to document these findings.
The statute further explains that “facts and inferences may be based upon, but not limited to, any of the following: (1) Observable phenomena while at work such as direct observation of alcohol or drug use or abuse or of the physical symptoms or manifestations of being impaired due to alcohol or other drug use. (2) Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance. (3) A report of alcohol or other drug use provided by a reliable and credible source. (4) Evidence that an individual has tampered with any drug or alcohol test during the individual’s employment with the current employer. (5) Evidence that an employee has caused an accident while at work which resulted in an injury to a person for which injury, if suffered by an employee, a record or report could be required under [worker’s compensation], or resulted in damage to property, including to equipment, in an amount reasonably estimated at the time of the accident to exceed one thousand (6) Evidence that an employee has manufactured, sold, distributed, solicited, possessed, used or transferred drugs while working or while on the employer’s premises or while operating the employer’s vehicle, machinery or equipment.”
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