In the last two sessions, the Iowa legislature has amended Iowa’s private sector drug testing law to give employers additional tools to combat employee substance abuse. In last year’s session, the legislature amended the law to allow employers to use hair follicle testing for pre-employment drug screens. Prior to the amendment, the law allowed only testing using urine, blood, or oral fluid.
In the 2018 session, the legislature again amended the law to lower the threshold at which an employer may take action based upon an employee’s positive alcohol test. Effective July 1, an employer may take action if the employee has a blood alcohol concentration of at least .02% . The existing standard is .04%.
The amendment allowing hair follicle testing is important because testing hair follicles is a more effective in detecting long term drug use than is testing of bodily fluids. Many drugs are not detectable in urine 72 hours after using the drug, where the hair follicle testing can detect drug use for up to 90 days. Using the hair follicle test for pre-employment testing will allow employers to screen out potential employees who may be longer term drug users but in the past were able to avoid detection by not using a few days before the drug test.
The lower BAC threshold in the 2018 amendment allows employers to enforce more readily a “no tolerance” policy on alcohol related impairment. For many people, it takes only one drink to reach the .02 threshold, where it may take 2 or more to reach .04.
Even with these new employer friendly amendments, the Iowa drug testing law remains one of the most difficult laws in the country to administer because of its detailed procedures and employee safeguards. Discipline or termination of an employee for a positive drug or alcohol test, without strict compliance with these procedural safeguards, presents a significant litigation risk.
The statutory remedies for violating the law include reinstatement (or hiring if the person is an applicant subject to a pre-employment screen), back pay, and attorney’s fees. In one case, the employer was found to have violated the notice provisions of the law when it hand-delivered the results of the drug test to the employee instead of sending in by certified mail. The court also ruled the employer did not have authority to conduct a drug test as part of the employee’s doctor visit to treat for work related carpal tunnel syndrome, because the injury did not occur as the result of an “accident.” The employee was awarded $22,805 in back pay and $13,275 in attorney’s fees. See Skipton v. S&J Tube, Inc., 822 N.W.2d 122 (Iowa Ct. App. 2012).
Another potential legal claim for violation of the drug testing law is one for wrongful discharge in violation of public policy. The additional risk of a common law claim based upon violation of the drug testing statute is that a plaintiff has potential remedies over and above those the statute allows, including to damages for emotional distress and punitive damages. In McVey v. National Organization Service, Inc (Iowa 2005), the Iowa Supreme Court allowed an employee to sue for the employer’s failure to strictly comply with the drug testing law, but did not recognize the claim as a public policy claim, which limited the remedies to those in the statute. However, a trial court in Delaware County recently allowed a public policy claim based upon violation of the drug testing law. The employer in that case admitted it did not strictly comply with the drug testing law in connection with an employee termination, but contended the employee was limited to statutory remedies. The trial court not only disagreed with the employer’s position, but granted the plaintiff summary judgment based upon the employer’s admission it violated the statute. The jury award was not significant in the grand scheme of things ($57,000 economic damages, $12,000 emotional distress). But, this ruling nonetheless highlights that the employer benefits that came with the legislature’s amendments do not eliminate legal risks for failure to strictly comply with the law.