730.1 PUNISHMENT.
If any person, agent, company, or corporation, after having
discharged any employee from service, shall prevent or attempt to
prevent, by word or writing of any kind, such discharged employee
from obtaining employment with any other person, company, or
corporation, except by furnishing in writing on request a truthful
statement as to the cause of the person's discharge, such person,
agent, company, or corporation shall be guilty of a serious
misdemeanor and shall be liable for all damages sustained by any such
person. Section History: Early Form
[C97, § 5027; C24, 27, 31, 35, 39, § 13253; C46, 50, 54, 58,
62, 66, 71, 73, 75, 77, § 736.1; C79, 81, § 730.1]
Referred to in § 730.2
730.2 BLACKLISTING EMPLOYEES -- TREBLE DAMAGES.
If any railway company or other company, partnership, or
corporation shall authorize or allow any of its or their agents to
blacklist any discharged employee, or attempt by word or writing or
any other means whatever to prevent such discharged employee, or any
employee who may have voluntarily left said company's service, from
obtaining employment with any other person or company, except as
provided for in section 730.1, such company or partnership shall be
liable in treble damages to such employee so prevented from obtaining
employment. Section History: Early Form
[C97, § 5028; C24, 27, 31, 35, 39, § 13254; C46, 50, 54, 58,
62, 66, 71, 73, 75, 77, § 736.2; C79, 81, § 730.2] Section History: Recent Form
2008 Acts, ch 1032, §106
730.3 FALSE CHARGES CONCERNING HONESTY.
Every person who shall by any letter, mark, sign, or designation
whatever, or by any verbal statement, falsely and without probable
cause, report to any railroad or any other company or corporation, or
to any person or firm, or to any of the officers, servants, agents,
or employees of any such corporation, person, or firm, that any
conductor, crew member, engineer, stoker, station agent, or any
employee of such railroad company, corporation, person, or firm has
received any money or thing of value for the transportation of
persons or property or for other service for which the person has not
accounted to such corporation, person, or firm, or shall falsely and
without probable cause report that any conductor, crew member,
engineer, stoker, station agent, or other employee of any railroad
company, corporation, firm, or person, neglected, failed, or refused
to collect any money or ticket for transportation of persons or
property or other service when it was their duty so to do, shall, on
conviction, be guilty of a simple misdemeanor. Section History: Early Form
[SS15, § 5028-w1; C24, 27, 31, 35, 39, § 13255; C46, 50, 54,
58, 62, 66, 71, 73, 75, 77, § 736.3; C79, 81, § 730.3]
730.4 POLYGRAPH EXAMINATION PROHIBITED.
1. As used in this section, "polygraph examination" means any
procedure which involves the use of instrumentation or a mechanical
or electrical device to enable or assist the detection of deception,
the verification of truthfulness, or the rendering of a diagnostic
opinion regarding either of these, and includes a lie detector or
similar test.
2. An employer shall not as a condition of employment, promotion,
or change in status of employment, or as an express or implied
condition of a benefit or privilege of employment, knowingly do any
of the following:
a. Request or require that an employee or applicant for
employment take or submit to a polygraph examination.
b. Administer, cause to be administered, threaten to
administer, or attempt to administer a polygraph examination to an
employee or applicant for employment.
c. Request or require that an employee or applicant for
employment give an express or implied waiver of a practice prohibited
by this section.
3. a. Subsection 2 does not apply to the state or a political
subdivision of the state when in the process of selecting any of the
following:
(1) A candidate for employment as a peace officer.
(2) A candidate for employment as a corrections officer.
(3) An applicant for a position with a law enforcement agency of
a political subdivision of the state when the applicant is being
considered for a position in which the employee filling the position
has direct access to prisoner funds, any other cash assets, and
confidential information.
b. Polygraph examinations under this subsection shall adhere
to the published antidiscrimination policy of the state or political
subdivision conducting the examination.
4. An employee who acted in good faith shall not be discharged,
disciplined, or discriminated against in any manner for filing a
complaint or testifying in any proceeding or action involving
violations of this section. An employee discharged, disciplined, or
otherwise discriminated against in violation of this section shall be
compensated by the employer in the amount of any loss of wages and
benefits arising out of the discrimination and shall be restored to
the employee's previous position of employment.
5. This section may be enforced through a civil action.
a. A person who violates this section or who aids in the
violation of this section is liable to an aggrieved employee or
applicant for employment for affirmative relief including
reinstatement or hiring, with or without back pay, or any other
equitable relief as the court deems appropriate including attorney
fees and court costs.
b. When a person commits, is committing, or proposes to
commit, an act in violation of this section, an injunction may be
granted through an action in district court to prohibit the person
from continuing such acts. The action for injunctive relief may be
brought by an aggrieved employee or applicant for employment, the
county attorney, or the attorney general.
A person who in good faith brings an action under this subsection
alleging that an employer has required or requested a polygraph
examination in violation of this section shall establish that
sufficient evidence exists upon which a reasonable person could find
that a violation has occurred. Upon proof that sufficient evidence
exists upon which a finding could be made that a violation has
occurred as required under this paragraph, the employer has the
burden of proving that the requirements of this section were met.
6. A person who violates this section commits a simple
misdemeanor. In addition to any other penalties, the punishment
imposed for a violation of this section shall include assessment of a
fine of not less than two hundred fifty dollars. Section History: Recent Form
83 Acts, ch 86, § 1--3; 88 Acts, ch 1227, §1; 99 Acts, ch 153,
§23; 2000 Acts, ch 1059, §1
Referred to in § 80F.1
730.5 PRIVATE SECTOR DRUG-FREE WORKPLACES.
1. Definitions. As used in this section, unless the context
otherwise requires:
a. "Alcohol" means ethanol, isopropanol, or methanol.
b. "Confirmed positive test result" means, except for alcohol
testing conducted pursuant to subsection 7, paragraph "f",
subparagraph (2), the results of a blood, urine, or oral fluid test
in which the level of controlled substances or metabolites in the
specimen analyzed meets or exceeds nationally accepted standards for
determining detectable levels of controlled substances as adopted by
the federal substance abuse and mental health services
administration. If nationally accepted standards for oral fluid
tests have not been adopted by the federal substance abuse and mental
health services administration, the standards for determining
detectable levels of controlled substances for purposes of
determining a confirmed positive test result shall be the same
standard that has been established by the federal food and drug
administration for the measuring instrument used to perform the oral
fluid test.
c. "Drug" means a substance considered a controlled substance
and included in schedule I, II, III, IV, or V under the federal
Controlled Substances Act, 21 U.S.C. § 801 et seq.
d. "Employee" means a person in the service of an employer in
this state and includes the employer, and any chief executive
officer, president, vice president, supervisor, manager, and officer
of the employer who is actively involved in the day-to-day operations
of the business.
e. "Employer" means a person, firm, company, corporation,
labor organization, or employment agency, which has one or more
full-time employees employed in the same business, or in or about the
same establishment, under any contract of hire, express or implied,
oral or written, in this state. "Employer" does not include the
state, a political subdivision of the state, including a city,
county, or school district, the United States, the United States
postal service, or a Native American tribe.
f. "Good faith" means reasonable reliance on facts, or that
which is held out to be factual, without the intent to be deceived,
and without reckless, malicious, or negligent disregard for the
truth.
g. "Medical review officer" means a licensed physician,
osteopathic physician, chiropractor, nurse practitioner, or physician
assistant authorized to practice in any state of the United States,
who is responsible for receiving laboratory results generated by an
employer's drug or alcohol testing program, and who has knowledge of
substance abuse disorders and has appropriate medical training to
interpret and evaluate an individual's confirmed positive test result
together with the individual's medical history and any other relevant
biomedical information.
h. "Prospective employee" means a person who has made
application, whether written or oral, to an employer to become an
employee.
i. "Reasonable suspicion drug or alcohol testing" means drug
or alcohol testing 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. For purposes of this paragraph, 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
chapter 88, or resulted in damage to property, including to
equipment, in an amount reasonably estimated at the time of the
accident to exceed one thousand dollars.
(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.
j. "Safety-sensitive position" means a job wherein an
accident could cause loss of human life, serious bodily injury, or
significant property or environmental damage, including a job with
duties that include immediate supervision of a person in a job that
meets the requirement of this paragraph.
k. "Sample" means such sample from the human body capable of
revealing the presence of alcohol or other drugs, or their
metabolites, which shall include only urine, saliva, breath, and
blood. However, "sample" does not mean blood except as
authorized pursuant to subsection 7, paragraph "l".
l. "Unannounced drug or alcohol testing" means testing for
the purposes of detecting drugs or alcohol which is conducted on a
periodic basis, without advance notice of the test to employees,
other than employees whose duties include responsibility for
administration of the employer's drug or alcohol testing program,
subject to testing prior to the day of testing, and without
individualized suspicion. 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. The random selection process shall be conducted through
a computer program that records each selection attempt by date, time,
and employee number.
2. Applicability. This section does not apply to drug or
alcohol tests conducted on employees required to be tested pursuant
to federal statutes, federal regulations, or orders issued pursuant
to federal law. In addition, an employer, through its written
policy, may exclude from the pools of employees subject to
unannounced drug or alcohol testing pursuant to subsection 8,
paragraph "a", employee populations required to be tested as
described in this subsection.
3. Testing optional. This section does not require or create
a legal duty on an employer to conduct drug or alcohol testing and
the requirements of this section shall not be construed to encourage,
discourage, restrict, limit, prohibit, or require such testing. In
addition, an employer may implement and require drug or alcohol
testing at some but not all of the work sites of the employer and the
requirements of this section shall only apply to the employer and
employees who are at the work sites where drug or alcohol testing
pursuant to this section has been implemented. A cause of action
shall not arise in favor of any person against an employer or agent
of an employer based on the failure of the employer to establish a
program or policy on substance abuse prevention or to implement any
component of testing as permitted by this section.
4. Testing as condition of employment -- requirements. To
the extent provided in subsection 8, an employer may test employees
and prospective employees for the presence of drugs or alcohol as a
condition of continued employment or hiring. An employer shall
adhere to the requirements of this section concerning the conduct of
such testing and the use and disposition of the results of such
testing.
5. Collection of samples. In conducting drug or alcohol
testing, an employer may require the collection of samples from its
employees and prospective employees, and may require presentation of
reliable individual identification from the person being tested to
the person collecting the samples. Collection of a sample shall be
in conformance with the requirements of this section. The employer
may designate the type of sample to be used for this testing.
6. Scheduling of tests.
a. Drug or alcohol testing of employees conducted by an
employer shall normally occur during, or immediately before or after,
a regular work period. The time required for such testing by an
employer shall be deemed work time for the purposes of compensation
and benefits for employees.
b. An employer shall pay all actual costs for drug or alcohol
testing of employees and prospective employees required by the
employer.
c. An employer shall provide transportation or pay reasonable
transportation costs to employees if drug or alcohol sample
collection is conducted at a location other than the employee's
normal work site.
7. Testing procedures. All sample collection and testing for
drugs or alcohol under this section shall be performed in accordance
with the following conditions:
a. The collection of samples shall be performed under
sanitary conditions and with regard for the privacy of the individual
from whom the specimen is being obtained and in a manner reasonably
calculated to preclude contamination or substitution of the specimen.
If the sample collected is urine, procedures shall be established to
provide for individual privacy in the collection of the sample unless
there is a reasonable suspicion that a particular individual subject
to testing may alter or substitute the urine specimen to be provided,
or has previously altered or substituted a urine specimen provided
pursuant to a drug or alcohol test. For purposes of this paragraph,
"individual privacy" means a location at the collection site
where urination can occur in private, which has been secured by
visual inspection to ensure that other persons are not present, which
provides that undetected access to the location is not possible
during urination, and which provides for the ability to effectively
restrict access to the location during the time the specimen is
provided. If an individual is providing a urine sample and
collection of the urine sample is directly monitored or observed by
another individual, the individual who is directly monitoring or
observing the collection shall be of the same gender as the
individual from whom the urine sample is being collected.
b. Collection of a urine sample for testing of current
employees shall be performed so that the specimen is split into two
components at the time of collection in the presence of the
individual from whom the sample or specimen is collected. The second
portion of the specimen or sample shall be of sufficient quantity to
permit a second, independent confirmatory test as provided in
paragraph "i". The sample shall be split such that the primary
sample contains at least thirty milliliters and the secondary sample
contains at least fifteen milliliters. Both portions of the sample
shall be forwarded to the laboratory conducting the initial
confirmatory testing. In addition to any requirements for storage of
the initial sample that may be imposed upon the laboratory as a
condition for certification or approval, the laboratory shall store
the second portion of any sample until receipt of a confirmed
negative test result or for a period of at least forty-five calendar
days following the completion of the initial confirmatory testing, if
the first portion yielded a confirmed positive test result.
c. Sample collections shall be documented, and the procedure
for documentation shall include the following:
(1) Samples, except for samples collected for alcohol testing
conducted pursuant to paragraph "f", subparagraph (2), shall be
labeled so as to reasonably preclude the possibility of
misidentification of the person tested in relation to the test result
provided, and samples shall be handled and tracked in a manner such
that control and accountability are maintained from initial
collection to each stage in handling, testing, and storage, through
final disposition.
(2) An employee or prospective employee shall be provided an
opportunity to provide any information which may be considered
relevant to the test, including identification of prescription or
nonprescription drugs currently or recently used, or other relevant
medical information. To assist an employee or prospective employee
in providing the information described in this subparagraph, the
employer shall provide an employee or prospective employee with a
list of the drugs to be tested.
d. Sample collection, storage, and transportation to the
place of testing shall be performed so as to reasonably preclude the
possibility of sample contamination, adulteration, or
misidentification.
e. All confirmatory drug testing shall be conducted at a
laboratory certified by the United States department of health and
human services' substance abuse and mental health services
administration or approved under rules adopted by the Iowa department
of public health.
f. Drug or alcohol testing shall include confirmation of any
initial positive test results. An employer may take adverse
employment action, including refusal to hire a prospective employee,
based on a confirmed positive test result for drugs or alcohol.
(1) For drug or alcohol testing, except for alcohol testing
conducted pursuant to subparagraph (2), confirmation shall be by use
of a different chemical process than was used in the initial screen
for drugs or alcohol. The confirmatory drug or alcohol test shall be
a chromatographic technique such as gas chromatography/mass
spectrometry, or another comparably reliable analytical method.
(2) Notwithstanding any provision of this section to the
contrary, alcohol testing, including initial and confirmatory
testing, may be conducted pursuant to requirements established by the
employer's written policy. The written policy shall include
requirements governing evidential breath testing devices, alcohol
screening devices, and the qualifications for personnel administering
initial and confirmatory testing, which shall be consistent with
regulations adopted as of January 1, 1999, by the United States
department of transportation governing alcohol testing required to be
conducted pursuant to the federal Omnibus Transportation Employee
Testing Act of 1991.
(3) Notwithstanding any provision of this section to the
contrary, collection of an oral fluid sample for testing shall be
performed in the presence of the individual from whom the sample or
specimen is collected. The specimen or sample shall be of sufficient
quantity to permit a second, independent, confirmatory test as
provided in paragraph "i". In addition to any requirement for
storage of the initial sample that may be imposed upon the laboratory
as a condition for certification or approval, the laboratory shall
store the unused portion of any sample until receipt of a confirmed
negative test result or for a period of at least forty-five calendar
days following the completion of the initial confirmatory testing, if
the portion yielded a confirmed positive test result.
g. A medical review officer shall, prior to the results being
reported to an employer, review and interpret any confirmed positive
test results, including both quantitative and qualitative test
results, to ensure that the chain of custody is complete and
sufficient on its face and that any information provided by the
individual pursuant to paragraph "c", subparagraph (2), is
considered. However, this paragraph shall not apply to alcohol
testing conducted pursuant to paragraph "f", subparagraph (2).
h. In conducting drug or alcohol testing pursuant to this
section, the laboratory, the medical review officer, and the employer
shall ensure, to the extent feasible, that the testing only measure,
and the records concerning the testing only show or make use of
information regarding, alcohol or drugs in the body.
i. (1) If a confirmed positive test result for drugs or
alcohol for a current employee is reported to the employer by the
medical review officer, the employer shall notify the employee in
writing by certified mail, return receipt requested, of the results
of the test, the employee's right to request and obtain a
confirmatory test of the second sample collected pursuant to
paragraph "b" at an approved laboratory of the employee's choice,
and the fee payable by the employee to the employer for reimbursement
of expenses concerning the test. The fee charged an employee shall
be an amount that represents the costs associated with conducting the
second confirmatory test, which shall be consistent with the
employer's cost for conducting the initial confirmatory test on an
employee's sample. If the employee, in person or by certified mail,
return receipt requested, requests a second confirmatory test,
identifies an approved laboratory to conduct the test, and pays the
employer the fee for the test within seven days from the date the
employer mails by certified mail, return receipt requested, the
written notice to the employee of the employee's right to request a
test, a second confirmatory test shall be conducted at the laboratory
chosen by the employee. The results of the second confirmatory test
shall be reported to the medical review officer who reviewed the
initial confirmatory test results and the medical review officer
shall review the results and issue a report to the employer on
whether the results of the second confirmatory test confirmed the
initial confirmatory test as to the presence of a specific drug or
alcohol. If the results of the second test do not confirm the
results of the initial confirmatory test, the employer shall
reimburse the employee for the fee paid by the employee for the
second test and the initial confirmatory test shall not be considered
a confirmed positive test result for drugs or alcohol for purposes of
taking disciplinary action pursuant to subsection 10.
(2) If a confirmed positive test result for drugs or alcohol for
a prospective employee is reported to the employer by the medical
review officer, the employer shall notify the prospective employee in
writing of the results of the test, of the name and address of the
medical review officer who made the report, and of the prospective
employee's right to request records under subsection 13.
j. A laboratory conducting testing under this section shall
dispose of all samples for which a negative test result was reported
to an employer within five working days after issuance of the
negative test result report.
k. Except as necessary to conduct drug or alcohol testing
pursuant to this section and to submit the report required by
subsection 16, a laboratory or other medical facility shall only
report to an employer or outside entity information relating to the
results of a drug or alcohol test conducted pursuant to this section
concerning the determination of whether the tested individual has
engaged in conduct prohibited by the employer's written policy with
regard to alcohol or drug use.
l. Notwithstanding the provisions of this subsection, an
employer may rely and take action upon the results of any blood test
for drugs or alcohol made on any employee involved in an accident at
work if the test is administered by or at the direction of the person
providing treatment or care to the employee without request or
suggestion by the employer that a test be conducted, and the employer
has lawfully obtained the results of the test. For purposes of this
paragraph, an employer shall not be deemed to have requested or
required a test in conjunction with the provision of medical
treatment following a workplace accident by providing information
concerning the circumstance of the accident.
8. Drug or alcohol testing. Employers may conduct drug or
alcohol testing as provided in this subsection:
a. Employers may conduct unannounced drug or alcohol testing
of employees who are selected from any of the following pools of
employees:
(1) The entire employee population at a particular work site of
the employer except for employees not subject to testing pursuant to
a collective bargaining agreement, or employees who are not scheduled
to be at work at the time the testing is conducted because of the
status of the employees or who have been excused from work pursuant
to the employer's work policy prior to the time the testing is
announced to employees.
(2) The entire full-time active employee population at a
particular work site except for employees not subject to testing
pursuant to a collective bargaining agreement, or employees who are
not scheduled to be at work at the time the testing is to be
conducted because of the status of the employee or who have been
excused from work pursuant to the employer's working policy.
(3) All employees at a particular work site who are in a pool of
employees in a safety-sensitive position and who are scheduled to be
at work at the time testing is conducted, other than employees not
subject to testing pursuant to a collective bargaining agreement, or
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.
b. Employers may conduct drug or alcohol testing of employees
during, and after completion of, drug or alcohol rehabilitation.
c. Employers may conduct reasonable suspicion drug or alcohol
testing.
d. Employers may conduct drug or alcohol testing of
prospective employees.
e. Employers may conduct drug or alcohol testing as required
by federal law or regulation or by law enforcement.
f. Employers may conduct drug or alcohol testing in
investigating accidents in the workplace in which the accident
resulted in an injury to a person for which injury, if suffered by an
employee, a record or report could be required under chapter 88, or
resulted in damage to property, including to equipment, in an amount
reasonably estimated at the time of the accident to exceed one
thousand dollars.
9. Written policy and other testing requirements.
a. (1) Drug or alcohol testing or retesting by an employer
shall be carried out within the terms of a written policy which has
been provided to every employee subject to testing, and is available
for review by employees and prospective employees. If an employee or
prospective employee is a minor, the employer shall provide a copy of
the written policy to a parent of the employee or prospective
employee and shall obtain a receipt or acknowledgment from the parent
that a copy of the policy has been received. Providing a copy of the
written policy to a parent of a minor by certified mail, return
receipt requested, shall satisfy the requirements of this
subparagraph.
(2) In addition, the written policy shall provide that any notice
required by subsection 7, paragraph "i", to be provided to an
individual pursuant to a drug or alcohol test conducted pursuant to
this section, shall also be provided to the parent of the individual
by certified mail, return receipt requested, if the individual tested
is a minor.
(3) In providing information or notice to a parent as required by
this paragraph, an employer shall rely on the information regarding
the identity of a parent as provided by the minor.
(4) For purposes of this paragraph, "minor" means an
individual who is under eighteen years of age and is not considered
by law to be an adult, and "parent" means one biological or
adoptive parent, a stepparent, or a legal guardian or custodian of
the minor.
b. 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. The policy shall provide that any action taken
against an employee or prospective employee shall be based only on
the results of the drug or alcohol test. The written policy shall
also provide that if rehabilitation is required pursuant to paragraph
"g", the employer shall not take adverse employment action
against the employee so long as the employee complies with the
requirements of rehabilitation and successfully completes
rehabilitation.
c. Employers shall establish an awareness program to inform
employees of the dangers of drug and alcohol use in the workplace and
comply with the following requirements in order to conduct drug or
alcohol testing under this section:
(1) If an employer has an employee assistance program, the
employer must inform the employee of the benefits and services of the
employee assistance program. An employer shall post notice of the
employee assistance program in conspicuous places and explore
alternative routine and reinforcing means of publicizing such
services. In addition, the employer must provide the employee with
notice of the policies and procedures regarding access to and
utilization of the program.
(2) If an employer does not have an employee assistance program,
the employer must maintain a resource file of alcohol and other drug
abuse programs certified by the Iowa department of public health,
mental health providers, and other persons, entities, or
organizations available to assist employees with personal or
behavioral problems. The employer shall provide all employees
information about the existence of the resource file and a summary of
the information contained within the resource file. The summary
should contain, but need not be limited to, all information necessary
to access the services listed in the resource file.
d. An employee or prospective employee whose drug or alcohol
test results are confirmed as positive in accordance with this
section shall not, by virtue of those results alone, be considered as
a person with a disability for purposes of any state or local law or
regulation.
e. If the written policy provides for alcohol testing, the
employer shall establish in the written policy a standard for alcohol
concentration which shall be deemed to violate the policy. The
standard for alcohol concentration shall not be less than .04,
expressed in terms of grams of alcohol per two hundred ten liters of
breath, or its equivalent.
f. An employee of an employer who is designated by the
employer as being in a safety-sensitive position shall be placed in
only one pool of safety-sensitive employees subject to drug or
alcohol testing pursuant to subsection 8, paragraph "a",
subparagraph (3). An employer may have more than one pool of
safety-sensitive employees subject to drug or alcohol testing
pursuant to subsection 8, paragraph "a", subparagraph (3), but
shall not include an employee in more than one safety-sensitive pool.
g. Upon receipt of a confirmed positive alcohol test which
indicates an alcohol concentration greater than the concentration
level established by the employer pursuant to this section, and if
the employer has at least fifty employees, and if the employee has
been employed by the employer for at least twelve of the preceding
eighteen months, and if rehabilitation is agreed upon by the
employee, and if the employee has not previously violated the
employer's substance abuse prevention policy pursuant to this
section, the written policy shall provide for the rehabilitation of
the employee pursuant to subsection 10, paragraph "a",
subparagraph (1), and the apportionment of the costs of
rehabilitation as provided by this paragraph.
(1) If the employer has an employee benefit plan, the costs of
rehabilitation shall be apportioned as provided under the employee
benefit plan.
(2) If no employee benefit plan exists and the employee has
coverage for any portion of the costs of rehabilitation under any
health care plan of the employee, the costs of rehabilitation shall
be apportioned as provided by the health care plan with any costs not
covered by the plan apportioned equally between the employee and the
employer. However, the employer shall not be required to pay more
than two thousand dollars toward the costs not covered by the
employee's health care plan.
(3) If no employee benefit plan exists and the employee does not
have coverage for any portion of the costs of rehabilitation under
any health care plan of the employee, the costs of rehabilitation
shall be apportioned equally between the employee and the employer.
However, the employer shall not be required to pay more than two
thousand dollars towards the cost of rehabilitation under this
subparagraph.
Rehabilitation required pursuant to this paragraph shall not
preclude an employer from taking any adverse employment action
against the employee during the rehabilitation based on the
employee's failure to comply with any requirements of the
rehabilitation, including any action by the employee to invalidate a
test sample provided by the employee pursuant to the rehabilitation.
h. In order to conduct drug or alcohol testing under this
section, 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. The training shall include, but is not limited to,
information concerning the recognition of evidence of employee
alcohol and other drug abuse, the documentation and corroboration of
employee alcohol and other drug abuse, and the referral of employees
who abuse alcohol or other drugs to the employee assistance program
or to the resource file maintained by the employer pursuant to
paragraph "c", subparagraph (2).
10. Disciplinary procedures.
a. Upon receipt of a confirmed positive test result for drugs
or alcohol which indicates a violation of the employer's written
policy, or upon the refusal of an employee or prospective employee to
provide a testing sample, an employer may use that test result or
test refusal as a valid basis for disciplinary or rehabilitative
actions pursuant to the requirements of the employer's written policy
and the requirements of this section, which may include, among other
actions, the following:
(1) A requirement that the employee enroll in an
employer-provided or approved rehabilitation, treatment, or
counseling program, which may include additional drug or alcohol
testing, participation in and successful completion of which may be a
condition of continued employment, and the costs of which may or may
not be covered by the employer's health plan or policies.
(2) Suspension of the employee, with or without pay, for a
designated period of time.
(3) Termination of employment.
(4) Refusal to hire a prospective employee.
(5) Other adverse employment action in conformance with the
employer's written policy and procedures, including any relevant
collective bargaining agreement provisions.
b. Following a drug or alcohol test, but prior to receipt of
the final results of the drug or alcohol test, an employer may
suspend a current employee, with or without pay, pending the outcome
of the test. An employee who has been suspended shall be reinstated
by the employer, with back pay, and interest on such amount at
eighteen percent per annum compounded annually, if applicable, if the
result of the test is not a confirmed positive test result for drugs
or alcohol which indicates a violation of the employer's written
policy.
11. Employer immunity. A cause of action shall not arise
against an employer who has established a policy and initiated a
testing program in accordance with the testing and policy safeguards
provided for under this section, for any of the following:
a. Testing or taking action based on the results of a
positive drug or alcohol test result, indicating the presence of
drugs or alcohol, in good faith, or on the refusal of an employee or
prospective employee to submit to a drug or alcohol test.
b. Failure to test for drugs or alcohol, or failure to test
for a specific drug or controlled substance.
c. Failure to test for, or if tested for, failure to detect,
any specific drug or other controlled substance.
d. Termination or suspension of any substance abuse
prevention or testing program or policy.
e. Any action taken related to a false negative drug or
alcohol test result.
12. Employer liability -- false positive test results.
a. Except as otherwise provided in paragraph "b", a cause
of action shall not arise against an employer who has established a
program of drug or alcohol testing in accordance with this section,
unless all of the following conditions exist:
(1) The employer's action was based on a false positive test
result.
(2) The employer knew or clearly should have known that the test
result was in error and ignored the correct test result because of
reckless, malicious, or negligent disregard for the truth, or the
willful intent to deceive or to be deceived.
b. A cause of action for defamation, libel, slander, or
damage to reputation shall not arise against an employer establishing
a program of drug or alcohol testing in accordance with this section
unless all of the following apply:
(1) The employer discloses the test results to a person other
than the employer, an authorized employee, agent, or representative
of the employer, the tested employee or the tested applicant for
employment, an authorized substance abuse treatment program or
employee assistance program, or an authorized agent or representative
of the tested employee or applicant.
(2) The test results disclosed incorrectly indicate the presence
of alcohol or drugs.
(3) The employer negligently discloses the results.
c. In any cause of action based upon a false positive test
result, all of the following conditions apply:
(1) The results of a drug or alcohol test conducted in compliance
with this section are presumed to be valid.
(2) An employer shall not be liable for monetary damages if the
employer's reliance on the false positive test result was reasonable
and in good faith.
13. Confidentiality of results -- exception.
a. 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.
b. An employee, or a prospective employee, who is the subject
of a drug or alcohol test conducted under this section pursuant to an
employer's written policy and for whom a confirmed positive test
result is reported shall, upon written request, have access to any
records relating to the employee's drug or alcohol test, including
records of the laboratory where the testing was conducted and any
records relating to the results of any relevant certification or
review by a medical review officer. However, a prospective employee
shall be entitled to records under this paragraph only if the
prospective employee requests the records within fifteen calendar
days from the date the employer provided the prospective employee
written notice of the results of a drug or alcohol test as provided
in subsection 7, paragraph "i", subparagraph (2).
c. Except as provided by this section and as necessary to
conduct drug or alcohol testing under this section and to file a
report pursuant to subsection 16, a laboratory and a medical review
officer conducting drug or alcohol testing under this section shall
not use or disclose to any person any personally identifiable
information regarding such testing, including the names of
individuals tested, even if unaccompanied by the results of the test.
d. An employer may use and disclose information concerning
the results of a drug or alcohol test conducted pursuant to this
section under any of the following circumstances:
(1) In an arbitration proceeding pursuant to a collective
bargaining agreement, or an administrative agency proceeding or
judicial proceeding under workers' compensation laws or unemployment
compensation laws or under common or statutory laws where action
taken by the employer based on the test is relevant or is challenged.
(2) To any federal agency or other unit of the federal government
as required under federal law, regulation or order, or in accordance
with compliance requirements of a federal government contract.
(3) To any agency of this state authorized to license individuals
if the employee tested is licensed by that agency and the rules of
that agency require such disclosure.
(4) To a union representing the employee if such disclosure would
be required by federal labor laws.
(5) To a substance abuse evaluation or treatment facility or
professional for the purpose of evaluation or treatment of the
employee.
However, positive test results from an employer drug or alcohol
testing program shall not be used as evidence in any criminal action
against the employee or prospective employee tested.
14. Civil penalties -- jurisdiction.
a. Any laboratory or medical review officer which discloses
information in violation of the provisions of subsection 7, paragraph
"h" or "k", or any employer who, through the selection
process described in subsection 1, paragraph "l", improperly
targets or exempts employees subject to unannounced drug or alcohol
testing, shall be subject to a civil penalty of one thousand dollars
for each violation. The attorney general or the attorney general's
designee may maintain a civil action to enforce this subsection. Any
civil penalty recovered shall be deposited in the general fund of the
state.
b. A laboratory or medical review officer involved in the
conducting of a drug or alcohol test pursuant to this section shall
be deemed to have the necessary contact with this state for the
purpose of subjecting the laboratory or medical review officer to the
jurisdiction of the courts of this state.
15. Civil remedies. This section may be enforced through a
civil action.
a. A person who violates this section or who aids in the
violation of this section, is liable to an aggrieved employee or
prospective employee for affirmative relief including reinstatement
or hiring, with or without back pay, or any other equitable relief as
the court deems appropriate including attorney fees and court costs.
b. When a person commits, is committing, or proposes to
commit, an act in violation of this section, an injunction may be
granted through an action in district court to prohibit the person
from continuing such acts. The action for injunctive relief may be
brought by an aggrieved employee or prospective employee, the county
attorney, or the attorney general.
In an action brought under this subsection alleging that an
employer has required or requested a drug or alcohol test in
violation of this section, the employer has the burden of proving
that the requirements of this section were met.
16. Reports. A laboratory doing business for an employer who
conducts drug or alcohol tests pursuant to this section shall file an
annual report with the Iowa department of public health by March 1 of
each year concerning the number of drug or alcohol tests conducted on
employees who work in this state pursuant to this section, the number
of positive and negative results of the tests, during the previous
calendar year. In addition, the laboratory shall include in its
annual report the specific basis for each test as authorized in
subsection 8, the type of drug or drugs which were found in the
positive drug tests, and all significant available demographic
factors relating to the positive test pool. Section History: Recent Form
87 Acts, ch 208, §1; 90 Acts, ch 1188, § 1; 90 Acts, ch 1233, §
42; 94 Acts, ch 1023, §120; 98 Acts, ch 1011, §1; 98 Acts, ch 1100,
§81; 98 Acts, ch 1138, §32, 33, 35; 99 Acts, ch 60, §1--8; 99 Acts,
ch 114, §56, 59; 2004 Acts, ch 1081, §1--11; 2005 Acts, ch 3, §112;
2007 Acts, ch 50, §1
Referred to in § 99F.4