1. Iowa Drug Testing Law– Part Two Hugh J. Cain Hopkins & Huebner, P.C. 2700 Grand Ave - Ste 111 Des Moines, IA 50312 hcain@hopkinsandhuebner.com

2. Iowa Code § 730.5 If Employer chooses to do drug testing, can only do so pursuant to a written plan. Written plan must be provided to every employee subject to testing and available for review by all employees and applicants.

3. Types of Testing Permitted Pre-employment Random Reasonable Suspicion Post accident when accident results in injury to person or damage to property exceeding $1,000 Rehabilitation testing (Iowa Code § 730.5(8))

4. Positive Test of an Employee Employer must notify employee in writing by certified mail, return receipt requested, of: 1.Employee’s right to obtain confirmatory test at approved lab of employee’s choice; and 2.The fee payable by the employee for the second test. (Iowa code § 730.5(7))

5. Positive Test of Employee Employee must, within 7 days from date when employer mails written notice: 1.Request a confirmatory test; 2.Identify an approved laboratory; and 3.Pay to the employer the fee for the second test.

6. Second Test If results of second test do not confirm results of initial test, then: –The employer must reimburse the employee for the fee paid by the employee for the second test. –The first test cannot be considered a positive test for disciplinary action purposes.

7. Positive Test of Prospective Employee Employer must notify prospective employee in writing of: 1.The results of the test; 2.The name and address of the Medical Review Officer who made the report; and 3.The prospective employee’s rights to request records. (Iowa Code § 730.5 (7))

8. Positive Test of Prospective Employee Prospective employee is entitled to laboratory records if he/she requests them within 15 days of receiving notice of right to do so.

9. Positive Test of Prospective Employee Employers are required to pay the costs of retesting when the employer invokes its drug testing policy as a condition for hiring. Tow v. Truck Country of Iowa, 695 N.W.2d 36 (Iowa 2005)

10. Disciplinary / Rehabilitative Actions A requirement that the employee enroll in approved rehabilitation, treatment, or counseling program; Suspension with or without pay for a period of time; Termination of Employment;

11. Disciplinary / Rehabilitative Actions Refusal to hire prospective employee; or Other action in conformance with employer’s written policy. (Iowa Code § 730.5(10))

12. Suspension of Employee Pending Results Following a test, but prior to receiving results, an employer can suspend an employee with or without pay pending the outcome of the test. An employee who has been suspended must be reinstated by the employer, with back pay and interest, if result of test is not a confirmed positive result.

13. Confidentiality of Tests Generally, all communications received by an employer relevant to an individual’s test results are confidential and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceeding.

14. Confidentiality Exceptions In an arbitration proceeding pursuant to a collective bargaining agreement, a worker’s compensation proceeding, or an unemployment compensation proceeding; To a federal agency as required by law;

15. Confidentiality Exceptions To any state licensing agency if the employee is licensed by that agency and the agency requires disclosure; To a union representing an employee if disclosure required; To a substance abuse evaluation or treatment facility for purpose of treatment or evaluation. (Iowa Code § 730.5(13))

16. Employer Liability for False Positives In order to sue an employee for a false positive test, an individual must prove: –The employer’s action was based on a false positive test; and –The employer knew or clearly should have known that the test was in error and ignored the correct test result because of reckless, malicious, or negligent disregard of the truth, or willful intent to deceive. (Iowa Code § 730.5(12))

17. Case Law Sims v. NCI Holding Corp., 759 N.W.2d 333 (Iowa 2009) –Employer gave Plaintiff prompt oral notice of right to second test but did not notify Plaintiff by certified mail until 5 months later - after Plaintiff had retained counsel. –Court held that substantial compliance with Iowa Code § 730.5 is sufficient, but that NCI’s actions were not substantial compliance.

18. Case Law Harrison v. Employment Appeals Bd., 659 N.W.2d 581 (Iowa 2003) –Interplay between Iowa Drug Testing Law and unemployment benefits. –A positive drug test which does not comply with § 730.5 cannot be used as a basis for a finding of misconduct which would allow for denial of unemployment benefits.