By Joseph Rust
Ordering and administrating a drug or alcohol test on an employee or prospective employee is not as straightforward as one might expect. An employer cannot simply order a test on an employee for suspected drug use but must follow the procedures set out in the Iowa Code section 730.5.
An employer may test any prospective employee for the presence of drugs or alcohol as a condition of hiring. However, conducting tests on current employees requires certain criteria to be met. Testing must be carried out within the terms of a written policy, which has been provided to every employee subject to testing, and most importantly, details what uniform disciplinary or rehabilitative action shall be taken against the employee after a confirmed positive test.
An employer may require employees to submit to a drug or alcohol test when:
- There is a reasonable suspicion of drug or alcohol use;
- The employee participates in a drug or alcohol rehabilitation program; or
- Following an accident that caused a reportable injury or more than $1,000 in property damage.
The first point, testing based on reasonable suspicion of drug or alcohol use, is clearly more open to interpretation than testing after an accident or an employee participating in a rehabilitation program. Therefore, it is important for employers to carefully follow the requirements of 730.5 or face a potential lawsuit from the employee.
Reasonable suspicion for purposes of drug or alcohol testing means 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 from experience. Under this standard facts can be based on but not limited to the following:
- Observation of drug or alcohol use, or the physical symptoms of being impaired by alcohol or other drugs;
- Abnormal conduct or erratic behavior while at work; or
- A report of alcohol or drug use by a reliable and credible source.
An employer may also conduct drug or alcohol testing of all full-time employees at one site or all employees in a safety-sensitive position, which includes positions where an accident could cause loss of human life, serious bodily injury, or significant property damage.
Once it is determined a test can be conducted on an employee, certain procedures for conducting the test must be carefully adhered to. Failing to comply with the procedures of the Iowa Code section 730.5 will prohibit your ability to discipline or terminate an employee even if the employee tests positive for alcohol or drug use. These safeguards provided by the Iowa Code give the employee legal rights to recover lost wages, damages, attorney fees and other expenses if terminated but you failed to comply with 730.5.
You may run into further legal trouble with employees if you are conducting tests discriminatorily by singling out groups based on race, age or gender, if you invade the employee’s privacy, or an employee may have a claim for defamation if you publicize a false positive test result.
If you are an employer, we recommend that you consult with an attorney to ensure your written drug testing policy and procedure complies with Iowa law.