Summary of Iowa Drug Testing Laws
Iowa drug testing laws are, for the most part, in line with federal law, but the two are not identical. The principal source of law governing drug testing in Iowa comes from the Code of Iowa. Section 730.7 provides an employer the right to conduct drug testing to detect the unlawful or unauthorized controlled substances of its employees. The specific provisions of the Iowa drug testing law are set forth in greater detail below.
This law applies to all private employers in Iowa, and is in addition to the requirements imposed under the Iowa Civil Rights Act (ICRA), Iowa Code section 216.1 and Iowa Administrative Code § 161.2(6) (discrimination). That law also allows employers to test prospective employees as well as employees, whereas section 730.7 only addresses employees. Employers that are covered by the ICRA are prohibited from considering the results of tests conducted on the basis of a protected class under that law, such as sex, race, religion, or disability in the hiring process . The results of drug tests are generally not covered by the ICRA, though, absent evidence of a testing program that is intended to be discriminatory or is otherwise used in a discriminatory manner.
In governing drug testing in the workplace, the Code of Iowa, section 730.7 provides the framework for determining whether the test administered conforms to the reasonable rules and regulations promulgated by the Iowa Department of Public Health. Whether an employer’s drug testing conforms to the Department of Public Health’s rules is determinative of whether the employer has complied with the law, and, therefore, the employer should consult with a technical expert in order to conform with the law.
There is no express law addressing drug testing in the context of unemployment compensation determinations, or administrative appeals of those determinations. However, guidance can be inferred from Iowa case law. In general, a claimant may not be disqualified from unemployment compensation benefits when discharged for positive drug testing unless the use of the drug by the claimant occurred (a) on the job (b) during working hours and (c) the use was not authorized by the employer.
Iowa Drug Tests Available
Iowa law does not require an employer to conduct drug testing in any circumstances. However, under Iowa Code Section 730.5, and when an employer chooses to implement a drug testing program, Iowa law does permit five (5) types of drug tests: urine tests, blood tests, hair tests, saliva tests, and sweat tests.
Urine testing is the most frequently used drug test, in part due to its low cost and the broad variety of controlled substances for which it can reliably detect use. However, a urine drug test is limited by its reliance upon a secondarily obtained sample, which may not accurately reflect chemical levels in the donor’s body at the time of the test. Additionally, urine tests are subject to high variability among biological systems and environmental conditions. A primary urine test may be confirmed if the results are negative, but not if they are positive. A secondary confirmation such as a hair test may be utilized if there are discrepancies that require a secondary confirmation. Results from a laboratory-confirmed urine test are valid only if the sample is collected in accordance with a chain of custody procedure.
Blood tests are typically employed when an accurate assessment of a drug’s concentration in an individual’s system at the time of testing is required. Blood tests, such as forensic drug testing, require significantly more effort to implement and, consequently, are generally more expensive and intrusive than most other types of drug tests.
Hair tests are employed when the time necessary to process a urine sample is restricted. With a hair test, a laboratory can analyze only the portion of the hair sample that is consistent with the hair follicle, thus requiring a smaller sample size and less privacy than a urine test. While the range of drugs that can be detected in the body are comparatively limited, and the concentration of a drug ingested is difficult to positively infer, hair tests may be collected non-invasively and may be used to identify drug use earlier than other methods.
Saliva tests are minimally invasive and, therefore, relatively inexpensive. They are accurate with respect to the detection of certain well-controlled substances, but are not well-suited to drugs that have a high level of inter-assay variance or short half-life. Saliva tests are now available that use a well-documented concentration test to minimize the high level of inter-assay variance that is commonly associated with saliva tests.
Sweat tests are relatively inexpensive. Sweat tests are best used with detectable levels of a drug that are excreted in the sweat. The sweat patch remains on the skin for five to 14 days and must be inspected frequently to ensure that it has not been tampered with or removed. Results may take up to three weeks to obtain.
Employer Testing Requirements
Employers are allowed to test employees and applicants for drugs by notifying them in their handbook, in a written policy or by giving notice at the time of the test. Iowa law does not require employers to have a drug testing policy or to give advance notice of a drug test. However, once an employer decides to test, there is a patchwork of Iowa statutes and regulations that determine when drug testing can take place. Employers must be careful to ensure any testing is conducted according to the law or at least that the testing is not prohibited under state law. This is particularly true for employers who are also subject to federal drug testing mandates, such as federally-funded contractors, federally regulated transportation employers, and employers of individuals designated as "safety-sensitive" employees (whatever that designation means under the applicable federal regulation).
Employers may require an applicant to submit to a pre-employment drug test as a condition of hiring. Iowa Code § 730.5(4)(a). Once hired, an employee may be required to undergo additional drug testing, either randomly, for cause, or upon post-accident reasonable suspicion.
Under this law, an employee who tests positive for drugs or alcohol may not be disciplined or terminated by the employer, unless the employee has been informed that the use of the drugs is prohibited, the employee has received "substantial benefits" from a substance abuse program recommended by the employer and completed the program, and the employee is then found to have tested positive again. Id. § 730.5(10). The law does not define what "substantial benefits" means, but it is important to note that an employee’s failure to receive substantial benefits would not automatically mean an employer could proceed with discipline or termination. The point here is that if an employer wants to retain the ability to discipline or terminate an employee who tests positive for drugs in violation of the employer’s policy, then the employee will need to be advised of that in advance. Otherwise, if the employee seeks substance abuse treatment, the law allows the employee to return to work even after testing positive a second time.
The law also gives certain guidance on creating an employee drug-free workplace policy – unfortunately, most employers do not have a workplace policy, but the guidelines may inform that policy if one is adopted. The policy should (1) include written notice of the work rules, (2) specify whether or not employee drug testing will be conducted, (3) inform employees of the potential disciplinary consequences for drug use, and (4) contain clear statements regarding the affirmative defense available to an employee who tests positive. Id. § 730.5(1)(b), (2).
Unfortunately, even if an employer gives advance notice of its drug free workplace policy and adheres to these guidelines, the employer may still be liable for criminal charges for violating Iowa Code section 124.401(8) if drugs are actually allowed in the workplace. That statute prohibits state licensed employers from knowingly permitting illegal activities that involve drugs: "[i]t is unlawful for any licensee . . . to knowingly allow any illegal activity, as defined in section 124.204, to occur within the real property under the licensee’s control." Iowa Code § 124.401(8). While the law does not define "allow," it does define "knowingly," as: "having actual knowledge of the fact in question or acting in deliberate ignorance or reckless disregard of the fact in question." Id. § 801(15).
If an employer does decide to adopt a workplace policy that permits employees to test positive for drugs or alcohol, and allows them to return to work after seeking substance abuse treatment – all of which is highly problematic because of the need to report information about failed drug tests under the Affordable Care Act – then it should also be aware that affirmative defensive to criminal charges:
Notwithstanding the licenses and fees as provided, nothing in this chapter shall be construed to prohibit the incidental use of a controlled substance . . . by persons legally entitled to possess such controlled substances or items, or for legitimate reasons incident to the lawful practices of physicians, pharmacists, hospitals, laboratories, manufacturing, distribution, and other lawful purposes authorized by law. Proof of such incidental use or possession shall be a complete defense to any and all civil, criminal, or administrative actions, suits, causes of action, or penalties.
Iowa Code § 124.602(2).
To summarize in practical terms, an employer may not test an applicant for drugs unless it gives prior notice that it requires that test as a condition of employment. Once employed, an employee may be tested for drugs at the employer’s discretion, except for marijuana, which is otherwise legal under state law. Because marijuana is still illegal under federal law, Iowa employers may not want to take an affirmative position under Iowa law requiring that all employees be permitted to possess marijuana in the workplace. The law allows employers to terminate employees who test positive for illegal drugs or alcohol, except for the affirmative defenses described above.
Drugs and Employee Rights
As an employee in Iowa, you should know that you have a right to refuse a drug test for any reason that you feel is personal or private. Surprises tests in the workplace, even without a policy in place, are not allowed. While Iowa law does not mandate that employers put any policies in place, employers in Iowa must treat employees who test positive for drugs the same as employees who do not. For more information on your rights as an employee-whether policy is in place or not-we encourage you to contact a qualified employment attorney to discuss your situation.
If A Failed Drug Test Occurs
Iowa law recognizes that an employee who fails to pass a drug test can be terminated or subject to employment discipline if the drug test is administered in accordance with the employer’s policy. Lawful termination or discipline can occur in the absence of any offer of rehabilitation or outplacement service. An employer is not required to provide substance abuse treatment or job counseling to an employee who has failed to pass a drug test .
The legality of such employment termination or discipline requires that: (1) prior to any drug testing, the employer must advise employees in writing that their employment is conditioned on such testing and that a refusal to submit to testing or a positive drug or alcohol test may result in discipline or termination and (2) refusal to submit to testing or a positive drug or alcohol test must be verified by a medical review officer. In addition, written notification of the right, as well as the procedures, to have a positive drug test result independently reviewed by a qualified laboratory must be provided. In addition to these notification requirements, the employer must maintain the original and only sample of a positive urine test for at least one year.
What To Do If Violations Occur
Employees who feel they have been unfairly and unreasonably subjected to drug testing or penalized for a positive test can invoke various options to demand justice.
First, an employee may request another opportunity to take the drug test. On occasion, the lab will erroneously test a sample. For example, in an instance where a sample is spilled or mixed, a false positive may be obtained. If an Employer observes two positive test results from two separate samples, then it must notify the employee so that he or she has an opportunity to work with the testing facility to provide a new test. The result of the "split" test would be confirmed or rejected and the issue resolved.
Second, an employee may engage in "talk therapy" with the lab or the employer. This means that the employee communicates, either through face-to-face or phone conversations, the reasons why he or she uses a particular drug. Evidence of the use may include a valid prescription. It is the employer’s discretion whether to accept the explanation and set aside a positive result. The employer’s policy on its face (not necessarily the practice) should provide such an opportunity and require the lab to contact the employee as soon as possible if a "non-negative" test result (which includes both a false positive and failure to follow chain of custody procedures) is obtained.
Third, an employee may obtain a copy of the drug test result by requesting it. Iowa Code Section 730.5.4(5) states "all records of drug and alcohol testing maintained by the employer shall be made available to the tested employee or former employee on request." The law also requires an employer to inform the employee of the employer’s policy relating to the production of records of drug or alcohol testing within five days of the request. The law does not require the laboratory to produce the records directly to the employee. Rather, the law requires the employer to make the results "available."
Fourth, employees may assert a claim based on alleged physical or mental difficulty in providing the sample requested from the employee. Within the law is an exception for those who provide evidence that they "are undergoing pretrial, post trial, or drug court supervision; or have been referred to or are undergoing substance abuse counseling or treatment by a substance abuse program or drug court while subject to pretrial or posttrial supervision." Iowa Code sec. 730.5.7A(2). In a recent case, an arrestee’s conviction was overturned because he did not submit a sample when he was sought and actually underwent drug treatment and counseling. His refusal to provide the sample could not be separated from the circumstances of his incapacitating drug addiction. State v. Bobele, Iowa _______________________ (2006). On the facts of Bobele, there was no reason for the testing to occur and therefore it was all thrown out as evidence in the trial of his case.
Updates and Future Trends
Iowa’s drug testing laws have seen some recent updates, but the guidelines around them remain largely consistent. However, with marijuana legalization making its way across the Midwest, the state could see significant changes in how drug tests are approached. Further, as the opioid epidemic continues, drug testing requirements may change as well.
Fortunately, there have been no major legislative changes to Iowa’s drug testing requirements over the past year. In addition, there has been no movement in Congress over employment drug testing laws, and none are expected soon. States individually have seen some changes, but not in Iowa. As it stands, Iowa residents in need of a drug test will have to follow the same guidelines as before.
The closest thing Iowa workers have to a state-wide drug testing law is Iowa Code §730.4. This code states that employees cannot be tested for drugs or alcohol without a 24-hour notice for all employees facing testing. There must also be a notification posted in a prominent place on the premises for all employees to see, and if an employee refuses to be tested, the employer must then offer to pay for a confirmatory test within 48 hours. Because it is not the responsibility of County Attorneys to prosecute employers who violate this law, and because no Iowa agency is tasked with developing workplace drug testing standards, these laws are rarely, if ever, enforced .
At the federal level, drug testing in the workplace is not currently regulated well. The federal government takes no stance on urine drug testing, hair drug testing, saliva drug testing, and breathalyzers for marijuana use and alcohol use. It is up to individual states to regulate these types of testing. Right now, drug testing falls under the purview of the Department of Transportation (DOT), the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, the Federal Transit Administrations, the Federal Aviation Administration, the U.S. Coast Guard, and the Pipeline and Hazardous Materials Safety Administration, despite the fact that none of these groups regulate every type of drug test.
If marijuana continues to be legalized, and there is fluidity in the law about other drugs, such as opioids, Iowa may see a future where more drug tests are permitted or certain drugs such as marijuana are not tested for. Previously, drug tests have been legal for most drugs, except for alcohol and marijuana. Previously, if someone tested positive for marijuana, the employer was required to provide a confirmatory test at the employee’s request, which could potentially save an employee’s job. On the other hand, blood tests, saliva tests and hair tests become more viable and may be legally required, now that testing for marijuana is becoming more common.