Iowa's Court of Appeals Answers Several Questions Regarding the State's "Byzantine" Drug Testing Statute - Part One

On January 9, 2020, the Iowa Court of Appeals released two opinions – Dix v. Casey’s General Stores, Inc. and Woods v. Charles Gabus Ford, Inc. – dealing with Iowa’s private sector drug testing statute. Both cases were considered by the same panel of three judges, although the opinions were written by different judges. Both opinions used the word “byzantine” to describe the provisions of Iowa’s private sector drug and alcohol testing statute, Iowa Code Section 730.5. That adjective should come as no surprise to Iowa employers (and the attorneys who advise them) which do drug and alcohol testing under the Iowa statute.

Iowa’s drug testing statute provides that in any civil action where it is alleged that an employer has required – or even requested – a drug or alcohol test in violation of the statute’s requirements, “the employer has the burden of proving that the requirements of this section were met.” The Iowa Supreme Court’s decision in Harrison v. Employment Appeal Bd. instructed that, in considering whether an employment termination based on a drug test is “misconduct,” Iowa Workforce Development should not focus on the test results, but rather should carefully examine an employer’s compliance with the many requirements of the statute. The Iowa Supreme Court tempered this obligation in Sims v. NCI Holding Corp., where it instructed that for certain of the requirements, a “substantial compliance” test could be used.

A final preliminary, but for employers and their counsel, important observation. We are seeing an increase in the number of cases from “plaintiffs lawyers” challenging drug tests, focusing on the requirement that an employer “prove the requirements” of the Iowa statute were met. In the Casey’s case, challenges were brought to over a dozen of the statute’s requirements – including whether the restroom in which the collection was done met the requirement that the collection conditions be “sanitary,” and whether a third-party’s use of a computer program which is “best described as a ‘pseudo-random number generator’” met the statute’s requirement for a “computer-based random number generator.” It seems reasonable to conclude that if one is disciplining non-DOT, Iowa-based employees based on the results of a drug or alcohol test, one had best be prepared to prove that all of the requirements of Iowa’s “byzantine” law were met.

Because of the number of topics addressed in the two decisions, they are discussed in two successive blog posts.

• Employer’s Notice to Employee of Positive Drug Test. Iowa Code Section 730.5(7)(j)(1) provides that if there is a positive test result reported to the employer, the employer must inform the tested employee in writing, “by certified mail, return receipt requested,” of the results, of the employee’s right to request a confirmatory test on the second portion of the split specimen at an “approved laboratory of the employee’s choice,” and what the costs or fee payable by the employee for reimbursement of the costs of the second test will be. 
   
  • Gabus Ford sent its letters by US Postal Service “certified mail,” but did not pay the fee for “return receipt requested.” While the Court of Appeals did not discuss the process in any detail, according to the Postal Service’s web site the USPS attaches a tracking number to certified mail; provides a receipt to the sender when the mailed item enters the Postal Service system, and obtains a signature when the item is delivered. The USPS business record tracking the letter through delivery to the individual plaintiff (who did not contest his actual receipt of the document) was in evidence. The Court of Appeals determined that the fact the notice was sent by certified mail provided the recipient with “the requisite cachet of importance,” the employee was “indeed alerted to a serious situation.” It determined that having a “return receipt request” – the green card that is sent back to the sender – really adds nothing to the cachet of importance insofar as the employee is concerned. While Gabus Ford was determined to be in substantial compliance with the statute’s requirement, the Court of Appeals concluded its discussion on this point with the observation, “To stave off potential litigation, the better practice would be to follow the letter of the statute.”
     
  • While Gabus Ford’s letter told the employee of his right to request a test on the second portion of the specimen, and that the employee would be reinstated with back pay and reimbursed for the cost if the result of the second test did not confirm the initial test, the letter had no information of any sort on the initial cost to the employee of that testing. The district court determined that Gabus Ford had “substantially complied” with the statute.  The district court noted that the employee testified that if the notice had told him how much it would cost, he “‘might’ have” requested a confirmatory test. The district court expressed the opinion that it believed that any employee would request the confirmatory test “regardless of its cost [if the employee believed a confirmatory test would exonerate him/her] . . . because it would ultimately cost him nothing to do so.” While acknowledging the appeal and logic of the district court determination, the Court of Appeals adhered to the language of the statute: “It was Gabus Ford’s burden to inform [the employee] of the cost” and failing to provide that information deprived the employee of a “meaningful opportunity to consider whether to undertake a confirmatory test.” The Court of Appeals remanded the case to the district court to consider what the remedy for this particular violation should be. (In Sims, the written notice to the employee was defective, but the employer subsequently paid for a confirmatory test on the second portion of the sample – which confirmed the initial positive result. The Iowa Supreme Court noted that in that situation, “Sims is not entitled to damages or reinstatement for wrongful termination of his employment.” It continued, however, that NCI was properly required to reimburse Sims for his attorney fees and costs in the litigation.)
     
• Is there a limitation on the percentage of the workforce pool which may be tested in “unannounced” [i.e., “random”] testing? Casey’s had a written policy for employees at its Ankeny, Iowa, warehouse, which included “unannounced” testing. The written policy described the pool for testing as all of the warehouse employees in “safety-sensitive” positions. In internal emails introduced at the trial, it was clear that Casey’s executives wanted to test 100% of the employees in the announced pool, but finally settled for 90%. Casey’s sent a list to a third party of all the employees in the pool who were scheduled to be at work on a day selected for specimen collection. The third party – using a computer program to generate “pseudo-random” numbers – selected for testing 90% of the employees on the list. On the day of testing, due to unanticipated absences, the 90% of the workforce whose names were on the list turned out to be 100% of the employees at work. All on the list were directed to submit a specimen for testing. The plaintiffs challenged the percentage of employees tested. The Court of Appeals noted that, “the statute does not prescribe any particular percentage the employer may select from a properly drawn pool.” It continued that everyone who was tested was in fact included in the “first draw” from a neutral and objective selection criteria, by a neutral entity making selections from a “computer-modeled random number generator” such that employees had a “roughly equal chance of being picked.” [The “pseudo-random” generator “substantially” complied with the statute’s requirement.] 
   
• A “safety-sensitive” position must meet the standards established by the Iowa drug-testing statute. The Iowa drug testing statute has three different pools which employers may use for selecting employees for random drug testing. Summarily, they are all employees at a worksite, all full-time employees at a worksite, or all employees at a work site who are in a pool of employees who are in safety-sensitive positions. The term “safety-sensitive position” is defined in Iowa Code Section 730.5(1)(j) to mean 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.” The written policy of Casey’s established that it was going to test the employees in safety-sensitive positions in the warehouse. As a practical matter, Casey’s told everyone in the warehouse he or she was in a safety-sensitive position. That included two plaintiffs, each of whom was assigned to “the cage” – an area for tobacco returns in the warehouse building that was separated from the general warehouse by a chain-link fence, which could only be breached by a single door, and where the jobs were viewed as “light duty.” The two “cage employee” plaintiffs lost their employment – one for a positive test, and one for a refusal to test. The Court of Appeals agreed that neither of the workers in “the cage” was in a “safety-sensitive position” under the statute, and thus they could not – as a matter of law – have been tested or even asked to submit to a random drug test under the written policy of Casey’s. The fact that Casey’s could have had a policy which defined the possible pool as “all employees” or “all full-time employees” at the worksite did not change the fact that its written policy did not: The Iowa statute requires that testing be done in conformity with the written policy, and the written policy of Casey’s said that it would limit the random testing to persons in “safety-sensitive positions.”

More of the topics are discussed in Part Two of this post.