Iowa’s Court of Appeals Answers Several Questions Regarding the State’s “Byzantine” Drug Testing Statute – Part Two

As noted in Part One, on January 9, 2020, the Iowa Court of Appeals released two opinions construing provisions of Iowa’s private sector drug and alcohol testing statute, Iowa Code Section 730.5. Part One discussed the contents of the required written notice to the employee following an employer’s receipt from the MRO of a confirmed positive drug test, as well as how that notice must be sent, limitations on the percentage of an identified component of the workforce which is subject to unannounced / random testing, and the importance of assuring that the individuals the employer places in the pool from which those to be tested will be selected meet the standards of both the Iowa Code and the employer’s written policy – especially for employees claimed to be in “safety-sensitive positions.”

Continuing the discussion:

• “Training” of supervisory personnel. Iowa Code Section 730.5(9)(h) mandates that any employer conducting testing under Iowa’s statute, “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 two employees of Casey’s who supervised the testing – a Human Resources Supervisor and a Human Resources Specialist – were shown to have the requisite hours of training. The Court of Appeals concluded there was no violation where non-supervisory administrative / clerical staff (e.g., persons who assisted employees in completing the chain of custody documents, or monitored employees in the holding area, or escorted employees to the location where specimens were being collected) were not shown to have the statutorily-required training. In Gabus Ford, the question of training was apparently first raised on appeal – the plaintiff contending that Gabus Ford had failed to establish at the trial level that personnel had the required training. The Court of Appeals noted the question of training was not raised until after the trial was over – and thus Gabus Ford had no notice it was an issue, so that it presented no evidence on the topic.

• Identification of Substances to be Tested For; Opportunity to Provide Relevant Medical Information. Iowa Code Section 730.5(7) begins with the instruction that, “All sample collection and testing for drugs or alcohol under this section shall be performed in accordance with the following conditions:”.  Section 730.5(7)(c)(2) requires that an employee or applicant, “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.” The statute continues that, “to assist . . . in providing the information. . . , the employer shall provide an employee or prospective employee with a list of the drugs to be tested.” 

• The written policy of Casey’s warned employees that testing may detect, “[a]ny drug or substance defined as a controlled substance . . . under the Federal Controlled Substances Act.” It went on to state that such substances include, but are not necessarily limited to, “cocaine, phencyclidine (PCP), opiates, amphetamines, marijuana, MDMA (ecstasy), and 6-acetylmorphines (6-AM).” The Court of Appeals concluded that while the first sentence standing alone might be inadequate as too vague or over-inclusive to meet the statutory obligation, when combined with the second portion which listed specific drugs – including the drugs that had been found in the plaintiff’s samples – Casey’s had substantially complied with the requirement of the statute.

• On the day Casey’s first collected specimens under its policy for unannounced / random testing, Casey’s Vice President of Distribution addressed all the warehouse employees. He not only announced the testing, and described the specimen collection procedure, he told the assembled warehouse employees, “if any of you are taking a prescription, do not discuss it with us. You should proceed to the test, and if applicable, the Medical Review Officer will contact you at a later date to substantiate the prescription.”  The plaintiffs in the Casey’s litigation contended that the opportunity to provide the “relevant information” should have been provided when the specimen was collected, not after the testing had been completed by the laboratory but before the results were reported to the employer by an MRO.  (Iowa’s law requires that an MRO is to “consider” the information provided by the individual before a report is made.) The Court of Appeals rejected the employees’ contention on when the employee must be provided the opportunity. The Court of Appeals noted that if an employer were to be required to provide an employee the opportunity to provide the medical information at the time of collection, the employee would be forced to “reveal private information” prior to there being a need. The Court of Appeals observed that there is no need for any medical information until the MRO is called upon to review and interpret the laboratory results. The record here showed that each of the individuals who tested positive was contacted by an MRO after the MRO received the results from a SAMHSA-approved lab and before the results were reported to Casey’s, each personally spoke to the MRO, and each gave the MRO the employee’s the relevant information. This, the Court of Appeals concluded, constituted “substantial compliance” with the statute. [There is no mention in the decision on what standards, if any, the MRO may have applied. For those unfamiliar with the process, under DOT regulations found at 49 CFR Part 40, Subpart G, the MRO is required to “contact the employee directly (i.e., actually talk to the employee)” and not only tell the employee that the laboratory test was positive, but, “You must also tell the employee of the drugs for which his or her specimen tested positive . . .”. Thus, if the MRO in Casey’s were to be following DOT protocol, before the individual provided any medical information, the MRO would have told him or her precisely what drugs had been found.]

• Testing on a “periodic basis.” Iowa’s statute requires that the unannounced / random testing be done on a “periodic” basis. The plaintiffs in the Casey’s case were tested the first time that Casey’s had done any testing following the promulgation of the written policy which allowed for such testing. The Court of Appeals noted that based on that limited record, the employees could not establish that Casey’s violated the requirement that the employer conduct unannounced testing on a periodic basis.   

The Court of Appeals in Casey’s also resolved a potential conflict in the Iowa statute between the civil remedies section of Iowa Code Section 730.5(15) and the “employer immunity” provided by Iowa Code Section 730.5(11). Without any discussion of the different language used (i.e., the immunity runs to an “employer” while the liability is against any “person”), the Court of Appeals concluded that the immunity clause immunizes employers who have otherwise acted in good faith from liability arising from the statutory violations of third persons.

An employer with Iowa employees which is doing non-DOT drug or alcohol testing of those employees would be well advised to invest in a review of its policies (including the written policy itself) and procedures to assure that all of the “Byzantine” requirements of the law are being complied with, and that it is prepared to meet its statutory obligation to prove compliance. While “substantial compliance” may be acceptable, I repeat the observation of the Court of Appeals: “To stave off potential litigation, the better practice would be to follow the letter of the statute.”