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webeagleFlaws in the Laws:

Part I – Employment Drug Testing

by Marty Ryan

Prior to 1987, there was no law that regulated drug testing of employees or applicants for employment in Iowa.  Employers were free to test an employee, or an applicant for employment, for any drug or substance with impunity.  Since 1987, Iowa’s law addressing matters of employment drug testing have seen several drastic changes.

House File 469 passed the Iowa House of Representatives in 1987 by a vote of 93-1.  The Senate passed the bill 31-16 and sent it to the governor.  Governor Terry Branstad signed the measure into law on June 5th.  The original bill, House File 63, was introduced by Rep. Ralph Rosenberg (D) of Ames.  It was referred to the Committee on Labor & Industrial Relations where it was assigned to the subcommittee of Reps. Tony Bisignano (D-Des Moines); Joan Hester (R-Honey Creek); and Rich Running (D-Cedar Rapids).

The bill defined a “drug test” meaning “any blood, urine, saliva, chemical, or skin tissue test for the purpose of detecting the presence of a chemical substance in an individual.”  The bill prohibited “random drug testing of employees.”  It required “reasonable suspicion” before an employee could be tested, and it allowed drug tests “authorized for peace officers or correctional officers of the state, or to drug tests required under federal statutes or regulations, or to drug tests conducted to determine if an employee is ineligible to receive workers’ compensation.”  The bill also required testing by laboratories approved by the Iowa Department of Health and provided that samples had to be split for the purpose of conducting confirmatory testing if the employee questioned the results of the original test.

The bill provided other language that protected the employer under certain conditions, prevented termination of an employee if the employee underwent a drug or alcohol evaluation and followed up with the evaluation’s recommendations.

The bill was a project by my predecessor at the Iowa Civil Liberties Union, Mark O. Lambert.  He had crafted the bill after a City of San Francisco ordinance.  At the time, Labor unions were not particularly fond of the bill.  Eventually, Labor began to see that the legislation actually protected employees from intrusive and unnecessary testing of employees and grew to accept the law and protect it.  The only changes to the law between its inception and my succession of Mark Lambert were amendments to coincide with the federal Commercial Drivers’ License laws.

There was an attempt in the early 1990s to amend the law by Republicans in the House.  However, Democrats continued to control the Iowa Senate, and although the majority party was pressured heavily to go along with the Republican changes, the session ended with the House bill landing in the round file.

Then, a man from Kiron, Iowa, became an Iowa Senator.  One of State Senator Steve King’s priorities was to amend Iowa’s drug testing law in favor of employers.  His bill was massive.  It would provide very few protections for workers and allow employers carte blanche control over employees’ bodies.  A favorite moment of mine was the day in which the bill was to be debated in the Senate Judiciary Committee.  Senator Tom Vilsack (D-Mount Pleasant) sat across from Senator King (R-Kiron) and when the bill was brought up for consideration, Senator Vilsack asked Senator King if it would be alright to record the proceedings.  Senator King was relaxed as he said it was fine.

I don’t recall another senator speaking during the committee consideration on Senator King’s bill.  It did surprise me that both adversaries were calm in their questioning of each other, citing facts, and expressing opinions.

Even after the bill was debated on the floor of the Senate, no one noticed a serious flaw in the bill.

“Sample” means such sample from the human body capable of revealing the presence of alcohol or other drugs, or their metabolites. However, sample does not mean blood except as authorized pursuant to subsection 7, paragraph “I”.

As you can see, a sample can mean just about anything; breath, urine, ear wax, skin, saliva, etc.  But not blood.  Breath is highlighted because of another provision in the bill:

Sample collection for testing of current employees shall be performed so that the specimen is split into two components at the time of collection in the presence of the individual from whom the sample or specimen is collected. The second portion of the specimen or sample shall be of sufficient quantity to permit a second, independent confirmatory test as provided in paragraph “i”. If the specimen is urine, the sample shall be split such that the primary sample contains at least thirty milliliters and the secondary sample contains at least fifteen milliliters.

As you can see, no one noticed that a sample of breath would have to be “split into two components.”  It wasn’t until the bill was debated on the floor of the House when someone asked me how they were going to split breath.  I heard that question when I was sitting in the gallery watching the debate.  Sitting in the gallery working on something apart from the debate was Rep. Phillip Wise (D-Keokuk). I went over to where he was sitting and asked him if he could go to the floor, be recognized (at that time, you raised your microphone) and ask the floor manager how an employer would actually split the breath specimen into two components.  Rep. Wise was happy to do so.  When he was recognized, Rep. Wise asked the question, and the floor manager of the bill, Rep. Steven Sukup (R-Sheffield) said, “I don’t know.”  Any other questions Rep. Wise asked that pertained to that matter were answered in the same manner: “I don’t know.”  The bill passed along party lines, 54-44.

The following year, Senate File 115 was introduced and passed the Senate and the House.  The subject matter of the bill?  Making a correction to the employee drug testing law.  It seems as though there was a flaw in the previous year’s bill.  Someone came to the conclusion that an employer would not be able to split a sample of breath.

The employment drug testing law, Iowa Code §730.5, has been amended several times since the 1990s.  It was amended in 2018 to lower the acceptable level of BAC (Blood Alcohol Concentration) from .04% to .02% to mirror the federal standard.  That is all the 2018 legislation did to Iowa Code §730.5.  There was more to do that wasn’t done.

In 2017, the Legislature decided to add “hair” as one of the samples that could be used to determine presence of drug metabolites in an employee’s body.  Naturally, a lobbyist acquired a new client that wanted to analyze employment drug testing results using hair samples.  Hair is a very unreliable source of determining whether someone is impaired, which is what several Labor Unions and I have always argued.  You want safety, not a history of past usage, which may not be the case anymore.  Besides, hair testing has been controversial in how it affects African-Americans.

A recent decision from the United States District Court of Appeals for the First Circuit revived a lawsuit filed by eight police officers, a cadet, and a 911 operator. All are African American. All tested positive for cocaine after a hair follicle test was administered by the Boston Police Department. This was the second time the First Circuit found that the hair follicle test had a statistical disparate impact on African American officers in violation of Title 7 of the Civil Rights Act of 1964.

https://www.natlawreview.com/article/recent-challenges-to-use-hair-follicle-drug-testing

Nonetheless, Iowa Code §730.5 was amended to add “hair”.

“Sample” means such sample from the human body capable of revealing the presence of alcohol or other drugs, or their metabolites, which shall include only hair, urine, saliva, breath, and blood. However, “sample” does not mean blood except as authorized pursuant to subsection 7, paragraph “l”.

In the process of adding “hair” to the list of acceptable means of testing, the Legislature once again reverted to splitting the sample into two components at the time of collection:

Collection of a urine sample for testing of current employees shall be performed so that the specimen sample is split into two components at the time of collection in the presence of the individual from whom the sample or specimen is collected. The second portion of the specimen or sample shall be of sufficient quantity to permit a second, independent confirmatory test as provided in paragraph “i”. The If the sample is urine, the sample shall be split such that the primary sample contains at least thirty milliliters and the secondary sample contains at least fifteen milliliters. Both portions of the sample shall be forwarded to the laboratory conducting the initial confirmatory testing. In addition to any requirements for storage of the initial sample that may be imposed upon the laboratory as a condition for certification or approval, the laboratory shall store the second portion of any sample until receipt of a confirmed negative test result or for a period of at least forty-five calendar days following the completion of the initial confirmatory testing, if the first portion yielded a confirmed positive test result.

The change in the paragraph above was intended to simplify the means of splitting specimens.  In the process of simplification, the drafters may not have realized that breath cannot be split.  Legislature in charge of managing the bill had no idea that the changes were again requiring employers who use breath testing to split the breath at the time of collection.

It’s been two years since this “Flaw in the Law” occurred.  How many employers are not or have not been adhering to the law?

 

 

 

 

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