Although Iowa’s drug testing statute was enacted more than 30 years ago, it is still considered one of the most difficult laws in the country for purposes of employer compliance. The 10-page law includes provisions addressing permissible types of tests, written notice requirements, rehabilitation for positive alcohol test results, split-specimen testing, and mandatory supervisor training, among other things. Available remedies under the statute include reinstatement, back pay, and equitable relief such as attorneys’ fees. See Iowa Code Section 730.5.
The legislature has amended the statute periodically over the years. In 2017, an amendment clarified that hair follicle testing is appropriate only for pre-employment drug testing. The Governor signed another amendment into law in late-March 2018, which will allow employers to take action based on an alcohol test result of .02 grams of alcohol per two hundred ten liters of breath. Prior to the 2018 amendment, employers could not take action for alcohol test results below .04 BAC. The amendment is effective July 1, 2018.
Employers easily can violate the technical aspects of the law. For example, in 2012, the Iowa Court of Appeals held that an employer violated the statute when it provided an employee with a hand-delivered notice of her positive test results instead of sending it by certified mail as required by the statute. See Skipton v. S&J Tube, Inc., 822 N.W.2d 122 (Iowa Ct. App. 2012). The notice also omitted the cost of a confirmatory re-test.
There has been an increase in lawsuits alleging violations of the statute in the past several months. Since October 2017, at least five new lawsuits have been filed alleging violations of the Iowa drug testing law.
Some of these lawsuits have alleged claims for wrongful discharge in violation of public policy based on the alleged violation of the drug testing statute. The viability of a wrongful discharge in violation of public policy claim is significant because it expands the range of potential damages a plaintiff can recover. Specifically, the Iowa Supreme Court has held that punitive damages may be awarded in wrongful discharge cases. See Jasper v. H. Nizam, Inc., 764 N.W.2d 751 (Iowa 2009). In a recent case before the Iowa District Court for Delaware County, the employer conceded violating the drug testing statute but argued that the drug testing statute was the exclusive remedy. The court disagreed and granted summary judgment to the plaintiff on her wrongful discharge claim. See Ferguson v. Sanders, et al., Case: LACV008271 (Jan. 17, 2018). A jury later awarded the plaintiff $57,606 in damages, including $12,000 in pain and suffering.
Employers who conduct drug testing in Iowa must ensure that their policy complies with the law and should consider consulting with counsel before taking adverse employment actions based on drug or alcohol test results.