This morning, Friday, June 25, 2021, the Iowa Supreme Court filed decisions in two cases involving Iowa’s private sector drug and alcohol testing law. Under the decisions, Iowa employers will not be held liable for violating Iowa’s private sector drug and alcohol testing law so long as they “substantially comply” with the provisions of the law.
The first case, Dix v. Casey’s General Stores, Inc., was filed by four former employees of a Casey’s distribution center. Casey’s fired three of the employees after they tested positive for controlled substances in an unannounced drug test. The fourth employee did not produce a large enough urine sample for a test and left work before providing a complete sample, which under Casey’s policy constituted a voluntary resignation based on her refusal to take the test.
Iowa Code § 730.5, which governs Iowa employers who conduct drug or alcohol testing of employees and potential employees, is a complex statute. The law establishes dozens of requirements for employers to satisfy in planning, conducting, and acting upon workplace drug and alcohol tests. This law is complex and applies to nearly every employer in Iowa. Iowa businesses are encouraged to contact an employment law attorney (like the members of BrownWinick’s employment law practice group) for assistance in implementing and carrying out plans to conduct drug or alcohol testing.
The Iowa Supreme Court held that alleged violations of Iowa’s drug and alcohol testing law “should be evaluated using a substantial compliance standard.” If “the employer’s actions fall short of strict compliance, but nonetheless accomplish the important objectives expressed by the particular part of section 730.5 in issue, the employer’s conduct will substantially comply with the statute.”
The Court had previously applied the substantial compliance standard to one provision of the law, but today’s opinion expands that application to the entire drug and alcohol testing law. The Court’s ruling provides Iowa companies with much greater flexibility in carrying out drug and alcohol testing and recognizes that employers who make a good faith effort to comply with the law should not be punished for trying to maintain a safe workplace.
The drug and alcohol testing law allows Iowa companies to conduct unannounced drug and alcohol testing on randomly selected “pools” of employees. Iowa companies can use three different pools: all employees at a worksite, all full-time employees at a worksite, or all employees in a safety-sensitive position at a worksite. In this case, Casey’s chose to conduct unannounced testing on all employees in a safety-sensitive position at its Ankeny warehouse.
Two of the employees claimed they were not in safety-sensitive positions, as they spent their time counting cigarettes inside a caged area of the warehouse. Casey’s claimed these employees were in a safety-sensitive position because they had to traverse the warehouse to get to and from the cage. The employees argued that “safety sensitive” referred to the duties they performed, while Casey’s argued that, as the employer, it should be allowed to decide which jobs are “safety sensitive.”
The Court sided with the employees, holding that in deciding which employees are in “safety sensitive” positions, employers “must base their designations on the functions of the job an intoxicated person could be performing that would lead to the type of serious accident identified [in the law], not just the environment in which the job is performed.”
The Court also clarified some minor procedural questions from the law. For instance, employers should provide employees with a list of specific drugs to be tested with each test, and employers may rely on a medical review officer to gather information from an employee about factors that could impact the test.
The Court’s decision also restricts an employee’s ability to sue an employer for violations of the law that had no impact on the outcome of the drug or alcohol test. For example, the fired Casey’s employees argued that the way employees were selected for testing was flawed and complained about the use of a bathroom (with individual stalls) for sample collection. The Court decided that the employees were not “aggrieved” by these alleged technical violations because those violations did not cause their alleged injuries. In future drug and alcohol testing cases, employees will need to connect an alleged violation to some resulting harm instead of merely throwing stones at every aspect of a complex drug or alcohol testing scheme.
In Woods v. Charles Gabus Ford, Inc., the Court applied the “substantial compliance” standard discussed in Dix. Woods tested positive for a controlled substance during an employment-related drug test. Charles Gabus Ford sent written notice of the results to Woods and advised him of his right to request a confirmatory test but failed to specify the cost of the test as required by the law. Charles Gabus Ford argued that its notice “substantially complied” with the law.
The Court disagreed, holding that Charles Gabus Ford’s failure to provide the employee with the cost of the confirmatory test was not substantial compliance because “[w]ithout knowing the cost of a retest, a person does not have a meaningful opportunity to consider whether to undertake a confirmatory test.”
The Court’s application of substantial compliance to all of Iowa Code § 730.5 is a welcome change for Iowa employers. Even so, Iowa’s private sector drug and alcohol testing law remains complex and Iowa businesses should contact an employment law attorney for assistance in planning, implementing, and carrying out a drug and alcohol testing policy.
For questions, contact a member of BrownWinick’s Employment & Labor practice.