Post-rehab alcohol testing: You can in Iowa, but should you?

Although Iowa's private sector drug testing law permits employers to conduct post-rehabilitation alcohol testing, a recent case reminds that such testing requires consideration of disability discrimination laws. The October 26, 2012, decision of the Superior Court of New Jersey, Appellate Division in A.D.P. v. ExxonMobil Research and Engineering Company, 2012 WL 5273469 teaches that 'blanket' random post-rehabilitation drug / alcohol testing policies can be a trap for the unwary. In the ExxonMobil case, A.D.P. was a long-time top performing employee. Following the death of her husband, her co-workers noticed depression and other conditions, as well as a slip in performance. Nonetheless, she was within the 'middle third' of employee performance. In August 2007, after some 29 years of successful employment, A.D.P. disclosed to a company nurse that she was an alcoholic and was going to check herself into a rehabilitation program to address both her alcohol dependency and her depression. At ExxonMobil, there was a written substance abuse policy which provided in part for an 'after-care contract' to be signed by any employee returning from substance abuse rehabilitation. As a part of that contract, the individual promised to 'maintain total abstinence from alcohol and drugs not prescribed by a physician' and to submit to periodic, unannounced testing. The contract also provided that any positive test or any refusal to submit to a test when directed per the contract would result in discipline – discipline understood as termination. A.D.P. signed one of these after-care contracts. From October 2007 through August 20, 2008, A.D.P. underwent and passed nine random breathalyzer tests. Two days after passing the ninth test, A.D.P. was given a tenth random test which resulted in readings of 0.047 and 0.043. Note that Iowa's private sector drug testing law requires that if an employer conducts alcohol testing, it must specify in its written policy a 'standard for alcohol concentration which shall be deemed to violate the policy' and cannot be less than 0.04. So the numbers reported on the confirmed breathalyzer test could be a 'positive' test under Iowa's law. A.D.P.'s employment was terminated solely based on the August 22, 2008 test results. A.D.P. sued her former employer, claiming, among other things, that the termination of her employment was unlawful disability discrimination. Reversing the trial court's order granting summary judgment for ExxonMobil, the New Jersey appellate court concluded that A.D.P. presented direct evidence of unlawful discrimination. It concluded that because ExxonMobil's 'requirements of total abstinence and a minimum of two years of random testing were only imposed upon employees who were identified as alcoholics, [thus] demonstrating ‘hostility toward members of the employee's class.'' In addition, the New Jersey appellate court found that A.D.P. offered proof, through deposition testimony of the decision-makers at ExxonMobil, of a 'direct, causal connection between that hostility and the challenged employment decision.' It was uncontested that A.D.P's employment was terminated solely because of violation of the specific provision of the after-care contract, and not because of any deficiency in her job performance. The case was remanded to the New Jersey trial court to decide a very limited issue: whether ExxonMobil 'would have made the same decision if illegal bias had played no role in the employment decision.' Given the company's sole reliance on the drug test for the termination decision, ExxonMobil is not likely to prevail. The New Jersey appellate court noted that the EEOC had addressed the question of whether, under the Americans with Disabilities Act, an employer may subject an employee who has been off work in an alcohol rehabilitation program to periodic testing when s/he returns to work, in its 2000 Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, #19. The EEOC determined as follows:

Yes, but only if the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat in the absence of periodic testing. Such a reasonable belief requires an individualized assessment of the employee and his/her position and cannot be based on general assumptions. Employers also may conduct periodic alcohol testing pursuant to "last chance" agreements.

The ExxonMobil case did not involve drug or alcohol testing of an individual in a safety-sensitive job who had committed a USDOT drug or alcohol regulation violation. As is explained in the DOT regulations, an employer is obligated to carry out follow-up testing after a positive test and rehabilitation if it is going to permit the individual to perform a safety-sensitive function. Even there, the USDOT has opined that under its regulations, employers must not impose additional testing requirements that go beyond the [Substance Abuse Profesional]'s follow-up testing plan.' Iowa courts have held that the state's drug testing statute authorizes private employers to conduct drug or alcohol testing, but only in those instances specifically set forth in Iowa Code Section 730.5(8). A series of posts discussing one such decision can be found here. And here. And here. One of the instances specifically identified for authorized drug and alcohol testing under Iowa law states, 'Employers may conduct drug or alcohol testing of employees during, and after completion of, drug or alcohol rehabilitation.' Iowa Code Section 730.5(8)(b). Note the use of the word 'may,' meaning post-rehab testing is permitted but not required. Iowa courts also have recognized that alcoholism can be a 'disability' under the Iowa Civil Rights Act. Consol. Freightways, Inc. v. Cedar Rapids Civil Rights Comm'n, 366 N.W.2d 522, 527 (Iowa 1985) Casey's Gen. Stores, Inc. v. Blackford, 661 N.W.2d 515, 520 (Iowa 2003) While it is not clear that an Iowa court would find the New Jersey court's reasoning persuasive, disability discrimination protections are most certainly something that an Iowa employer should keep in mind before adopting or implementing post-rehab restrictions on employees. Here are a few pointers for Iowa employers: First, across-the-board policies or standardized 'contracts' that impose post-rehab testing without an individualized analysis of the need for it are suspect under the ADA (see the EEOC's guidance, quoted above) and the ICRA. Second, imposing a requirement that employees returning to work from drug or alcohol rehabilitation engage in 'no use of alcohol and no use of prescription drugs except as lawfully prescribed' is overly restrictive and is unlikely to hold up under discrimination laws. Third, careful use of 'last chance agreements' remains a best practice. Even the New Jersey appellate court began its discussion with the observation: 'At the outset we emphasize a fact that informs our analysis. It is undisputed that plaintiff was not subject to testing and termination pursuant to a last chance agreement.' The New Jersey court relied upon a decision of the Eighth Circuit Court of Appeals (the jurisdiction of which includes Iowa) which described a 'last chance agreement' as a contract between an employer and an employee following an incident that would normally call for discipline, where the disciplinary action is suspended during some probationary period. Although Iowa's drug testing statute requires that an employer, in its mandatory-under-the-law written policy, specify a uniform disciplinary action that an employer will take against an employee upon receipt of a confirmed positive test result, and further that the discipline not take into account anything other than the test results, an exception is allowed. That exception applies to certain eligible employees whose first violation of the employer's written policy is a positive alcohol test. Those employees must be given a one-time opportunity for mandatory rehabilitation. So long as the employee complies with the requirements of, and 'successfully completes,' the rehabilitation, the employer cannot take any adverse action against the employee for a first-time positive alcohol test. The Iowa statute also expressly recognizes that a rehabilitation program 'may include additional drug or alcohol testing.' This scheme in Iowa's law appears to be a 'last chance agreement' mandated by law, but it is still under a certain amount of control by the employer. It is interesting to recall that the 'alcohol test' that A.D.P. failed -- which led to the termination of her employment -- was the first time that A.D.P. had failed an alcohol test in her some 29 years of employment at ExxonMobil. Setting aside for a moment the questions about the propriety of requiring the testing in the first instance, had A.D.P. been an Iowa employee, ExxonMobil would have been required to include in its written drug testing policy an opportunity for 'rehabilitation' as required by Iowa's law. Leaving a final lesson for Iowa employers: Self-serving as it may be, employers engaging in drug testing under Iowa's statute need to be mindful that the topic is such that the advice of a competent professional prior to taking action may save many problems down the road.