Drug testing: Iowa Court of Appeals affirms strict compliance with state law required of employers (part 1 of 3)

Russ Samson Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 09/11/2012 at 08:29 AM by Russell Samson

The September 6, 2012, decision of the Iowa Court of Appeals in Skipton v. S & J Tube, Inc. contains some important reminders for employers concerning Iowa's private sector drug testing statute, Section 730.5 of the Iowa Code.

Facts

Amanda Skipton worked for S & J Tube, Inc. on the third shift in a job which required repetitive use of her hands, wrists, and arms. The company submitted a First Report of Injury in which it identified November 6, 2006, as a date of injury for pain in her left wrist. She obtained medical treatment, and was diagnosed with mild left carpal tunnel syndrome. She improved to the point where the workers’ compensation insurance adjuster closed the case on July 13, 2007. In September 2007, S & J – according to the Court’s opinion, after consulting with a named non-attorney in a named drug services business – rolled out a Drug and Alcohol-Free Workplace Policy. By its terms, the policy became effective 30 days after it was announced. On September 13, 2007, Skipton signed a receipt for a copy of the new policy. The policy provided that when, “current member(s) [were] involved in a workplace accident involving an injury which requires medical treatment,” the company would conduct drug testing. On September 27, 2007, Skipton was seen by a doctor because her carpal tunnel syndrome was becoming “more symptomatic.” No new First Report of Injury was filed concerning this visit, and apparently no drug test was ordered. On October 24, 2007, Skipton was seen by an orthopedist for her wrists. At that appointment, Skipton was informed that under the newly promulgated drug policy, she needed to submit to a drug test. A split specimen was collected, and was tested. After speaking to Skipton, the company’s MRO reported a “positive” test for cocaine. Skipton was called in and informed that in accordance with the written policy, her employment was terminated. During the meeting she was given a “Positive Drug or Alcohol Test Notification” form, which she signed. That document told her that she would receive a letter by certified mail within 10 business days. It did not mention the costs Skipton would have to pay to have the second portion of the sample tested. But during the meeting, Skipton stated that a second test would not be worthwhile because it would probably come out positive as well. S & J never sent any “certified letter” as called for by the statute.

Reminder on Unemployment Benefits

In a footnote to the opinion, the Court of Appeals noted that an administrative law judge ruling on Skipton’s claim for unemployment compensation benefits determined the S & J had not met its burden of establishing the discharge was for “misconduct” because the employer did not provide the notice of a right to a confirmatory test on the second portion of the split sample as required by Iowa Code Section 730.5(7)(i)(1). That should come as no surprise to anyone familiar with the Iowa Supreme Court’s decision in Sims v. NCI Holding Corp., 759 NW 2d 333 (Iowa 2009).  Iowa employers are reminded (yet again) that in a hearing on unemployment compensation benefits, they bear the burden of proving misconduct, and thus the burden of proving, if relevant, compliance with all of the provisions of Iowa’s drug testing statute.

The Lawsuit Here

Skipton was informed of the immediate termination of her employment on October 30, 2007. On October 5, 2008, Skipton filed a court action against the company for violation of the provisions of Iowa Code Section 730.5. In November 2009, the district court preliminarily determined that the company had in fact failed to provide either the letter informing Skipton of the results by certified mail, return receipt requested, or to inform her of the costs of the confirmatory test. The district court went on to hold a trial (with no jury) on May 4, 2011. The Iowa Court of Appeals ultimately affirmed an award of $22,805 (plus interest) in back pay, costs of $927.35, and attorney fees of $17,640.

Investigation of Workplace Accidents

Iowa’s drug testing statute authorizes private employers to conduct drug or alcohol testing only in those instances which are specifically set forth in Iowa Code Section 730.5(8). Section 730.5(8)(f) lists, as one such instance: Employers may conduct drug or alcohol testing in investigating accidents in the workplace in which the accident resulted in an injury to a person for which injury, if suffered by an employee, a record or report could be required under chapter 88, or resulted in damage to property, including to equipment, in an amount reasonably estimated at the time of the accident to exceed one thousand dollars. Citing a case involving a criminal charge flowing from a motor vehicle accident, the Iowa Court of Appeals defined the term “accident” to be a, “sudden event or change occurring without intent or volition through carelessness, unawareness, ignorance, or a combination of causes and producing an unfortunate result.” The Iowa Court of Appeals had no problem saying that a cumulative injury (like carpal tunnel) is not an “accident.” Continuing to parse the statutory language, not only must there be an “investigation [of an] accident in the workplace,” there must also be either an “injury to a person” or “damage to property.” There was no claim made of any damage to property with regard to the testing of Skipton. The Court of Appeals also said that based on the record, there was no evidence of a “new injury” when Skipton was required to submit to a drug test in October 2007. According to the Court of Appeals, S & J didn’t even file a First Report of Injury in September 2007. Lessons for Iowa employers:

  • For testing under the “investigation of certain workplace accidents” provision of the Iowa drug testing statute, there needs to be an “accident”
  • The accident must result in either an injury to some person at a severity level described in the statute, or damage to property estimated at the time of the accident to exceed $1,000.
  • The reason for the drug test must be an “investigation of the accident.” It is suggested that timing may be critical: Requiring submission to a test on Monday following the delayed report of an accident which occurred on the prior Thursday may not be seen as meeting the standard.

One wonders why the Iowa Court of Appeals made mention of not only the organization but also the individual which S & J reportedly consulted in setting up the drug testing program in the first instance. There was no further mention of the consultant in the rest of the opinion. It may be a gentle reminder to employers to obtain competent legal help in setting up and administering drug testing programs and not rely on those who are in the business of providing drug testing and drug counseling services. See tomorrow's blog post for more information and lessons for Iowa employers on written drug testing policies and Iowa Code Section 730.5.

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