Posted on 11/29/2012 at 03:08 PM by Russell Samson
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 states 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 courts 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 EEOCs 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 Iowas 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 employers 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 Iowas 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 Iowas law. Leaving a final lesson for Iowa employers: Self-serving as it may be, employers engaging in drug testing under Iowas 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.