Statute supercedes the written policy (part 2 of 3)
Posted on 09/12/2012 at 08:34 AM by Russell Samson
As noted in yesterday's blog post, the S & J written drug testing policy asserts that employees who are 'involved in a workplace accident involving an injury which requires medical treatment' will be tested. At trial, S & J presumably presented testimony that notwithstanding the language of the policy, any time the company sent an employee to a doctor for medical treatment, the employee would be tested. That is, of course, not what the statute allows. Merely because an Iowa employer incorporates into its required written drug testing policy a situation where it tells employees it is going to test does not provide 'authority' to conduct the test. One example that is seen with some regularity is a provision that employees who are returning from an approved leave of absence in excess of 'X' will be required to submit to, and pass, a drug test before being permitted to return to active employment. That type of testing is not authorized in Iowa's statute anywhere. More lessons for Iowa employers:
If you have a written drug / alcohol testing policy under Iowa Code Section 730.5, review all of the instances listed in that policy where you tell employees testing may be conducted, and make sure each and all comply with those situations specified by the statute.
One of the requirements imposed on Iowa employers that do drug testing under the statute is for ongoing 'training' for supervisory employees involved in the testing. While not mentioned by the Iowa Court of Appeals, is one comfortable in assuming that an HR professional testifying that a policy which makes specific reference to 'involved in a workplace accident' does not require that there be a 'workplace accident' for a test has been adequately trained?
See tomorrow's blog post for an explanation why Skipton could still be terminated even though she was an admitted drug user.
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