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Posted on 06/08/2017 at 08:00 AM by Russell Samson
On May 9, 2017, then-Governor Terry Branstad signed Senate File 32, “An Act relating to private sector employee drug testing,” amending Iowa’s private sector drug-testing statute. The amendments will change Iowa Code section 730.5, effective on July 1, 2017.
Two main substantive changes appear to have been made to the current law by this legislation. This post discusses the first – an amendment to permit “hair” as one of the samples that may be used to conduct drug testing. In my next post, I will discuss the second – an updated reference to federal regulations.
S.F. 32 expands the bodily samples that can be used by private sector employers when drug testing to allow for testing hair. However, that expansion is limited. As the last paragraph of the legislation states: “Employers may conduct hair testing of prospective employees only.”
The “prospective employees only” provision was added by an amendment in the Iowa House after the bill had been passed by the Iowa Senate; the amendment was subsequently concurred in by the Senate by a vote of 47-3. Iowa’s law requires that drug-testing samples from current employees be split into two components. A current employee can choose to have confirmatory test at an “approved” laboratory of the employee’s choosing on the second portion. Applicants do not have this same right. Limiting the testing of hair to applicants only avoids the thorny issue of how to split hairs.
At this point, I am not recommending that Iowa employers amend their drug testing policies and start using hair samples for drug tests on prospective employees because the mechanics it present a host of issues.
How Will Hair Samples Be Collected?
Under the amendment, the hair sample to be tested cannot be longer than 1-1/2 inches and it “must be limited to the portion of the hair closest to the skin.” Where will that hair sample come from? The legislation does not say; It does require privacy if collection of the sample “would entail removal of an article of clothing.”
One supplier of hair tests states that if the donor has no head hair or hair shorter than ½ inch long, the collector may use chest, underarm, leg, or facial hair — in that order of preference. Think for a moment about how that might play out at a collection facility. Who is going to be collecting hair samples on your behalf, and what standards and guidance will they be using to do so? Some people shave and wax hair from their body. What happens if, indeed, there is not sufficient amounts of hair – is that a refusal to test? Also, will the applicant be so put off by hair collection process that s/he may determine that a job may not be worth the process – costing you an employee under the “refusal to test” provisions of your policy?
Disparate Impact Discrimination for the Follicly Challenged?
Given that federal and state laws prohibit discrimination based on age and disability, all Iowa employers should expect to receive applications from persons who may be follicly challenged. I can foresee the possibility of disparate impact discrimination claims from older and/or disabled applicants who are more likely to suffer the indignities of removing an article or two of clothing for the collection specialist. All Iowa employers considering testing hair for the presence of drugs need to think about from where those samples might be taken, how they will be collected from persons with limited hair, and whether that might create liability under laws other than drug testing.
Gender Match for Observed Hair and Urine Collections
As a generalization, observed urine collections are the exception. When it happens, Iowa’s law mandates that the gender of the person directly monitoring or observing the collection of a urine sample be the same as the donor. S.F. 32 extends that mandate to the collection of a hair sample. As of July 1, 2017, the observer/monitor “shall be of the same gender as the individual from whom the hair or urine sample is being collected.” The issue of gender may not have been an issue at the forefront when the Iowa private sector drug testing law was first adopted in 1998. But figuring out who is the same gender as another person is not as crystal-clear today as it was 19 years ago. Does the fact that the General Assembly believed it important to impose a same-gender standard for the collection of hair samples give some insight into what the legislators believed about how those collections might occur?
What Are the Standards for Drug Testing of Hair Samples?
Using hair as the sample also raises questions about what levels of drugs will constitute a positive test result. There are specific, uniform standards regarding what level of a substance will result in a positive test result for various substances when urine is tested. While smaller levels may be detectable through testing, those smaller amounts have been determined to not equate to illegal use. The most concrete evidence of that is that the United States department of health and human services, substance abuse and mental health services administration (SAMHSA) – specifically referenced in Iowa’s law – raised the cut-off level for opiates from 300 ng/mL to 2,000 ng/mL. The testing could detect and report on the lower level, but that lower level resulted in false positives being generated by such things as poppy seeds in food. The laboratory test result, the number, was accurate and reliable in terms of what it found, but it was determined it may not reflect illegal use.
Does Your MRO Know How to Evaluate Results from Hair Samples?
Under Iowa law, any positive laboratory test result must be reviewed by a Medical Review Officer. It is the MRO who is to make the formal report to the employer of the results of the test. That report, in turn, generally is made only after seeking further input from the donor. If you are an Iowa employer considering hair testing for applicants, do you have an MRO who is willing to issue, who is competent to issue, a test result when hair is used as the sample? This is important to Iowa employers given that Iowa Code Section 730.5(15)(b) provides that if there is a challenge to a drug test “the employer has the burden of proving that the requirements of this section were met.”
Change Policies Before Testing Hair
Finally, readers should recall that Iowa’s law requires that any drug or alcohol testing be done pursuant to a written policy in place before the testing is conducted. That requirement has not changed. So, if you are an Iowa employer considering taking advantage of the hair testing amendment to Iowa’s private sector drug testing law for prospective employees, you will need to revise your written policy.
This balding gray-hair counsels that any Iowa employer seek the advice of competent counsel before taking any final action on using hair samples for all or part of a pre-employment drug test.
The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.
- Russ Samson