Posted on 06/21/2017 at 01:30 PM by Russell Samson
On May 9, 2017, then-Governor Terry Branstad signed Iowa Senate File 32, “An Act relating to private sector employee drug testing.” The amendment will become effective in July 1, 2017. S.F. 32 amends the current law, Iowa Code section 730.5. There would appear to be two main substantive changes made to the current law by the legislation. In an earlier post, I discussed so much of the amendment as would permit the use of “hair” as a sample for pre-employment drug testing. In this post, I discuss the second.
Iowa Code Section 730.5(7)(f)(2), discusses the requirements for breath testing for alcohol. The Iowa statute, prior to the enactment of S.F. 32, required that an Iowa employer wishing to conduct such breath-alcohol testing must include provisions in its written policy standards for evidential breath testing devices, for alcohol screening devices, and for the qualifications for personnel administering initial and confirmatory testing.” Prior to S.F. 32, Iowa law mandated that those standards be consistent with “regulations adopted as of January 1, 1999, by the United States department of transportation governing alcohol testing required to be conducted pursuant to the federal Omnibus Transportation Employee Testing Act of 1991.”
Section 4 of S.F. 32 amends that date in Iowa Code Section 730.5(7)(f)(2) – deleting January 1, 1999 and inserting July 1, 2017. Given the general requirement of the federal Administrative Procedures Act, 5 U.S.C. § 553(c) that a “final” rule be published in the Federal Register at least 30 days prior to its effective date, one can say with some degree of certitude that the “regulations adopted as of July 1, 2017” will be identical to the regulations that were adopted as of May 9, 2017 (when the amendment was enacted). And that those regulations will be identical to the regulations that were in place on January 1, 2017. Moreover, that those regulations will be identical to the regulations that were in place when Volume 1 of Title 49 of the Code of Federal Regulations – which includes 49 CFR Part 40, the DOT’s regulations on testing to be conducted pursuant to the Omnibus Transportation Employee Testing Act of 1991 – was published effective October 1, 2016. That document is available as published here. If you look, you will note that 49 CFR Part 40 has changed since January 1, 1999.
Iowa employers are reminded that any drug or alcohol testing of employees must be done pursuant to a written policy. And they are reminded that if breath-alcohol testing is to be done, that written policy must have standards that are consistent with those of the U.S.D.O.T. While the July 1, 2017 date may present some issues, Iowa employers are encouraged to check their written policy on alcohol testing. Does it contain the January 1, 1999 date? The impending amendment made by S.F. 32 may require that you not only amend your policy, but also provide copies of the amended policy to “every employee subject to testing.”
Iowa employers are urged to seek promptly the advice of a competent professional.
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