The Des Moines Register
Friday, March 6, 1998, Page 10S
Bill would beef up drug-testing laws
Workers groups say it gives employers too much power, but advocates say it's long overdue.
By LYNN HICKS
REGISTER BUISNESS WRITER
Highlights of Drug-Testing Bill
SOURCE: House Resolution 299
Bill allows testing of urine or anothersample from the human body except blood - revealing the presence of alcohol and other drugs.Employers may conduct: Unannounced testing of...
ALL employees at a particular site.
EMPLOYEES in safety-sensitive jobs. They may also test... DURING and after completion of substance abuse rehabilitiation.
WHEN there's reasonable suspicion of substance abuse.
AFTER certain types of accidents. Treatment
The bill provides rehabilitation only if:THE employee tests positive for alcohol, and the concentration is between .04 and .10;
EMPLOYER has more than 50 employees;
EMPLOYEE has worked for employer for 12 of the last 18 months;
COSTS are paid by a benefit plan or employee's insurance. If there is none, the costs will be split equally, except the employer shall pay no more than $2,000.
Disciplinary actionsIf an employee fails a test (and the positive test is confirmed), or if an employee refuses to take a test, an employer may:
REQUIRE the employee to enroll in an employer-provided or approved rehabilitation program.
SUSPEND employee, with or without pay.
AFTER A test for alcohol or other drugs, an employer may suspend an employee pending the outcome of the test. If the test is not confirmed positive, the employer shall reinstate the employee with back pay and 18 percent interest.
False positivesThe employer is protected from liability unless the employer knew or clearly should have known a false positive test result was in error and ignored the correct test result.
A new drug-testing bill approved Wednesday night by
the Iowa Legislature would give Iowa employers a new tool chest of choices.
They could randomly test their workers for drugs and alcohol, forcing employees to provide a sample every day if employers wanted. They could test if they have a reasonable suspicion that a worker is under the influence. They could require workers to get treatment after a confirmed positive drug test, or they could fire them.
Supporters say workers have options, too: They can choose to get off and stay off drugs and help create a safer, more productive workplace.
"I hope this bill will encourage people to step forward and ask their employers, 'Would you help me with my problem?,'" said James Aipperspach, president of the Iowa Association of Business and Industry. Most employers won't just throw away valuable workers, especially with low unemployment, he said.
Critics worry that employers will wield their new tools as weapons. Businesses would have more power than the police, opponents complain, and could use their new powers to harass shop-floor activists and other perceived troublemakers.
"It's an absolute attack on worker privacy," said Mark L. Smith, president of the Iowa Federation of Labor, AFL-CIO.
Businesses must make decisions if Gov. Terry Branstad signs the bill into law, as he is expected to do. The bill won final legislative approval Wednesday night when the House of Representatives passed it on a 53-46 vote. The law would go into effect 30 days after signing.
The bill doesn't force employers to do testing. And it only applies to private-sector workers; governmental bodies cannot randomly test their workers unless there is an overriding safety factor.
Some of Iowa's largest employers - including Deere & Co. and Maytag Corp. - support the changes but say they need to study the bill before deciding whether they will begin random testing or make other changes in their policies.
Sen. Steve King, R-Kiron, who managed the bill in debate, expects random testing will be popular with small employers such as himself, the owner of a construction company. The bill would free businesses with fewer than 50 employees from rehabilitating workers who test positive for drugs or alcohol.
Where Laws Collide
The bill also would ease restrictions on pre-employment testing, another popular issue with employers.
But King expects most employers to make only subtle changes in their drug-testing policies. "Not very many businesses are licking their chops and ready to jump into this," he said.
Doug Horstman, Maytag's vice president of governmental affairs, agreed. The Newton appliance maker needs to take a careful look at the bill, he said, but he doesn't expect the company to begin "a huge campaign of testing."
Maytag does some testing now, especially after accidents, Horstman said. He said the company will continue to rehabilitate employees who test positive for drug use, even though the new bill doesn't require it.
Like Maytag, most of the bill's backers say the current law jeopardizes the safety of workers. The 11-year-old law generally limits testing to a few specific instances in which workers are given advance notice. An employer must have probable cause - basically, observing the worker take drugs or alcohol - before ordering an unannounced test. One-time proof of drug use might not result in firing, and the employer must pay the costs of evaluation and treatment not covered by insurance.
A High Priority
Those restrictions have caused many employers to avoid testing at all. Changing the law has been a high priority for the manufacturing and construction industries and others whose employees work around heavy machinery.
Some largely white-collar employers, such as the Principal Financial Group, also supported the bill. But Principal does not test workers and has no plans to change its policy, said spokeswoman Sara Opie.
One employer who did not support the bill was Sen. Tom Flynn, D-Epworth, who owns a concrete business in Dubuque and must randomly test his truck drivers according to federal law. He supports much of the bill's provisions. And allowing random testing and lowering the individual-testing standard to reasonable suspicion would help create a safer workplace, he said.
Bill Goes Too Far
But Flynn says the bill goes too far in allowing unlimited testing. "This provides a tool for the unscrupulous employer to be able to harass workers," he said.
King, who owns a construction company, said that if an employer tested all workers every day, they would drive away their best workers. He said he has promised to revisit the bill next year if reports of harassment arise.
He emphasized that the bill provides ample protections for employee rights. Employers must have a written policy, cannot test blood and must meet other requirements that are not in current law. "It's the most employee-friendly bill in the country," he said.
Opponents envision nightmare scenarios. While the bill says employers must collect samples "with regard for the privacy with the individual," it also says that employers shall try to make sure that the sample isn't contaminated.
That means supervisors must observe workers giving samples, critics say, and nothing would prevent managers from observing workers of the opposite sex urinate. Democrats brought up the case of a 15-year-old Des Moines girl who had to give a urine sample as part of her probation. A male medical technologist observed her giving a sample at the Polk County Health Department last year, the teen complained. She later committed suicide; no reason was disclosed.
In Wednesday night's House debate, Rep. Keith Weigel, D-New Hampton, introduced an amendment that would have protected minors from being observed by a member of the opposite sex. "It could be anyone's daughter or granddaughter being watched," Weigel said. "It's just not right."
The amendment was rejected. If the bill becomes law, Democrats will try to address that and other flaws" next year, Weigel said.
King called the complaint "absurd." Sexual harassment laws would prevent such an event from happening, he said.
The bill also has many wondering about compliance with the Americans with Disabilities Act and the Family and Medical Leave Act. For instance, if substance abuse fits the definition of a serious health condition, could employers fire a worker?
For all the questions it raises, the bill could also provide some answers.
Supporters and opponents disagree whether a drug problem exists in the workplace. If it becomes law, the bill would require a laboratory doing business for an employer to file an annual report to the state showing the number of tests conducted, the number of positive and negative test results and the types of drugs found.
With reports of methamphetamine invading Iowa, "this bill is coming at the right time," Horstman said.
Lynn Hicks can be reached at
email@example.com or (515)
The Des Moines Register
Friday, March 6, 1998, Page 10S