BILL WOULD BEEF UP DRUG-TESTING LAWS

Workers groups say it gives employers too much power, but advocates say it's
long overdue.

Highlights of Drug-Testing Bill

Testing

Bill allows testing of urine or another sample 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.

PROSPECTIVE employees.

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 actions

If 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.

TERMINATE employment.

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 positives

The 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.

SOURCE: House Resolution 299

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.

Employer's Weapon?

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.

Companies Waiting

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.