Workplace Drug & Alcohol Testing And Your Rights – What To Know In Iowa And Nebraska

At Fiedler Law Firm, P.L.C., our attorneys often receive questions from potential clients about their rights regarding mandatory drug and alcohol testing. Here is a basic summary of what employers can require:

• Employers generally can test job applicants for illegal drug use as part of the employment hiring process
• Drug and alcohol tests can be administered if an employer has reasonable suspicion that an employee is under the influence on the job
• Random drug tests can be administered by an employer as long as the testing is truly random and done by a third-party company, not the employer

You’ll find more in-depth information about your rights and obligations below. If you have additional questions or need legal representation, please contact us to learn how we can help.

Prospective And Current Employees

An employer may request samples of urine, saliva or breath – nothing else. Blood samples may be tested only when an employee is being treated by a health care professional following a workplace accident, so long as the employer did not suggest or encourage the test. All samples must be collected under sanitary conditions and with respect for your privacy. For example, employers can’t watch you produce a urine sample unless they have reasonable suspicion to believe you’re going to alter or substitute the specimen.

The employer must allow you to provide information about prescription or nonprescription drugs you have recently used, along with any other relevant medical information. The employer has to give you a list of the drugs it’s going to test for.

If the initial test is positive, the employer must confirm the results by having the lab test it again. The employer may suspend you pending the confirmation test, but can’t fire you or refuse to hire you until it obtains a confirmed positive result.

Any test results should normally remain confidential.

Current Employees

Employers may conduct random, reasonable suspicion, or post-accident drug and alcohol testing of current employees so long as the testing and any subsequent action (suspension/discipline/firing) is carried out pursuant to the employer’s written policy and complies with the law. Employers must provide current employees with a copy of their drug/alcohol testing policy.

“Random” drug testing occurs when an employer requires a portion of its workforce to undergo unannounced drug testing. The selection of employees must be done by a company other than the employer, and selection must be generated by a random number generator on a computer. The employer cannot pick and choose which employees to include in the “random” test.

When an employer has a confirmed positive result for a current employee, it must notify the employee, in writing, by certified mail, of the results of the test and the employee’s right to request a second confirmatory test within seven days. The worker gets to choose the lab that will conduct the second test and must pay the fee of the test in advance, but if the second confirmatory test is negative, the employer has to reimburse the worker for the cost of the second test.

An employer may take disciplinary action against an employee once it receives a confirmed positive result, but the disciplinary action must be uniform and must be set forth in its written policy. The disciplinary action may only be based on the result of the test – no other factor can be considered.

If you think you were improperly subjected to a drug or alcohol test, or that your test didn’t follow the law, you should consult a lawyer of your choice.

Prospective Employees

Drug and alcohol testing may only be conducted within the terms of a written policy, and a copy of that policy must be available for people who are applying for jobs.

When an employer has a confirmed positive result for a prospective employee, it must notify the prospective employee, in writing, of the results of the test; the name and address of the medical review officer who analyzed the results; and the prospective employee’s right to request medical records. If you were denied employment because of a drug test, but were never given written notice of the results of the test or your right to request records related to the test, you should call an attorney.

Treatment/Employee Assistance Programs

Employers that engage in drug testing are required to have an “awareness program” to inform employees of the dangers of drug and alcohol use in the workplace. They must either provide an Employee Assistance Program or maintain a resource file of alcohol and drug abuse programs. In certain circumstances, an employee who tests positive for alcohol must be provided the opportunity to attend rehabilitation, and the employer may be required to pay for a portion of that rehabilitation.

Common Drug And Alcohol Testing Issues And How An Attorney Might Respond

Below, we provide some scenarios clients commonly face and what our attorneys would advise that they do in response.

Scenario one: “My boss said I need to submit to a drug and alcohol test. I’ve never been told our company conducts drug and alcohol testing and I’ve never received a testing policy. Do I have to submit to a test?”
Attorney response: No. If an employer wants to conduct drug and alcohol testing, it must first have a policy that has been provided to employees. If there is a policy, the employer has to follow it.

Scenario two: “I tested positive on a drug test but don’t understand how. My employer fired me because of the test results, but I never received anything about my results. Is that legal?”
Attorney response: No. An employer may discipline or fire an employee based on confirmed test results. However, the employer must send you the results of your test by certified mail, return receipt requested. The letter must also let you know that you have the right to retest the sample, that the retesting can take place at a facility of your choosing and the cost of the retest. You have to pay for the retest, but if the result comes back negative, the employer has to reimburse you.

Scenario three: “I asked for medical treatment for carpal tunnel and my employer says that now I have to submit to a drug test. Can they do that?”
Attorney response: No. An employer cannot drug test any and all employees who seek medical treatment related to a workplace injury. Assuming the employer has a valid drug-testing policy, it is allowed to test employees who are injured due to a specific workplace “accident.” Repetitive-use injuries like carpal tunnel or tendonitis do not arise from a single accident, so they cannot provide the basis for a drug test.

Scenario four: “I smoked weed in Denver a few weeks ago. I just tested positive for marijuana at work. Can my employer punish me for that even though it was legal in Colorado?”
Attorney response: Yes, as long as your employer followed all the other requirements for testing. The general rule is “employment at will,” which means you can be fired or treated badly for any reason or no reason, as long as the reason is legal. Despite the fact that pot is legal in Colorado, even Colorado employers can have a rule that says its employees are not allowed to use drugs.

Have Questions About Your Workplace Rights? Contact Us For Answers.

Fiedler Law Firm has offices in Johnston, Iowa, and Omaha, Nebraska, and we serve clients throughout both states. To schedule your initial consultation, you can reach out online or call our Johnston, Iowa office at 515-303-8210 or our Omaha, Nebraska office at 402-281-3501.