Employment Law Questions? Ask an Employment Lawyer.
Thank you for your question. Although I am an attorney, I cannot represent you. However, I will give you the most thorough information I am able?
According to Iowa Code Section 730.5 Private Sector Drug-Free Workplace (full text available here), you have the following options:
Upon receipt of a confirmed positive test result for drugs or alcohol which indicates a violation of the employer's written policy, you may: (1) Require an employee (pursuant to a written policy/requirement that the employee enroll in an employer-provided or approved rehabilitation, treatment, or counseling program) to attend rehabilitation, treatment and/or counseling; (2) Suspend the employee, with or without pay, for a designated period of time; (3) Terminate the employee; (4) Refusal to hire the employee (if this is a prospective employee); and/or (5) Take other adverse employment action in conformance with your written policy and procedures.
apprecviate your reply - however this is not a question of policy alothough this is helpful - my question is what rights does the positive donor have with immediaye rerspect to this regulation?
The rights that the positive donor have depend on the workplace policy that is in effect at the time that they provide the positive test. The employer must abide by their policy, which means if there is a policy in place that forces rehab and/or counseling, the employee is able to ensure they are afforded this opportunity. However, if the policy calls for termination and/or suspension, then the donor does not have significant rights.
One right that may help is that to the extent the donor feels that the test gave a false positive, they can demand a second test. Adverse action (absent suspension without pay) may not be taken until that second test is taken and the results are determined by the requisite medical personnel.
are you suggesting a second or new trst and not a retest of the original for the positive result w/o levels and is this policy required or regulation required
I am happy to answer the question, but first I need to know what type of test was conducted (i.e. blood or urine) and does the employer have any written policy regarding the testing?
urine workplace test - Their is a policy
When the urine is collected initially, it should be split into two samples. If one tests positive, the employee can ask that the second sample be tested.
this was done and the second lab did not have the ability to complete due to interfarance. The donor several times said he did not care what we had to do to get an answer as he had to return to work, a third transfer was made and the 3rd lab did confirmed the positive. The donor then said he did not giver any permission for the 3rd lab. As he never did do more then a generic verbal to do what ever we had to. I am looking for any thing in the regs that could attch him to his silent permission
Unless you have a written policy that covers this, this type of situation is not spelled out in the regulations. Generally, the same lab would handle the initial sample provided and split it into many samples. The lab does not need to change every time a sample is tested. Additionally, if the sample is being passed from lab to lab, the chain of custody can be questioned (unless he submitted a new sample to the third lab.) Ultimately, if he gave the sample for the purposes of being tested, it may not matter where it was tested (if the lab has proper accreditation.) You may not require his permission for each sample to be tested at each lab. He does have the ability to question why there were so many labs involved and why the initial lab did not handle the testing of additional samples.
all the feedback is appreciated - FYI the statuate for IOWA is very defined and unbending as we have learned the hard way!! after continued research. I also know now that this information is shared by many the wise donor as a very popular way to beat a positive drug test in IOWA .