Alcohol and Drug Test and Collective Bargaining
Index
Part 1 – Overview of Iowa Alcohol and Drug Testing Law 1
Who may be tested? 2
What records must the employer keep? 2
When can actual testing occur? 3
Who pays for drug testing? 3
What are the legal requirements for sample collection? 3
What are the legal requirements for confirmatory drug testing 4
What happens when the test is positive? 4
Can an employer be sued for taking disciplinary action against a worker for a positive drug test? 5
Can an employer legally release information about my drug test? 5
Legal requirements for an employer’s drug and alcohol testing 6
Awareness program 6
Rehabilitation 7
Training 8
Iowa workers’ compensation law and drug and alcohol use 8
Recent Iowa Supreme Court cases 8
Recent arbitration decisions 9
Questions to ask in disciplinary grievance investigations 10
Part 2 – Bargaining Alcohol and Drug Testing Issues 11
Context for bargaining alcohol and drug testing policies 11
When management unilaterally implements an alcohol and drug testing policy 11
Legal action 11
Grievance and arbitration 12
Concerted action 13
When management proposes to establish a new or expand an existing alcohol and drug testing policy 14
The only jobs where drug testing is required under federal law 14
Arguments against alcohol and drug testing in the workplace 14
Preparing to bargain over alcohol and drug testing policies 16
Pre-table negotiations preparation checklist 16
Send an information request letter to management 17
Sample letter 18
Bargaining issues 18
Policy preamble, opening paragraph or statement 19
Compliance with the law 19
Grievance and arbitration 19
Union rights 20
Under what circumstances testing may be administered 20
Testing method 20
Rights of workers who test positive 21
Other issues to consider 21
Appendix A – questions to ask management and information request ideas 23
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Part 1
Iowa’s Alcohol and Drug Testing Law
Overview
Drug testing in Iowa is contained in Chapter 730.5 of the Code of Iowa.
The law in Iowa allows employers to require workers to provide urine, saliva or breath samples for drug and alcohol testing. Usually, the testing occurs at the application stage. However, random testing of current employees is permitted. Also, an employee who is involved in an accident at work that results in damage to property in excess of $1,000, and gives reasonable suspicion to the employer of intoxication or drug use can be drug tested.
Workers in the public sector are generally excluded from drug testing except when performing safety-sensitive jobs. Private or public sector workers who need a commercial driver’s license to perform their duties are often tested by their employer under federal Department of Transportation guidelines.
Marijuana, cocaine and methamphetamine and alcohol are usually targeted, but the employer may test for alcohol and other substances.
In Iowa, testing is usually performed through urine or saliva testing. Breath testing for alcohol is also allowed. Blood testing may be done only in rare instances and hair testing is prohibited. Drug testing laboratories are regulated by both federal and state regulations.
Employers must provide information to applicants and employees about their drug testing policies and the availability of drug treatment sources. The law however, does not require employers who use drug testing to offer drug rehabilitation to the employees or applicants who test positive. Applicants and employees both have the right to know the results of a positive drug test. An applicant may be refused employment and an employee may be fired after a positive drug test. If a worker’s alcohol test is positive exceeding the concentration level established in the employer’s policy, and a number of criteria are met, including attending rehabilitation, then the worker may not be disciplined the first time they have a positive alcohol test.
The employer’s failure to comply with Iowa’s detailed drug testing requirements opens them to be sued for a wrongful discharge.
Drug and alcohol testing procedures are negotiable and can be governed under the collective bargaining agreement.
IOWA’S DRUG TESTING LAW
Iowa Code Title XVI, Subtitle 1, Chapter 730
Who may be tested?
Iowa's drug testing law does not require an employer to conduct drug or alcohol testing. In addition, an employer may implement and require drug or alcohol testing at some but not all of the work sites of the employer.
A. Iowa law allows employers to conduct unannounced drug or alcohol testing of workers randomly selected from any of the following pools of employees:
1. the entire employee population at a particular work site of the employer, except for employees who are not scheduled to be at work at the time the testing is conducted;
2. the entire full-time active employee population at a particular work site;
3. all employees at a particular work site who are in a pool of employees in a safety-sensitive position and who are scheduled to be at work at the time testing is conducted. An employee who is designated by the employer as being in a safety-sensitive position may be placed in only one pool of safety-sensitive employees subject to drug or alcohol testing.
B. Employers may conduct drug or alcohol testing of employees during, and after completion of, drug or alcohol rehabilitation.
C. Employers may conduct reasonable suspicion drug or alcohol testing. Reasonable suspicion means that the decision to administer the drug or alcohol test must be based on rational inferences made from specific and explainable facts. For example: slurred speech, erratic behavior, and alcohol smell on someone’s breath.
D. Employers may conduct drug or alcohol testing of prospective employees.
E. Employers may conduct drug or alcohol testing as required by federal law or regulation by law enforcement.
Employers may conduct drug or alcohol testing in investigating accidents in the workplace in which the accident resulted in an injury to a person for which injury, if suffered by an employee, a record or report could be required under Iowa's occupational safety and health law, or resulted in damage to property, including to equipment, in an amount reasonably estimated at the time of the accident to exceed $1,000. Iowa Code§ 730.5 (8)
Any employer who improperly targets or exempts employees subject to unannounced drug or alcohol testing is subject to a civil penalty of $1,000 for each violation
What records must the employer keep?
An employee, or a prospective employee, who is the subject of a drug or alcohol test conducted under Iowa's drug testing law pursuant to an employer's written policy and for whom a confirmed positive test result is reported must, upon written request, have access to any records relating to the employee's drug or alcohol test, including records of the lab where the testing was conducted and any records relating to the results of any relevant certification or review by a medical review officer. However, a prospective employee is entitled to records only if he or she requests them within 15 calendar days from the date the employer provided the prospective employee written notice of the results of a drug or alcohol test.
When can actual testing occur?
Drug or alcohol testing of employees conducted by an employer must normally occur during, or immediately before or after, a regular work period. The time required for testing will be deemed work time for the purposes of compensation and benefits for employees.
Who pays for drug testing costs?
An employer must pay all actual costs for drug or alcohol testing of employees and prospective employees required by the employer. An employer must provide transportation or pay reasonable transportation costs to employees if drug or alcohol sample collection is conducted at a location other than the employee's normal work site.
What are the legal requirements for sample collection?
The collection of samples must be performed under sanitary conditions, with regard to the privacy of the individual providing the specimen, and in a way to preclude contamination or substitution of the specimen. Typically urine is the specimen collected for drug testing and breath is used for alcohol tests. Iowa Code §730.5 was amended in 2004 to also allow the use of oral fluids (saliva) for drug testing. Hair is not a permitted testing specimen under Iowa law. The only time an employer may take disciplinary action based on the results of a blood test for drugs or alcohol is when an employee is involved in an accident at work, and a care provider administers the blood test without direction from the employer.
In order for confirmatory tests to be performed, drug testing samples must be collected so that specimens are split into two components at collection time. The testing laboratory must store the second sample for at least 45 days, for the purpose of a second confirmatory test, if one is required. Alcohol testing samples (breath) must be collected according to U.S. D.O.T. rules that allow for on-site confirmatory testing.
Samples must be collected, labeled, stored and transported in ways that protect against contamination, adulteration and/or misidentification.
Employees or prospective employees must be given an opportunity to provide any information that may be relevant to the test. Information such as prescription or over the counter medication which the employee might be using or have used recently and might have an impact on the test. The employer must provide the worker with a list of which drugs they are being tested.
A medical review officer must, prior to the results being reported to an employer, review and interpret any confirmed positive test results to ensure that the chain of custody is complete and sufficient on its face and that any information provided by the tested individual is considered.
What are the legal requirements for confirmatory drug testing?
All confirmatory testing must be conducted at a laboratory certified by the U.S. Department of Health and Human Services or approved under rules adopted by the Iowa Department of Health. () .
If the medical review officer reports a worker’s drug test as positive for drugs or alcohol to the employer, the employer must notify the worker in writing via certified mail the following information:
1. The test results,
2. the employee’s right to request and obtain a confirmatory test, and
3. the fee that the worker must pay for the cost of the confirmatory test.
If the confirmatory test is negative, the employer must reimburse the worker for the cost of the confirmatory test, and the employer cannot use the original positive test for disciplinary purposes.
What happens when the test is positive?
Upon receipt of a confirmed positive test result for drugs or alcohol that indicates a violation of the employer's written policy, or upon the refusal of an employee or prospective employee to provide a testing sample, an employer may use that test result or test refusal as a valid basis for disciplinary or rehabilitative actions pursuant to the requirements of the employer's written policy and the requirements of Iowa's drug testing law, which may include, among other actions, the following:
1. A requirement that the employee enroll in an employer-provided or approved rehabilitation, treatment or counseling program, which may include additional drug or alcohol testing, participation in and successful completion of which may be a condition of continued employment, and the costs of which may or may not be covered by the employer's health plan or policies;
2. suspension of the employee, with or without pay, for a designated period of time;
3. termination of employment;
4. refusal to hire a prospective employee;
5. other adverse employment action in conformance with the employer's written policy and procedures, including any relevant collective bargaining agreement provisions.
Following a drug or alcohol test, but prior to receipt of the final results of the drug or alcohol test, an employer may suspend a current employee, with or without pay, pending the outcome of the test. The employer, with back pay, must reinstate an employee who has been suspended if the result of the test is not a confirmed positive test result.
Can an employer be sued for taking disciplinary action against a worker for a positive drug test?
An employer who violates Iowa's drug testing law or who aids in the violation of the law, is liable to an aggrieved employee or prospective employee for affirmative relief, including reinstatement or hiring, with or without back pay, or any other equitable relief as the court deems appropriate, including attorney fees and court costs.
When an employer commits, is committing or proposes to commit, an act in violation of Iowa's drug testing law, an injunction may be granted through an action in district court to prohibit the employer from continuing such acts. An aggrieved employee or prospective employee, the county attorney or the attorney general may bring the action for injunctive relief.
Normally an employer who has established a policy and initiated a testing program in accordance with Iowa's drug testing law may not be sued for wrongful discharge successfully, unless the following conditions apply:
1. The employer's action was based on a false positive test result, and
2. the employer knew or clearly should have known that the test result was in error and ignored the correct test result because of reckless, malicious or negligent disregard for the truth, or the willful intent to deceive or to be deceived.
An employer may be sued for defamation, libel, slander or damage to reputation when:
1. The employer discloses the test results to a person other than the employer, an authorized employee, agent or representative of the employer, the tested employee or the tested applicant for employment, an authorized substance abuse treatment program or employee assistance program or an authorized agent or representative of the tested employee or applicant, and
2. the test results disclosed incorrectly indicate the presence of alcohol or drugs, and
3. the employer negligently discloses the results.
In any cause of action based upon a false positive test result, all of the following conditions apply:
(1) the results of a drug or alcohol test conducted in compliance with Iowa's drug testing law are presumed to be valid.
(2) an employer will not be liable for monetary damages if the employer's reliance on the false positive test result was reasonable and in good faith.
Can an employer legally release information about my drug test?
All communications received by an employer relevant to employee or prospective employee drug or alcohol test results, or otherwise received through the employer's drug or alcohol testing program, are confidential communications and must not be used or received in evidence, obtained in discovery or disclosed in any public or private proceeding, except as otherwise provided or authorized by Iowa's drug testing law.
An employer may use and disclose information concerning the results of a drug or alcohol test under any of the following circumstances:
1. In an arbitration proceeding pursuant to a collective bargaining agreement, or an administrative agency proceeding or judicial proceeding under workers' compensation laws or unemployment compensation laws or under common or statutory laws where action taken by the employer based on the test is relevant or is challenged.
2. to any federal agency or other unit of the federal government as required under federal law, regulation or order, or in accordance with compliance requirements of a federal government contract.
3. to any Iowa agency authorized to license individuals if the employee tested is licensed by that agency and the rules of that agency require such disclosure.
4. to a union representing the employee if federal labor laws would require such disclosure.
5. to a substance abuse evaluation or treatment facility or professional for the purpose of evaluation or treatment of the employee.
However, positive test results from an employer drug or alcohol testing program may not be used as evidence in any criminal action against the employee or prospective employee tested.
Legal requirements for an employer’s drug & alcohol testing
Employers must carry out drug or alcohol testing or retesting within the terms of a written policy that has been provided to every employee subject to testing, and is available for review by employees and prospective employees
The employer's written policy must provide uniform requirements for what disciplinary or rehabilitative actions an employer will take against an employee or prospective employee upon receipt of a confirmed positive test result for drugs or alcohol or upon the refusal of the employee or prospective employee to provide a testing sample. The policy must provide that any action taken against an employee or prospective employee will be based only on the results of the drug or alcohol test. The written policy must also provide that if rehabilitation is required as provided below, the employer may not take adverse employment action against the employee so long as the employee complies with the requirements of rehabilitation and successfully completes rehabilitation.
If the written policy provides for alcohol testing, the employer must establish in the written policy a standard for alcohol concentration that will be deemed to violate the policy. The standard for alcohol concentration must not be less than .04, expressed in terms of grams of alcohol per 210 liters of breath, or its equivalent.
AWARENESS PROGRAM
Employers must establish an awareness program to inform employees of the dangers of drug and alcohol use in the workplace and comply with the following requirements in order to conduct drug or alcohol testing:
If an employer has an employee assistance program, the employer must inform the employee of the benefits and services of the program. An employer must post notice of the EAP in conspicuous places and explore alternative routine and reinforcing means of publicizing such services. In addition, the employer must provide the employee with notice of the policies and procedures regarding access to and utilization of the program.
If an employer does not have an employee assistance program, the employer must maintain a resource file of alcohol and other drug abuse programs certified by the Iowa Department of Public Health, mental health providers and other persons, entities or organizations available to assist employees with personal or behavioral problems. The employer must provide all employees information about the existence of the resource file and a summary of the information contained within the resource file. The summary should contain, but need not be limited to, all information necessary to access the services listed in the resource file.
REHABILITATION
Upon receipt of a confirmed positive alcohol test that indicates an alcohol concentration greater than the concentration level established by the employer’s policy, and if the employer has at least 50 employees, and if the employee has been employed by the employer for at least 12 of the preceding 18 months, and if rehabilitation is agreed upon by the employee, and if the employee has not previously violated the employer's substance abuse prevention policy, the written policy must provide for the rehabilitation of the employee, and the apportionment of the costs of rehabilitation as provided below.
If the employer has an employee benefit plan, the costs of rehabilitation must be apportioned as provided under the employee benefit plan.
If no employee benefit plan exists and the employee has coverage for any portion of the costs of rehabilitation under any health care plan of the employee, the costs of rehabilitation must be apportioned as provided by the health care plan with any costs not covered by the plan apportioned equally between the employee and the employer. However, the employer may not be required to pay more than $2,000 toward the costs not covered by the employee's health care plan.
If no employee benefit plan exists and the employee does not have coverage for any portion of the costs of rehabilitation under any health care plan of the employee, the costs of rehabilitation must be apportioned equally between the employee and the employer. However, the employer may not be required to pay more than $2,000 towards the cost of rehabilitation.
Rehabilitation required as described above does not preclude an employer from taking any adverse employment action against the employee during the rehabilitation based on the employee's failure to comply with any requirements of the rehabilitation, including any action by the employee to invalidate a test sample provided by the employee pursuant to the rehabilitation. However, if the worker completes the rehabilitation program effectively and continues to comply with the employer’s substance abuse policy, the employer may not impose discipline for the original positive alcohol test.
TRAINING
In order to conduct drug or alcohol testing, an employer must require supervisory personnel of the employer involved with drug or alcohol testing to attend a minimum of two hours of initial training and to attend on an annual basis thereafter, a minimum of one hour of subsequent training. The training must include, but is not limited to, information concerning the recognition of evidence of employee alcohol and other drug abuse, the documentation and corroboration of employee alcohol and other drug abuse, and the referral of employees who abuse alcohol or other drugs to the employee assistance program or to the resource file maintained by the employer.
IOWA WORKERS’ COMPENSATION LAW, IOWA CODE § 85.16
DRUG AND ALCOHOL USE
No compensation will be allowed for an injury caused by an employee’s intoxication that did not arise out of and in the course of employment but that was due to the effects of alcohol or another narcotic, depressant, stimulant, hallucinogenic or hypnotic drug not prescribed by an authorized medical practitioner, if the intoxication was a substantial factor in causing the injury.
RECENT IOWA SUPREME COURT CASES
Tow v Truck Country of Iowa, Inc, April, 15 2005
An employer unlawfully refused employment to an applicant who, after taking one drug test which rendered inconclusive results, refused to take a second drug test at his own expense, the Supreme Court of Iowa held. Under Iowa law, "all actual costs for drug or alcohol testing" are to be borne by the employer if it intends to make hiring conditional on adherence to its drug-testing policy. The reviewing court rejected the employer's assertion that the applicant should be precluded from recovery because he failed simply to advance the cost of retesting in order to mitigate the damages he sustained. It also accepted the lower court's factual finding that it was not unreasonable for the applicant not to have advanced the cost of retesting. 695 N.W. 2d 36 (Iowa 2005)
Jeri Rae McVey v. National Organization Survey, August 11, 2006
An employee who was terminated after failing a random drug test could proceed with her wrongful termination discharge lawsuit based on her claim that she never received a copy of her employer’s written drug testing policy. The Supreme Court of Iowa held that “discharge from employment may be based on an employee drug testing program only if the program us being carried out in compliance with the governing statutory law.” The Court agreed with the Appellant’s argument that the employer did not comply with the requirement of delivering their drug testing policy to each employee and that is a necessary step for invoking statutory authorization for such testing. The Court also stated that “it is essential that the employee drug testing policy, as formulated by the employer, contain uniform requirements for what disciplinary or rehabilitation actions an employer shall take against an employee or prospective employee upon receipt of a confirmed positive drug test.” Iowa Sup LEXIS 101 (Iowa 2006)
RECENT ARBITRATION DECISIONS
Namasco Corporation and International Brotherhood of Teamsters, Local 421, Dubuque, Iowa, September 12, 2006
Positive Drug Test Termination: An employer did not have just cause to discharge a warehouse employee when a drug test performed six days after an accident came back positive for cocaine. It simply did not meet its burden of proving by clear and convincing evidence that the employee was under the influence of cocaine while working. The test was administered six days after a workplace accident when the employee was sent for medical treatment of his injured hand – no reasonable suspicion existed. No one testified at the hearing that he exhibited any unusual behavior in the workplace. Clearly a positive test itself does not prove that the worker was under the influence of the drug while at work. The arbitrator cast doubt on the policy of testing solely because of an accident without any prior evidence of a reasonable suspicion. The grievance was sustained and the arbitrator ordered the employer to reinstate the warehouseman immediately with full seniority and other contract benefits.
Drug Tests & Past Practice: The employer’s drug testing program was implemented unilaterally, after being in place for at least 15 years it became a condition of employment created by past practice. Over many years both drivers and warehousemen were drug tested when involved in an accident resulting in injuries or damages. It had been discussed at meetings the union knew or should have known that the practice existed. By not raising objection to such a policy over a period of so many years, the union acquiesced to a drug testing policy for warehouse employees.
Excel Corporation and United Food and Commercial Workers Union, Local 230, Ottumwa, Iowa, October 25, 1996
Arbitrability --Timeliness --Knowledge of Policy: A grievance over a .02 blood alcohol level standard in a company's drug policy that was filed by a union within days of an employee testing above that level was timely filed. Although the drug policy had been in place for years, the union did not know of the .02 level until the employee tested positive because the company kept the drug testing and subsequent treatment confidential. Because the union could not be attributed with knowledge of the policy's standard, the grievance was timely filed and was therefore arbitrable.
Alcohol --Rules, Plant --Blood Alcohol Level: A company's drug policy that allowed drug testing based on probable cause and had a .02 blood alcohol standard was proper since the company had applied it consistently. Moreover, the policy was consistent with state standards and federal regulations. When the grievant arrived at work, their mannerisms and the smell of alcohol caused the employer to believe they were under the influence of alcohol, which provided reasonable cause for requiring a drug test. A union's contention that the .02 standard was improper because it was below the state driving standard of .10 had no merit due to a lack of evidence that the standard was too low or was unreasonable. The grievances were denied.
Questions to ask in disciplinary grievance investigations
1. Was the grievant selected randomly, for reasonable suspicion or targeted improperly for the drug test?
2. Does the employer have a written drug testing policy in accordance with the law?
3. Has the written drug testing policy been distributed to all workers?
4. Was the sample collected and handled in accordance with Iowa’s drug testing law and the collective bargaining agreement?
5. Was the drug testing lab certified by the U.S. Department of Health or the Iowa Department of Public Health?
6. Was there a confirmatory test that meets all legal requirements?
7. Is there an alcohol concentration level established in the employer’s policy?
8. Was the worker taking any medication prescribed or over the counter, that may have caused a false positive? Was that information disclosed?
9. In case of an accident, were there damages to property in excess of $1000?
10. Did the employer have reasonable suspicion for ordering a drug test after and accident? What was it?
11. How soon after the accident was the drug test specimen collected?
Part 2
Bargaining Alcohol and Drug Testing Issues
Context for Bargaining Alcohol and Drug Testing Policies
Few unions will (on their own) introduce bargaining proposals to establish alcohol and drug testing procedures for their members. Instead unions are more likely to face the issue only when an employer attempts to implement a new policy unilaterally during the midterm of a contract or when the employer brings the issue to the bargaining table. Too often, unions accept an employer’s demand to implement alcohol and drug testing as an inevitable event or accept the employer’s language as is without bargaining over the details of the testing program.
Unions have the right to bargain over alcohol and drug testing policies and procedures. When unions adequately prepare to bargain over these issues and take an assertive posture at the table, they can often repudiate an employer’s assertions that substance abuse requires harsh disciplinary action, refocus the debate around rehabilitation rather than punishment, enhance workers’ dignity and protect their due process rights, and in many cases succeed in convincing an employer to drop its proposal altogether.
As with any tough bargaining fight unions need more than technical knowledge and skill, they must involve and mobilize their members around the issue of alcohol and drug testing. Employers often attempt to divide members, since an overwhelming majority of workers don’t abuse alcohol or use illicit drugs. Unions can turn this around by focusing member attention on union values such as: the right of privacy, fair treatment for all, dignity of work, just cause discipline and innocence until proven guilty.[1] In fact, the very idea of alcohol and drug testing runs counter to most union values, and the issue can be used to build worker unity and a stronger union.
When management unilaterally implements an alcohol and drug testing policy:
When this occurs the union may have a number of tactical options to consider and pursue. These options may include:
1. Legal
a. File an unfair labor practice charge (ULP) – Section 8(a)(3) of the National Labor Relations Act (NLRA) requires that employers (and unions) bargain in good faith over wages, hours and conditions of employment (mandatory subjects of bargaining). This obligation to bargain requires that employers to first give unions notice and opportunity to bargain before implementing any change in a condition of work or other mandatory subject of bargaining.
Alcohol and drug testing for active workers has been recognized as a mandatory subject of bargaining,[2] though pre-employment drug screening of applicants has been determined to be a permissive subject of bargaining.[3]
When a union learns of an employer’s intent to implement an alcohol and drug testing program unilaterally, it should first notify the employer (in writing) of its desire to bargain over the matter and demand that employer not implement the program until good faith bargaining is completed. If the employer refuses to bargain or implements the program before bargaining has reached impasse, the union is free to file an unfair labor practice charge with the National Labor Relations Board (NLRB).[4]
Waivers by contract or past practice: It is sometimes the case that unions have waived their right to bargain over mid-term changes to certain employer policies. For example, a management’s rights clause may give the employer authority to implement work rules and other employment policies not otherwise addressed in the contract. But the extent of a union’s waiver and its application to alcohol and drug testing is often a matter of interpretation. In some cases, employers will rely on such language to overreach, even though the intent of the waiver was to allow management only limited authority to make minor adjustments to existing work rules and practices, rather than broad authority to implement entirely new and widespread policies – such as implementation of an alcohol and drug testing policy.[5] In circumstances where the union and employer disagree over the extent of management’s authority granted under the management’s rights or other waiver clause, the union’s recourse is to file a grievance and ultimately pursue arbitration if no settlement can be reached.[6]
Waiver by Union inaction: When an employer gives advance notice of an intention to change a term or condition of employment (such as implementing an alcohol and drug testing program), the union must make a reasonably timely request for bargaining over the matter to avoid a “waiver” of the right to bargain. This does not preclude the union from brining the issue to the bargaining table at the expiration of the contract, but will prevent the union from successfully raising a “refusal to bargain” claim with the NLRB.
b. State Court Actions – Iowa’s alcohol and drug-testing statute (Iowa Code Section 730.5) contains a number of restrictions on the manner and scope in which employers may implement an alcohol and drug testing policy. The law also provides civil remedies for employees or prospective employees when employers violate the Iowa alcohol and drug testing statute. Unions may be able to seek injunctive relief to stop or delay implementation of an employer’s alcohol and drug testing policy that violates a provision of the Iowa law. Unions should consult with qualified legal counsel regarding actions taken under the Iowa law.
2. Grievance and arbitration
Depending on the contract and its bargaining history, unions may be able to grieve the Employer’s unilateral implementation of an alcohol and drug-testing program. Unions might argue that the contract obligates the employer to negotiate over the issue, or that the implemented rule is unreasonable, discriminatory or in violation of the contract’s just cause provision.
3. Concerted action
Mobilizing members around management’s attempt to unilaterally implement an alcohol and drug testing policy can pressure management to reconsider its decision and/or serve to build greater union solidarity centered on union values and beliefs. Often concerted actions may be part of a broader campaign that could also include legal action, grievances and bargaining strategies.
Typically member education is an essential component of any union strategy. Below is an example of a union flier designed to educate and mobilize members around the alcohol and drug testing issue.
Sample Membership Flier or Letter[7]
Our Local faces the challenge of responding to management’s demands for an alcohol and drug-testing program. To steer a clear course through these negotiations, we want the membership to have as much information as possible about the situation we will face in bargaining. This letter is the first of several we anticipate you will receive. Also, watch for articles in our newsletter.
Highlights of our Iowa’s Drug Testing Law:
· Employer is not required to alcohol or drug test (unless required to by federal law).
· Workers can be fired after first positive test. No duty to provide rehabilitation for positive drug test, except for some alcohol positives.
· Random drug testing allowed.
· Worker may be tested on the basis of reasonable suspicion, not probable cause.
· Post accident testing allowed with no end date.
· Medical review officer need not be a physician.
· Sample collection techniques do not meet federal standards; urine and saliva testing are allowed.
· Act of specimen collection may be done under direct observation.
Our statute gives certain protections to workers. These include:
1. Employer must pay for testing, lost time, and costs of travel to test site for employees. Employer must pay for testing of applicants.
2. A medical review officer shall interpret and evaluate confirmed positive test results.
3. Employee gets notified by certified mail of positive test results and has right to request second sample testing.
4. Employer must have a written drug testing policy in place before beginning drug testing and the policy must be provided to all employees subject to testing and available for review by employees and applicants.
5. Drug labs shall issue annually reports to the state Department of Public Health about how many workers underwent drug tests and the results of such tests.
Our Plan
Drug testing is a mandatory subject of bargaining, and before the employer can begin drug testing they are legally obligated to sit down with the union and bargain the drug testing policy. We need to educate ourselves to be ready for the bargaining table if the Company wants to discuss this topic. We are learning more about it every day and are certainly looking for volunteers to help in this effort. If we have to negotiate an alcohol and drug testing policy we want a policy that is in line with our union values and we want to be able to monitor the policy once it is implemented.
If you are interested in this topic and have some time, please call the local to volunteer. Below are some examples of the types of help that are presently needed.
1. Make a dozen phone calls or less to check on services of drug testing laboratories.
2. Distribute flyers to members.
3. Set up a lunch ‘n learn program on alcohol and drug testing
4. Do Internet searches.
Stay Tuned!!
When management proposes to establish a new or expand an existing alcohol and drug testing policy at the bargaining table:
The stance taken by a union when management brings an alcohol and drug testing policy to bargaining table will depend on a number of factors including: whether or not the employer is legally required to establish a policy, the union’s bargaining power and priorities, management and union resolve, and the degree of preparation and planning the union undertakes prior to bargaining.
Too often, union bargaining committee members see alcohol and drug testing as an “inevitable” management prerogative and fail to aggressively challenge management assertions regarding its need to conduct alcohol and drug testing. There are many valid arguments against alcohol and drug testing in the workplace. Some of the major arguments against alcohol and drug testing are outlined below. Other arguments against workplace alcohol and drug testing may stem from the particular history with an employer and its practices.
1. Arguments against alcohol and drug testing (especially random testing) in the workplace:
a. Indiscriminate testing is unfair, overly intrusive and unnecessary.
It is unfair to force workers who are not even suspected of using illegal drugs or alcohol while on the job, and whose job performance is satisfactory, to “prove” their innocence through a degrading and uncertain procedure that violates personal privacy.[8] No worker should have to produce evidence of innocence as a condition of their continued employment.
While many employers see alcohol and drug testing as just another way to exert control over the lives of workers, employers do not have a legitimate business interest in the off-duty conduct of workers. Indiscriminate testing cannot measure or detect a worker’s actual impairment on the job – that is their ability to safely perform their work duties. As such, alcohol and drug-tests do not provide management with a tool for measuring job performance. Urine tests for example, only measure the presence “metabolites” in the body. Metabolites are the left over traces of previously ingested substances. A worker who smokes marijuana on January 1st might test positive for marijuana on January 15th – long after the affects of the drug have dissipated. On the other hand, a worker who smokes crack cocaine in the morning may test negative that same day because the drug has not had time to metabolize in his or her system. The first worker is fired, even though he or she is completely fit for work duty. The second worker keeps his or her job, though in all likelihood, not fit for duty.
Employers have the right to discipline for just cause, and being drunk or high on the job establishes just cause. If managers are properly trained in proper techniques of identifying impaired workers, they can more directly and effectively ensure that no worker is drunk or high while on the job.
b. Alcohol and drug tests are not reliable.
There is substantial debate within the scientific community over the accuracy and reliability of the various forms of alcohol and drug testing. Initial drug screening techniques are generally seen as less reliable than the more expensive follow-up tests. Laboratories vary in their ability to accurately administer drug tests. A survey conducted several years ago by the National Institute of Drug Abuse, a government agency, found that 20 percent of the labs surveyed mistakenly reported the presence of illegal drugs in drug-free urine samples.
False positive test results also occur when drug screens confuse similar chemical compounds. For example, codeine and Vicks Formula 44-M have been known to produce positive test results for heroin, Advil for marijuana, and Nyquil for amphetamines. These problems can be mitigated with proper medical review practices, but this depends heavily on the individual worker’s memory and/or ability to communicate with the MRO.
While it may be true that testing technology has improved, other complications undermining the reliability of test results can occur. For example, passive consumption can occur when a person is in a room where marijuana has been smoked resulting in a positive drug test.
c. There is little evidence that substance abuse is a serious problem affecting the workplace.
Despite some employer claims that substance abuse is rampant and widespread among American workers, there is little evidence to support this assertion. Also such sweeping statements about the apparent substance abuse of American workers, fails to show that the problem exists among workers at a specific worksite or employer. Evidence-based studies of substance abuse at a particular business establishment are virtually non-existent. If an employer believes that substance abuse is a problem with a specific workforce, where is the evidence to support that belief? It’s more likely that the employer is not basing its belief on facts, but rather on an opinion generated by popular hype. Even if drug or alcohol abuse truly exists among the workforce, a focused program of evaluation and treatment would be more effective in curing the problem.
d. Employer assertions that alcohol and drug testing are necessary to protect the health and safety of workers are often blatantly hypocritical.
If safety is raised as a rationale for implementing alcohol and drug testing, unions should carefully focus discussion on the employer’s overall practices. Employers who routinely demand mandatory overtime, reduce staffing levels, force workers to handle toxic chemicals, or refuse to allow union safety committee members paid time to conduct safety audits, should not be allowed to talk of safety concerns as justification for establishing an alcohol and drug-testing program.
Preparing to bargain over alcohol and drug testing policies:
Preparing to bargain over alcohol and drug-testing is not all that unlike preparing to bargain for any other language issue. One difference might be that it’s critical to understand the applicable alcohol and drug testing laws – especially in terms of what the employer can and can’t do under the law. Iowa’s alcohol and drug testing law does not require that any employer implement alcohol and drug testing, but it does limit what an Iowa employer can and can’t do. The NLRA gives unions that right to bargain over these policies. Unions are free to oppose any form of testing outright or can negotiate greater protections for their members than those provided in the law.
1. Workplace Drug Testing: Pre-Table Negotiations Preparation Checklist for Union Negotiators[9]
✓ Obtain and review the most recent version of the Iowa alcohol and drug testing law, Iowa Code Section 730.5.
✓ Determine if any federal statutes regarding drug testing cover the employer. Is the employer a federal contractor or subcontractor? Are some of the employer’s jobs federally regulated, for example, Department of Transportation regulations for CDL drivers? If yes, obtain copies of the relevant federal regulations. (See below).
• Federal Motor Carrier Safety Administration (49 CFR 382)
• Dept. of Transportation, Procedures for Transportation Workplace Testing Programs (49 CFR 40)
• Dept. of Health and Human Services (DHHS) Mandatory Guidelines for Federal Drug Testing Programs (59 FR 29908)
• Federal Aviation Administration (14 CFR 61, 63, 65, 121, 135)
• Federal Railroad Administration (49 CFR 219)
• United States Coast Guard (46 CFR 4, 5, 16, 95)
• Pipeline and Hazardous Materials Safety Administration (49 CFR 199)
• Federal Transit Administration (49 CFR 655)
• Nuclear Regulatory Commission (10 CFR 26)
• Department of Energy (10 CFR 707)
• Department of Defense (48 CFR 223, 252)
• National Aeronautics and Space Administration (48 CFR 1823)
• Drug Free Federal Workplace Executive Order (5 USC 7301)
✓ Obtain the latest list of drug testing labs certified by the federal government, SAMHSA (Substance Abuse and Mental Health Services Administration, formerly NIDA), by consulting the Federal Register the first week of every month. The list is also available on the Internet at: .
✓ Contact your international union and get policy statements and/or model contract language about drug testing and employee assistance programs.
✓ Review the Drug Free Workplace Act of 1988 as amended since many employers mistakenly assume this federal law requires drug testing. See: .
✓ Find out whether the employer now testing applicants. If so, how many per year? What were the results? While applicant testing is not generally a mandatory subject of bargaining, if it has a disparate impact on a class covered by a bargaining agreement’s anti-discrimination clause (e.g., race, sex) the employer must provide information about the program to enable the union to enforce the nondiscrimination contract clause.
✓ Find out if the employer plans to outsource the administration of the alcohol and drug-testing program. If so, what’s the name of the company, where are they located and what other client employers do they serve?
✓ Find out if the employer has implemented an alcohol and drug-testing program at other facilities or with other bargaining units or groups of workers. If so, obtain a copy of the program descriptions.
✓ What are other companies doing in the geographic area and in related industries? Will the employer argue that it must drug test because most other employers do and it does not want drug-abusing applicants who are looking for an employer with no drug test? Check newspaper help wanted ads and local employment agencies.
✓ Does existing medical insurance coverage include inpatient and outpatient substance abuse counseling and drug treatment? Check out other potential impacts on other benefit package components, for example, sick leave, unpaid leaves of absence.
✓ What is the average cost of rehabilitation in your geographic area? Check with local substance abuse treatment centers. For a partial list of substance abuse treatment centers, check the U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration “Facility Locator” at .
✓ Is there an Employee Assistance Program (EAP) in place? How many referrals for drug abuse were received in the last year? Do members trust the quality of services and the confidentiality of the EAP program?
1. Send an information request letter to management.
Because alcohol and drug testing policies are negotiable as a mandatory topic of bargaining, unions are also entitled to any relevant information they need from the employer.[10] The following is a sample information request letter. Appendix A includes a long series of questions and information request to include (in total or in part) with the information request letter. Many of the questions listed in Appendix A can also be used at the bargaining table as discussion questions directed at management.
Sample letter requesting information
Date
(Name of employer officer or industrial relations rep.)
(Employer)
(address)
Dear_____________:
We ask that management promptly provide the information listed on the attached page (see Appendix A). We believe this information request is valid under current NLRB standards. Should you have concerns regarding this request, we stand ready to negotiate over those concerns to work out a mutually agreeable resolution. We request that you provide the requested information within ten days. If the information is not available or you are unable to provide the information within the timetable setout herein, please provide us with a written explanation immediately with details.
Thank you for your cooperation.
Sincerely,
(Name of union officer making request)
See Appendix A for a list of questions to ask management with specific information requests.
Bargaining issues:
There are many issues to discuss and negotiate with regards to alcohol and drug testing. Most fundamentally is whether to allow employer testing at all, and if so, whether random testing will be conducted. Beyond these basic questions, unions face a myriad of “detail” issues that can dramatically affect the overall character of an alcohol and drug-testing program.
Will the program focus on rehabilitation or punishment? Will the program adequately protect against false positive test results or will it always assume that test results are correct without regard to circumstances? Will union rights be respected or will the employer use the policy to hammer union activists? Will the policy limit the employer’s reach into the private lives of union members or will the policy open the door to employer intrusion into the off-duty lives of union members? These are just a few of the questions to consider when bargaining alcohol and drug testing policies. Union bargaining committees should allow themselves time to consider these and other questions before bargaining this issue.
Below are specific issues to consider. Language is offered not as a model, but as a sample of one approach to the issue or concern. Union bargaining committees should check with their national or international union legal or bargaining research departments. Many national or international unions provide locals with substantial guidance on negotiating alcohol and drug testing policies. The following list of issues may not address all issues since there are many issues unique to a particular local union and the employer with which it negotiates. Hopefully, the list will give union negotiators a sense of some of the pitfalls to avoid and alternative approaches to consider.
1. Policy preamble, opening paragraph or statement:
What to avoid - broad statements claiming that substance abuse among workers is rampant and widespread requiring strong employment policies to combat the problem.
First, there’s little evidence that this is true, and even if it was true, it’s unlikely that there is evidence to support such a claim regarding workers at a specific worksite or bargaining unit. Second, these statements will work against a union in arbitration when attempting to limit application of the policy or when asking the arbitrator to lessen a disciplinary action where mitigating circumstances may apply.
What to consider – statements clarifying that the purpose of the program is to reduce on-the-job impairment due to substance abuse, rather than substance abuse on its own. Also consider language requiring that rehabilitation is the first course of action taken when a test is positive, rather than disciplinary action.
Sample language:
Preamble: Employer and Union agree to implement the following alcohol and drug-testing program. The parties agree that the primary purpose of this policy is to reduce on-the-job impairment stemming from substance abuse. The parties also agree that when a worker is found to be impaired due to substance abuse, Employer’s primary course of action will be to offer rehabilitation services to the worker when called for by a proper substance abuse evaluation and to ensure that no further impairment exists when the worker is returned to duty. Employer will only take disciplinary action against such a worker when reasonable attempts to rehabilitate have failed.
2. Compliance with the law:
What to avoid – statements allowing the employer to take any action it deems appropriate without regard to technical compliance with the law.
What to consider – language making it the employer’s responsibility to comply with the applicable law and placing the burden of proving compliance on the employer.
Sample language:
The Employer shall ensure compliance with all worker protections, both substantive and procedural, afforded by state or federal law. No bargaining unit worker shall suffer any detrimental Employer action if these protections as well as those provided in this agreement are not afforded to any bargaining unit worker, and the burden shall be on the Employer to establish that these protections have been afforded to any affected bargaining unit worker.
3. Grievance and arbitration:
What to avoid – language that precludes the union from grieving any aspect of the alcohol and drug testing policy.
What to consider – language that gives the union broad authority to grieve violations of the policy, applicable law, test results, and disciplinary actions.
Sample language:
Any matters related to this alcohol and drug-testing policy shall be subject to the grievance and arbitration procedures of this collective bargaining agreement.
4. Union rights:
What to consider – language that protects and expands union rights such as: right to information, right to have a union steward present during testing, and right to negotiate over any future changes to the policy.
Sample language:
The Employer shall provide the union, upon request, any and all documentation, records, and information arising from or related to the alcohol and drug-testing program.
The Employer shall ensure that a union steward is present during any alcohol or drug test, meeting with the MRO or follow up test administered to any bargaining unit worker.
Should a change in the law require any change to this program, the parties shall first agree upon any such changes before the Employer may implement the changes.
5. Under what circumstances testing may be administered:
What to avoid – language that gives the employer blanket authority to determine when, where, and how testing is administered. Avoid random testing and accident-trigger testing whenever possible. If accident-trigger language is unavoidable, make sure that it be coupled with other “probable cause” (i.e., serious accident plus probable cause to believe the worker causing the accident was impaired).
What to consider – language limiting management’s right to administer testing to specific circumstances such as when required by federal law or when probable cause exists to believe a worker is both impaired and under the influence. Remember, probable cause is a higher standard than reasonable suspicion.
Sample language:
The Employer shall not utilize any form of random testing unless specifically required by federal law. When random testing is required, the Employer shall only administer random testing to those workers specifically subject to random testing as required by federal law (narrowly defined). No other bargaining unit workers shall be subjected to random testing of any form and under any circumstances.
The Employer may also conduct alcohol and drug testing when it has probable cause to believe a worker is impaired and under the influence of either alcohol or illicit drugs while on the job. Managers must receive annual training on the proper techniques of identifying worker behavior that establishes that such probable cause exists. The Union may review the training provided to managers and suggest changes.
The Employer may not conduct alcohol and drug testing under any other circumstances.
6. Testing method:
What to avoid – testing methods that show usage that occurs off the job or weeks earlier. For example, urine testing can show positive usage of marijuana weeks prior to the test. Hair sample testing (illegal in Iowa) can, in some cases, show usage months prior to testing.
What to consider - breathalyzer for alcohol and saliva testing for drugs are more likely to show recent usage.
Sample language:
The Employer shall utilize breathalyzer testing for detecting alcohol impairment and saliva testing for detecting drug impairment.
Sample collection techniques shall meet any and all federal standards related to chain of custody procedures, laboratory certification and testing methodology and procedures.
Note: The Iowa law sets out minimum or threshold test levels for different drugs and alcohol. For example the standard for alcohol concentration must not be less than .04, expressed in terms of grams of alcohol per 210 liters of breath, or its equivalent. This is the minimum threshold allowed, and the law does not preclude unions from negotiating higher threshold levels for alcohol or other drugs.
7. Rights of workers who test positive:
What to avoid – any language that emphasizes punishment or rehabilitation or restricts worker rights to grieve unjust disciplinary action.
What to consider – language protecting workers jobs, providing substance abuse evaluation and treatment options when necessary.
Sample language:
The Employer recognizes that substance abuse is an illness, with the proper response being education, treatment and rehabilitation.
Bargaining unit workers testing positive to drugs, shall have the right to have an independent test[11] conducted at the Employer’s expense by a certified testing laboratory of the worker’s choice. The Employer’s laboratory will observe proper chain of custody procedures when it transfers the worker’s specimen to the independent laboratory. The independent test shall be determinative if negative.
Bargaining unit workers testing positive for alcohol via a breathalyzer test, shall have the right to a blood test at a qualified medical facility selected by the worker to confirm the presence of unacceptable levels of alcohol. The blood test shall be determinative if negative.
The Employer shall not discipline any bargaining unit worker testing positive for alcohol or drugs two or less times in any twenty-four month period, if the worker undergoes substance abuse evaluation and completes any reasonable treatment recommendations. Workers who fail more than two tests within twenty-four months (excluding follow up tests conducted during treatment) shall be subject to progressive discipline. The Employer shall expunge any record of any positive test for any worker who has not tested positive for a period of twenty-four months.
The Employer shall provide a qualified Employee Assistance Program (EAP) at no charge to bargaining unit workers. Alcohol and drug abuse counseling shall be offered through the EAP. Workers may use their accumulated sick leave for any EAP services or other alcohol and/or drug abuse rehabilitation services. Workers shall retain their seniority while on leave for alcohol or drug abuse rehabilitation.
8. Other issues to consider:
• Privacy issues
-no direct observation of workers in the act of providing a urine sample; and
-no release of worker test results other than to the union and medical review officer;
• Medical Review Officer (MRO) qualifications – medical doctor with training in alcohol and drug testing procedures.
• Unscheduled overtime or callouts – no requirement to work unscheduled overtime if the worker has consumed alcohol or other substances while off-duty.
• Transportation home – provide transportation home for workers believed to be impaired due to substance abuse.
Appendix A
Clara Oleson developed the following questions; see Negotiating and Teaching Workplace Drug Testing: A Labor Perspective, Labor Studies Journal, Vol. 28, No. 4, p. 70 (Winter 2004).
I. QUESTIONS ABOUT THE PURPOSE OF THE PROPOSED DRUG TESTING POLICY(5)
General questions to determine the scope of the policy envisioned by the company, their perception of the problem of substance abuse in the workplace and the reasonableness of the policy.
The use of the word drug in any question includes alcohol and legal and illegal drugs, unless otherwise noted.
1.Have you conducted or have you caused to be conducted a needs assessment of the workplace to determine what, if any, substance abuse policy is needed?
2. Does the company feel it is condoning drug abuse if it does not have a workplace drug testing policy?
3.Please indicate if any of the reasons listed below are your reasons for doing drug testing?
| |Yes |No |
|Reduce accidents at the workplace |___ |___ |
|Increase productivity at the workplace |___ |___ |
|Reduce the use of illicit drugs in the community at large |___ |___ |
|Reduce the use of the company health care plan |___ |___ |
|Reduce absenteeism |___ |___ |
|Deter illegal drug use |___ |___ |
|Symbolic evidence of corporate responsibility |___ |___ |
|Increase overall organizational effectiveness |___ |___ |
|Reduce damage to company property |___ |___ |
|Demonstrate the company's moral standards |___ |___ |
|Reduce Workers' Compensation costs |___ |___ |
|Stop sale of illegal drugs on company property |___ |___ |
|Stop possession of illegal drugs on company property |___ |___ |
|Stop distribution of illegal drugs on company property |___ |___ |
For each of the reasons you have checked yes, please provide documentation that drug testing will ease or cure the problem.
4.Does the company believe that a drug testing policy would cut down on lost time, sick days or tardiness? If yes, please provide the evidence upon which you rely for that belief, including but not limited to titles of books, articles, etc. and names and addresses of organizations, and/or consultants whose information created that belief.
4a.Do you know how many lost hours in the past twelve months, if any, were do to employee substance abuse?
If no, do you have any program in place or in the planning stage to make this determination?
If yes, how many of those lost hours came from employees in the bargaining unit?
If yes, how many different individual employees were involved in accumulating these lost hours?
If yes, what drugs were involved?
5. Does the company believe that a drug testing policy would cut down on accidents? If yes, please provide the evidence upon which you rely for that belief, including but not limited to titles of books, articles, etc. and names and addresses of organizations, consultants whose information created that belief?
5a.Do you know how many accidents, if any, in the past twelve months, were due to employee substance abuse?
If no, do you have any program in place or in the planning stage to make this determination?
If yes, how many of those accidents came from employees in the bargaining unit?
If yes, how many different individual employees were involved in those accidents, please indicate whether they were victims or perpetrators of the accidents and what drugs were involved.
6. Does the company believe that a drug testing policy would increase productivity?
If yes, please provide the evidence upon which you rely for that belief, including but not limited to titles of books, articles, etc. and names and addresses of organizations, consultants whose information created that belief.
If yes, please provide any documentation as to how you would measure the relationship between productivity and a drug testing policy?
7. What value, if any, does drug testing have to the company's image?
7a. Does the company belong to any organizations that engage in legislative lobbying on drug testing in the workplace?
7b. Have any corporate executives given talks, workshops or presentations about drug testing in the workplace?
7c. Has the company paid for any advertising in the last twelve months on the issue of drug use or drug testing?
7d. Has the company engaged in any community programming about drug use or drug testing in the last twelve months?
7e. Has the company attended any programs in the last 6 months about drug use or drug testing in the workplace?
8.What is the nature of the "drug problem" that your policy is attempting to address?
8a. What drugs are involved?
9. Please provide any evidence, excluding personally identifiable information, that drugs are being sold or transferred at the workplace or have been sold or transferred in the past twelve months.
10. Please provide any evidence, excluding personally identifiable information, that illegal drugs are being used at the workplace or have been used in the past twelve months.
11. Please provide any evidence, excluding personally identifiable information, that legal drugs are being used illegally at the workplace or have been used in the past twelve months.
12. Which of the following alternatives to workplace drug testing, if any, have you investigated?
| |Yes |No |
|Training supervisors to detect performance problems that may affect safety |___ |___ |
|Performance testing, e.g., mechanical aptitude tests |___ |___ |
|Employee Assistance Programs |___ |___ |
|Health Promotion Programs |___ |___ |
|Educational Programs aimed at preventing or reducing drug use |___ |___ |
|Programs to reduce employee turnover |___ |___ |
|Programs to reduce employee theft |___ |___ |
|Programs to reduce employee stress |___ |___ |
II. QUESTIONS ABOUT THE ECONOMICS OF THE DRUG TESTING PROPOSAL
1. Will any state economic development monies, for example from the Iowa Industrial New Jobs Training Program, be used for paying for any part of the drug testing policy?
If yes, please identify the program, the amount of funds and the mission of the program.
2. Has the company signed a contract with any entity, e.g. hospital, medical laboratory, to devise a substance abuse policy, conduct and/or evaluate drug tests?
If yes, please provide a copy of the contract or agreement.
3. Has the company investigated any proposals from any entity, e.g. hospital, medical laboratory, medical supply outlet about drug testing in the workplace?
4. Has the company investigated any proposals from any entity, public or private, about educating employees of the bargaining unit about the use of drugs, signs of substance abuse, availability of substance abuse evaluation and treatment programs and/or drug testing in the workplace?
If yes, please identify the entity and give a general description of the program and its costs.
5. Are the costs of the drug testing program going to paid from existing budget allocated to health and safety issues or is additional money going to be budgeted for the drug testing program?
6. What plans, if any, exist to evaluate the cost benefit of the drug testing policy in twelve months, i.e. do the monetary benefits outweigh the monetary costs?
III. QUESTIONS ABOUT THE RECORD KEEPING AND PRIVACY ASPECTS OF THE DRUG TESTING PROPOSAL.
1. Will information about the time, date and results of drug tests performed on bargaining unit employees be kept confidential?
If yes, how do you plan to maintain confidentiality of this information?
2. When, if ever, are the results of the drug tests destroyed?
If they are stored in a computer, please provide the protocol by which they will be erased from back up systems?
How are paper records destroyed, e.g., shredded, sent to land fill?
3. Does the company plan to share with any individuals outside the company, e.g., police, other employers, the results of drug tests performed on employees of the bargaining unit or former members of the bargaining unit?
4. Please identify all the means by which the results of the drug tests might be communicated to the company, e.g., telephone, e-mail, mail, fax and what the company plans are to keep these communications confidential?
4a. Will any results of drug tests on bargaining unit employees be stored in a computer?
If yes, what computer security mechanisms will be employed to protect the confidentiality of the results so stored?
5. What penalties, if any, might a bargaining unit employee suffer if he/she disclose the results of a drug test, including their own?
6. As part of the company's drug testing policy, may searches of a bargaining unit employee's person, locker or car be undertaken?
If yes, please identify the type of search and the entities who will conduct the search, e.g., company security, outside contractors, policy, and sheriff.
7. As part of the company's drug testing policy, may video surveillance of a bargaining unit employee's work area, home, automobile or public space use be undertaken? Please explain.
8. As part of the company's drug testing policy, may law enforcement or private security firms to work as undercover informers in the workplace?
9. As part of the company's drug testing policy, will any law enforcement personnel or equipment be used? e.g. a breathalyzer machine at the local jail, off-duty policy working as security personnel at the workplace.
10. Under what circumstances, if any, will the company allow the direct observation of the act of urination during the collection phase of urinalysis under the drug testing policy?
11. Under what circumstances, if any, will the company allow the direct observation of the act of urination by a member of a sex different than the donor?
12. Under what circumstances, if any, will the company allow the video taping of the donor's act of urination?
13. Please identify to what groups or individuals, if any, the results of the drug tests will be reported or communicated, e.g., the Governor's Substance Abuse Policy Institute.
If this type of communication is done, what means will be used to protect the general reputation of the employees of the bargaining unit from the stigma of being considered drug abusers?
14. What training, if any, will be done as part of the drug-testing program to educate employees as to the law of defamation and invasion of privacy for the disclosure of information about employee alleged drug test results?
15. What provisions, if any, will be in place to assure the dignity of the worker, from collection through notification of the results, who submits to a drug test?
16. What individuals, trained in the issues of drug testing in the workplace, will have access to the results of any drug tests performed on bargaining unit employees?
17. Which individuals, untrained in the issues of drug testing in the workplace, will have access to the results of any drug tests performed on bargaining unit employees?
IV. QUESTIONS ABOUT THE CIRCUMSTANCES, WHICH PROMPT THE COMPANY TO ORDER AN INDIVIDUAL TO SUBMIT TO A DRUG TEST
1. Please identify any federal law, rule or regulation or any state law, rule or regulation that requires you conduct drug testing of bargaining unit employees. Further, please identify what jobs in the workplace come under this requirement.
2. Will the company, under any circumstances, rely on information supplied by unidentified informants to ask a bargaining unit employee to take a drug test, e.g. a telephone report from an unidentified individual about someone's state of impairment.
If yes, identify under what circumstances you would rely on unidentified informants and what procedures you would have in place to assure reliability of the information so received.
3. Will the company, under any circumstances, rely on information supplied by identifiable informants to ask a bargaining unit employee to take a drug test?
If yes, under what circumstances would the company be prepared to reveal the identity of the informant, e.g., grievance investigation?
4. Will supervisors be trained to detect substance abuse in the workplace, e.g., distinguishing between substance abuse problems and other medical conditions?
If yes, how many hours will the training involve, who will do the training and how often will it be done?
5. If an individual refuses to take a drug test because of religious reasons, is the test result reported as positive, negative or invalid? What disciplinary action, if any, might the individual expect?
6. If an individual refuses to take a drug test because of reasonable concerns about the accuracy and reliability of the drug tests, is the test result reported as positive, negative or invalid? What disciplinary action, if any, might the individual expect?
7. If an individual refuses to take a drug test because he/she believes he/she is being singled out because of union activity, is the test result reported as positive, negative or invalid? What disciplinary action, if any, might the individual expect?
8. If an individual refuses to take a drug test because he/she believes he/she is being singled out because of the personal animosity from a supervisor, is the test result reported as positive, negative or invalid? What disciplinary action, if any, might the individual expect?
9. What happens to an individual who refuses to take a drug test because he/she believes he/she is being singled out to take a drug test because of having exercised legal rights, e.g., filed a Workers' Compensation claim?
10. What happens to an individual who refuses to take a drug test because he/she has fears that the drug test will reveal their usage of legally prescribed medications, e.g. contraception pills?
11. Will a union representative be notified before any drug test is administered?
12. Will the donor have the right to have a union representative present at the collection sight of the drug test?
13. Under what circumstances, if any, might a bargaining unit employee be asked to take a drug test outside of his/her normally scheduled hours?
14. What accidents, if any, would prompt the company to order a bargaining unit employee to be drug tested?
15. Under what circumstances, if any, would a bargaining unit employee be asked to take a drug test if he/she were the victim of a workplace accident?
16. What records or documentation would a supervisor be required to create before he/she asks an employee to submit to a drug test?
17. What records or documentation would a supervisor be required to create after he/she asks an employee to submit to a drug test?
18. Under what circumstances, if any, could an employee require a supervisor to submit to a drug test?
If the answer is never, please describe what employees are supposed to do if they have a reasonable belief that their supervisor is impaired due to substance abuse.
19. Before an employee is required to submit to a drug test, will he/she be allowed to fully consult with a union representative educated in workplace drug testing?
20. Before post-accident drug testing is done, will you require evidence that the employee caused the accident?
21.Do you plan to base your decisions about violations of the drug testing policy, at least on some occasions, on direct observation of observable phenomena while at work?
If yes, what training, if any, will the observers have in detecting drug abuse or misuse?
If no, how will the observers distinguish between symptoms that might be related to diabetes, eye disorders, stress or chronic fatigue syndrome and those related to drug use or abuse?
V. QUESTIONS ABOUT THE TESTS TO BE USED AND THE THRESHOLD AMOUNTS OF DRUG METABOLITES TO BE USED AS DEFINING A POSITIVE TEST.
1. Please identify what drugs or drug metabolites will be tested for under the proposed drug testing policy.
2. For each drug identified in question 1 above, please indicate what screening and confirmatory test will be employed under the drug testing policy for each drug or its metabolite.
Please identify whether the Food and Drug Administration has approved the identified testing mechanism, if you know.
3. For each drug identified in question 1 above, please indicate the cut off levels of drug or drug metabolite, the screening, confirmatory and reanalysis test will identify as a positive result.
4. For each of the drugs identified in question 1, please indicate what level of drug or its metabolite in the collected sample indicates drug use?
Please provide evidence to support your opinion.
5. For each of the drugs identified in question 1, please indicate what level of drug in the collected sample indicates work impairment.
Please provide evidence to support your opinion.
6. For each of the drugs identified in question 1, please indicate if you can make any assertion as to time of previous drug use. For example is the following a valid statement: 200 ng/ml of THC indicates marijuana use in the previous 8 hours.
7. If your policy is to treat as a positive test any evidence of drug in the collected specimen, i.e. a zero tolerance approach, will this be the same for illegal and legal drugs, e.g., marijuana and Tylenol with codeine?
8. The concentration of drug in a urine sample below which the assay (drug screening or confirmatory test) can no longer be considered reliable is the "sensitivity" limit. The "cutoff" point is the concentration limit that will actually be used to assay samples and below which tests will be considered negative. Please advise of the manufacturers cutoff and sensitivity limits of their assays for each drug or its metabolite identified in question 1.
9. What company policy, if any, will be used to eliminate false positives and false negatives in the screening and confirmatory tests?
10. What is the company understanding of the circumstances under which a false positive test result might occur?
11. Will the company provide brochures to all people required to take a drug test detailing the extent to which other drugs or substances cross react with the test under consideration?
12. Please detail the role, if any, of the Medical Review Officer (MRO), in the drug, testing program and include the identification and qualifications of the MRO, the physical location of his/her professional practice and the means, if any, by which a bargaining unit employee might have a face-to-face consultation with the MRO about the drug test to which he/she has been asked to submit.
13. Please indicate your understanding of the ethical obligation of the MRO to maintain confidentiality of information received from a bargaining unit employee in the course of a drug-testing situation.
14. Does the company assert that the level of "intoxication" of an individual due to marijuana use be gauged by urinalysis? Can his/her "use pattern" be determined?
If yes, please provide the documentation that is the basis for your belief.
15. Do you agree that the test systems used in the drug testing policy should be based on state-of-the-art methods and best-available-technology?
If yes, what assurances can you make that such methods and technology will be used?
16. What procedure, if any, will be in place if the MRO does not speak the same language as the employee?
17. If an individual has drug or drug metabolite in their urine due to taking a prescription drug of a relative, e.g., mother or spouse, and the evidence supports this contention, will the test result be reported as positive, negative or invalid?
18. The 1998 Iowa Drug Testing Statute allows the Medical Review Officer (MRO) to be a chiropractor. Under what circumstances, if any, would you rely on a MRO who is not a licensed physician, as required by the federal DHHS Mandatory Drug Testing Guidelines?
19. What laboratory or laboratories or what company will set up the tests and who is the person we can contact to discuss the lab procedures and the quality assurance and performance testing programs?
20. Does the employee have to sign any forms as part of the testing procedure and is the signature of those forms a condition of employment? If any forms are used, please provide us with a copy.
21. Is one of the requirements of your laboratory selection that the lab participate in a quality control plan/proficiency testing program from the American College of pathologists or the Joint Committee on the Accreditation of Hospitals?
If no, indicate the methods that will be used to guarantee quality standards?
22. Did the company consult with any experts or for-profit organizations in developing its policy?
If yes, please give us their names and addresses and describe their qualifications.
a. How many drug tests, if any, has the company done in the last three years, and what have the results been, that is the number of confirmed positives, and the number of negatives for each substance
b. the action that triggered the testing
c. action that was taken after the test results were known
d. the rate of positive test results on the basis of sex and race
23. Has the company contracted for or performed any internal research regarding drug levels in the body as those levels impair a person's ability to function on the job?
If yes, please identify such firms and/or experts and provide the details of any contracts or working agreements with such firms and/or experts.
24. If there is a written protocol/procedure manual or guidelines for the sample collection for drug test, please provide a copy to us.
VI. QUESTIONS ABOUT RANDOM DRUG TESTING
1. Do you plan to conduct unannounced drug testing allowed under the 1998 Iowa drug testing statute?
If yes, please describe the "neutral and objective selection process" which will be used to select employees to be tested.
2. Please identify the entity "independent from the employer" that shall select the employees to be tested.
3. Please identify the software program, manufacturer, distributor's name, address and telephone number that shall generate random numbers for the selection process
4. What percent of the bargaining unit shall be targeted for unannounced drug testing?
Please provide the decision-making criteria for that decision, including economic implications of various testing options.
Please identify all sources you used to fix that percent.
5. In how many cycles per year will random testing by done?
6. For the percent and the frequency of cycles you have selected, what is your understanding of how many employees are likely to be selected to be tested more than once a year?
7. What quality assurance mechanisms shall be in place to assure the accurate running of the computer generated random number selector?
8. What security means will you employ to maintain the confidentiality of the identity of those employees selected for random testing?
9. Please identify what pools of employees you will set up for random testing. Generally describe the pools and indicate what jobs will be in which pools, including whether management employees will be in pools with bargaining unit employees, will be in their own pool, or will not be tested.
10. Do you plan to conduct drug tests of employees during drug or alcohol rehabilitation?
If so, under what criteria will the decision to test be made?
If yes, will a substance abuse counselor or a similarly trained professional make the decision to test employees during rehabilitation?
Will that person advise management as to the results of any tests during rehabilitation?
If a substance abuse counselor or a similarly trained professional will not make the decision, please advise of the job title of the person who will be making the decision.
11. Do you plan to conduct drug tests of employees after completion of drug or alcohol rehabilitation?
If yes, under what criteria will the decision to test be made?
If yes, will a substance abuse counselor or a similarly trained professional make the decision to test employees after completion of drug or alcohol rehabilitation?
12. How will you identify employees who have completed drug or alcohol rehabilitation?
Will you ask employees to self-report their rehabilitation history?
13. What implications, if any, does a decision to test during or after drug rehabilitation have in light of the Americans with Disabilities Act?
14. Will employees who want to enter drug rehabilitation be able to use the Family and Medical Leave Act?
15. Will employees who want to enter drug rehabilitation be able to use sick leave, vacation, unused personal leave or a general leave of absence?
16. If you have an estimate of the number of bargaining unit employees who will be absent due to rehabilitation, on a yearly basis, please provide.
17. To evaluate the pool into which bargaining unit employees may be placed, please advise if the following employees, under the 1998 Iowa drug testing statute, are "actively involved in the day-to-day operations of the business": all chief executive officers
a. all vice-presidents
b. all supervisors
c. all managers
d. any other officer of the employer
18. If you have identified any of the persons in the previous questions as being actively involved in the day-to-day operations of the business, please advise of the reasons they will or will not be included in pools with bargaining unit workers.
VII. QUESTIONS ABOUT COLLECTION SITE PROCEDURES
1. Will you follow the collection site procedures of the Department of Health and Human Services, "Mandatory guidelines for Federal Workplace Drug Testing Programs," as amended?
2. If no, what training, if any, shall the collection site person be required to have?
3. Shall the collection site person be in a pool to be randomly tested?
4. If the collection site person does not speak the same language as the employee to be tested, what arrangements, if any will be made to have a translator present?
5. What chain of custody form do you intend to use, starting at the collection site? Please provide a sample of the form you intend to use.
6. How many collection sites will you have? Please give the address of each collection site you intend to use.
7. Please describe what materials, equipment and supervision you intend to have at each collection site?
8. For each collection site, please describe the temporary storage you will provide for collected samples, including time samples will be stored.
9. Please describe the procedure for packing and handling the collected samples for transportation to the drug-testing laboratory.
10. What security procedures shall be in place for the collection site?
11. Will each collection site be dedicated solely to drug testing?
If not, how will the portion of the facility dedicated to sample collection be secured?
12. Who will execute the chain of custody forms at the collection site?
13. Will handling and transportation of samples from one individual or place to another be accomplished through chain of custody procedures?
If yes, please describe those procedures.
If not, please explain why.
14. What effort, if any, will be made to minimize the number of persons handling specimens at the collection site?
15. Who will be permitted at the collection site when urine specimens are collected?
16. Will you allow direct observation of the sample urine collection if you have reason to believe that a particular donor may alter or substitute the specimen to be provided?
If yes, what facts and evidence will you rely up to form a judgment that the specimen may be in danger of being altered or substituted?
17. What precautions shall be taken to ensure that specimen not be adulterated or diluted during the collection procedure?
18. What precautions shall be taken at the collection site to assure that the information on the collected specimen bottle or container can identify the donor from whom the specimen was collected.
19. The DHHS Mandatory Testing Guidelines sets out "minimum precautions" to assure that unadulterated specimens are obtained and correctly identified at the collection site. Will you follow these guidelines?
20. Shall the collection site be accessible to peoples with disabilities and meet the accessibility guidelines of the Americans with Disabilities Act?
21. How shall the collection site person handle the split specimen samples?
22. Will specimens be placed in containers designed to minimize the possibility of damage during shipment? If yes, please provide a sample.
23. Will the collection site person retain the chain of custody form or pack it in the package with the specimen going to the drug-testing lab?
VIII. QUESTIONS ABOUT REHABILITATION
1. Under what circumstances, if any, would an employee with a positive drug test result be allowed to undergo substance abuse evaluation and treatment?
2. If an employee successfully completes rehabilitation, after a positive drug test, what monitoring, if any, would occur of the employee's work performance which would be different than if the employee had not been in a rehabilitation program?
3. If an employee is to have some opportunity for rehabilitation after a positive drug test, will the employee be able to choose the rehabilitation program?
If not, please identify the rehabilitation program(s) the employee shall be expected to use.
4. If an employee is in rehabilitation, what information shall be provided to the employer during that treatment about the employee's progress?
Appendix A Footnotes
1. See "Guideline Memorandum from the Office of the General Counsel of the NLRB on Drug and Alcohol Testing of Employees", September 8, 1987.
2. NLRB v. Acme Industrial Co., 385 U.S. 432, (1967)
3. Feldacker, Bruce, Labor Guide to Labor Law, Third Edition, Prentice Hall, p162
4. Impasse is not reached if there remain unanswered questions put forth by the union that are relevant to the mandatory subject of bargaining. The employer may only unilaterally implement its final offer after impasse. Feldacker, Bruce Labor Guide to Labor Law, Third Edition, Prentice Hall, p. 164
5. Elkouri, Frank and Elkouri, Edna Asper, Resolving Drug Issues, Bureau of National Affairs, Inc., Washington, D.C., 1993, p.240. The existence of a drug problem in the workplace is one factor an arbitrator will consider in a drug testing arbitration case, but the rationale for the drug testing policy will, more importantly set the scope of the employer's authority to reach into off-duty conduct to protect the reputation of the employer or to bolster their position as a fighter in the "War on Drugs."
-end-
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[1] Oleson, C., Negotiating and Teaching Workplace Drug Testing: A Labor Perspective, Labor Studies Journal, Vol. 28, No. 4, p. 70 (Winter 2004).
[2] Johnson-Bateman Co., 295 NLRB 180, 131 LRRM 1393 (1989).
[3] Star Tribune Division, 295 NLRB 543, 131 LRRM 1404 (1989).
[4] Note: Unions have 180 days from the date of the violation to file an unfair labor practice charge with the NLRB.
[5] Note the NLRB has stated that, absent a clear bargaining history, broad management rights clauses giving the employer the right “to issue, enforce, and change employer rules” or “make and apply reasonable rules for production, discipline, efficiency and safety” do not, standing alone, constitute a waiver of the union’s right to bargain over drug testing. See Guideline Memorandum from the Office of the General Counsel of the NLRB on Drug and Alcohol Testing, September 8,1987.
[6] Unions may also file an unfair labor practice charge (management’s failure to negotiate) under these circumstances, though the NLRB is likely to differ action until the grievance and arbitration process has concluded.
[7] Oleson, C., Negotiating and Teaching Workplace Drug Testing: A Labor Perspective, Labor Studies Journal, Vol. 28, No. 4, pgs. 84-54 (Winter 2004).
[8] ACLU Briefing Paper Number 5, ACLU, .
[9] Taken in part from: Oleson, C., Negotiating and Teaching Workplace Drug Testing: A Labor Perspective, Labor Studies Journal, Vol. 28, No. 4, p. 70 (Winter 2004).
[10] Note: the employer may restrict union access to highly personal information, such as an individual workers drug test results. The union can overcome this by having the worker authorize release of the information to the union. Sanitized information can also be provided – information with all names and identifying features removed.
[11] This would normally require that, in the case of urine testing, the original sample is split into three specimens to allow a second lab to have material for its testing. The first lab will use two samples – one for a screen test and one for a confirmation test.
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The only jobs where drug testing is legally required under federal law:
Drug and alcohol testing is required by federal law only for workers performing “safety sensitive functions” in certain industries identified under the Omnibus Transportation Employee Testing Act of 1991 – enforced by the U.S. Department of Transportation (DOT). This includes certain workers in aviation, commercial motor carriers (including Commercial Drivers License holders), maritime, natural gas and pipeline, railroad and transit. Nuclear power plant workers are also subject to drug and alcohol testing under Nuclear Regulatory Commission rules.
Contrary to popular belief, the Drug-Free Workplace Act of 1988 does not require or expressly authorize employers to implement alcohol and drug testing. Instead the law requires that some federal contractors and all federal grantees to provide drug-free workplaces as a condition of receiving a federal contract or grant. The Act does not apply to those who do not have or intend to apply for contracts and grants from the federal government valued at $100,000 or more nor does it apply to subcontractors or subgrantees. To comply with the Act, employers must provide a written anti-drug policy to covered workers, establish drug-free awareness programs with rehabilitation/EAP services, notify workers that they must abide by the policy (including the requirement that workers notify their employer if convicted of a criminal drug violation in the workplace), notify the contracting agency when the employer learns that its employee has been convicted of a criminal drug violation in the workplace, impose a “penalty” on any worker violating the policy and make ongoing, good-faith effort to maintain a drug free workplace by meeting the requirements of the Act.
Alcohol and Drug Testing
Iowa Law and Negotiating Alcohol and Drug Testing
• The Labor Center •
M210 Oakdale Hall
The University of Iowa
Iowa City, Iowa 52242-5000
319/335-4144
fax 319/335-4464
email at: labor-center@uiowa.edu
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This booklet was printed by the University of Iowa copy centers
by employees represented by AFSCME Local 12, Council 61
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