September 28, 2021

Volume XI, Number 271

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Failure To State Cost Of Confirmatory Re-Test Violates Iowa Drug Testing Law

An employer’s failure to notify an employee of the cost of a confirmatory re-test of his original drug test specimen is a violation of the Iowa drug testing law.  Woods v. Charles Gabus Ford, Inc., Case No. 19-0002 (Iowa June 25, 2021).

The Iowa drug testing statute imposes many requirements on employers, including an obligation to notify current employees of confirmed positive test results. The notice must be provided in writing, by certified mail, return receipt requested, and it must inform the employee of the right to request a confirmatory retest of the sample as well as the cost imposed on the employee for the retest (different notice obligations are required for applicants).

In Woods, the employer terminated an employee for testing positive on an employer-required random drug test. The employer sent a letter to the employee informing him of the results of the drug test, his right to request a confirmatory retest, and that he would have to pay for a confirmatory retest. The employer did not specify the cost of the retest (which should be consistent with the employer’s cost for conducting the initial confirmatory test). The employer sent the letter via certified mail, without return receipt requested. The employee filed suit, alleging the employer failed to substantially comply with the notice provisions of the statute.

The Court explained that the “ultimate question” was whether the letter provided notice of the positive test result and a meaningful opportunity to consider whether to request a confirmatory retest.  Under this standard, the employer’s failure to specify the cost of the retest violated the statute. The Court reasoned that the cost of a retest is “vital information for making an informed decision.” It made no difference that the employee testified he might not have asked for a retest had he been informed of the cost – he was aggrieved under the statute because he could not make an informed decision.

As to the employer’s failure to send the letter return receipt requested, the court stated that there was no persuasive distinction between sending mail return receipt requested and sending it by certified mail. Rather, both conveyed the serious nature of the letter, and therefore sending the letter by certified mail substantially complied with the requirements of the Iowa drug testing law.

The Court also reasoned that back pay was appropriate because there was no way to know what the outcome of the retest would have been. The Court also remanded the case for a determination about whether front pay would be appropriate as well.

This case serves as another reminder that Iowa employers must strictly comply with the technical requirements of the state’s drug testing statute.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 182
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About this Author

Catherine A. Cano, Jackson Lewis, Federal Disability Lawyer, Retaliation Matters Attorney
Associate

Catherine A. Cano is an Associate in the Omaha, Nebraska, office of Jackson Lewis P.C. She represents management in all areas of labor and employment law. 

Ms. Cano helps clients navigate state, federal, and local leave and disability laws. Ms. Cano has experience in litigation and arbitration in several areas, including employment discrimination, retaliation and whistleblower claims, and non-competes and unfair competition. Ms. Cano’s practice also includes assisting clients involved in union organization campaigns, collective bargaining,...

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