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Sims v. NCI Holding Corp. - 759 N.W.2d 333, 2009 Iowa Sup. LEXIS 2, 28 I.E.R. Cas. (BNA) 1068, 157 Lab. Cas. (CCH) P60,729

Rule:

Nothing in Iowa Code § 730.5(9)(a)(1) (2005) requires an employer's written drug testing policy to make a disclosure that the employee is entitled to a confirmatory test. The express language of the statute mandates the policy disclose drug or alcohol testing or retesting by an employer. It does not require the policy to address testing or retesting requested by an employee. The legislature chose to require such a disclosure after a positive drug test as required by Iowa Code § 730.5(7)(i)(1), when that information is most urgently needed by, and useful to, the employee. 

Facts:

Jerrie Sims was randomly selected for a drug test administered for NCI by Houston Medical Testing Services, a professional third-party administrator. He was taken to a medical center where a sample of his urine was collected for drug screening on February 22, 2006. Sims's sample tested positive for amphetamines and methamphetamine, a result which was confirmed by gas chromatography with mass spectrometry. Medtox Laboratories sent the test results to Houston Medical Testing Services where they were reviewed by Dr. Jeffrey Britton. After further investigation, Dr. Britton reported the positive test result to Nancy Pitcock, a representative in NCI's human resources department. Pitcock informed Sims's supervisor of the positive test results on March 16, 2006, and instructed the supervisor to inform Sims. When Sims contacted Pitcock later that day, she again informed Sims of the positive test results and orally informed him of his right to undertake a confirmatory test at his own expense. Sims rejected the prospect of a confirmatory test, claiming he did not have adequate financial resources to pay for such a test. NCI terminated Sims's employment on March 16, 2006. Sims filed suit against NCI on April 13, 2006, claiming the company violated Iowa Code section 730.5 by failing to notify him in writing by certified mail, return receipt requested of the results of the test, his right to request and obtain a confirmatory test at an approved laboratory of his choice, and the fee payable by him for a confirmatory test. Sims also claimed NCI's "Drug, Alcohol, and Narcotics" policy failed to make disclosures required by Iowa Code section 730.5(9)(a)(1). Sims sought a declaration that NCI violated section 730.5, injunctive relief, compensatory damages including back pay, punitive damages, and an award of attorney fees. The district court found that American Building Components substantially complied with the statute but awarded Sims attorney fees and costs. Both parties appealed.

Issue:

Was NCI’s “Drugs, Narcotics, and Alcohol" policy compliant with the requirements set forth by Iowa Code § 730.5 (2005)?

Answer:

Yes.

Conclusion:

The Court concluded that the employer's written drug policy was compliant with § 730.5. Nothing in § 730.5(9)(a)(1) required the written policy to disclose the right to the confirmatory test. However, the oral notice of the right to the confirmatory test did not constitute substantial compliance with § 730.5(7). Sims was not entitled to back pay, punitive damages, or reinstatement, but the Court held that the district court was authorized to award attorney fees and court costs against the employer pursuant to § 730.5(15).

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