Can You Refuse An Employee Drug/Alcohol Test?

As discussed in other posts here and here, Iowa Code 730.5 allows private employers to conduct workplace drug and and alcohol testing on current and prospective employees.   Iowa Code 730.5 gives employers the power to demand drug and alcohol testing and issue discipline, including termination, against employees who refuse to submit to testing.  This employment law raises a few questions.  First, can you ever legitimately refuse a drug test, such that your employer cannot discipline you for doing so?  Second, what exactly is a “refusal” under Iowa’s drug and alcohol testing law?

The only way that an employee can safely refuse a drug or alcohol test is if the test is not lawful or valid, meaning that the employer has no right to demand the test.  For example, I’ve noted that many employers are improperly insisting on post-injury testing under circumstances in which Iowa Code 730.5 doesn’t authorize such a test.   That’s an example of a situation in which, because the requested test is illegal, the employee can legally refuse the test without disciplinary repercussions.  But except for situations involving an illegal test request, employees generally don’t have a right to refuse testing and expose themselves to discipline if they do.

Determining whether there’s a “refusal” is a bit trickier.  Obviously, directly refusing the test, walking out on the test, or not showing up for the test are clear testing refusals.  There’s a gray area though between such overt refusals and lesser forms of possible refusal.  Neither Iowa Code 730.5 nor Iowa’s appellate courts have addressed the issue of whether anything less than a categorical refusal can constitute a refusal to submit to an employee drug or alcohol test.

I’m currently litigating a case involving a less-than-obvious refusal.  My position is that an “implied refusal” cannot be determined by arbitrary time limits or the like.  Instead, a court has to look at the employee’s actions regarding the test and all of the surrounding circumstances to determine whether the employee has implicitly refused a drug or alcohol test.  This will likely be a question that is later answered by the Iowa Court of Appeals or the Iowa Supreme Court.

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