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A Wild Ride - Reviewing the 2017 Iowa Legislative Session for Employers - May 16, 2017

Like on The Monster at Adventureland, the 2017 legislative session was a thrill ride full of ups and downs for Iowa employers. Starting with the signing of the collective bargaining bill in February and continuing to last week’s signing of the Fireworks bill, employers across the state have watched with amazement at the quick pace of this year’s session and the sheer number of changes.  Below is our list of the top 10 changes employers should be aware of.

  1. Workers Compensation (HF 518)

    My colleagues Becky Duffy and Jeff Baker wrote a post highlighting the top 10 changes, which I encourage employers to read, but I’ll review some of the biggest ones for employers here.

    • Presumption of intoxication. With this change, an employee’s injury is presumed to result from intoxication and thereby disqualifies from workers’ compensation if the employee tests positive for alcohol and/or illegal drugs at the time of, or immediately following the injury. We assume this change will increase the use of drug and alcohol testing post injury as the law specifically allows for testing in accidents that result in reportable injury or cause $1,000 or more in damaged property. 

      One question remains due to unclear wording: if an employee refuses to submit to a drug test will the same presumption of intoxication apply? If there is a drug testing policy in place, refusal to test could be a cause for direct termination of the employee for policy violation although this would not impair the employee’s right to apply for workers’ compensation.

    • Limit to compensation for only those injuries caused “in the course of the employee’s employment with the employer” thus excluding pre-existing conditions

  2. Drug Testing (SF 32)

    Testing hair for drugs is now allowed until this bill, which allows employer to conduct a less invasive test without the same privacy violations as urinalysis, the most common test used. That being said, testing hair does have some limitations. Analysis of hair only indicates that drugs have previously been used by the prospective employee, not that they are currently being used. Additionally, the chemicals and processes used by some in their hairstyles may affect the test results.

  3. Medical Cannabis Oil (HF 524)

    It seems like not a day goes by that you don’t hear about medical marijuana being considered in one state or another.  Currently 29 states and Washington D.C. have legalized medical marijuana and seven allow recreational use of the drug.

    During the 2017 session, the Iowa Legislature passed a very limited law allowing medical cannabis oil (without the same effects as marijuana) for certain medical conditions including cancer, Parkinson’s, HIV/AIDS, MS, and for the treatment of certain epileptic seizures. 

    Important for employers, this bill should not affect your drug testing policy.  As marijuana use remains illegal under federal law, as the employer, you can still ban your employees from being under the influence at work, and are allowed to terminate employees who test positive for marijuana.

  4. Testing for Sobriety (SF 444) 

    Under SF444, the state legislature asks the Department of Transportation to implement a program under which those who are arrested or convicted to being impaired while driving (OWI) to participate in a twice-daily testing program.

    The details of the program (including funding source, personnel, and enforcement) are at the discretion of the DOT, and thus employers are left with a number of questions all centered around how employers are expected to adapt to this new need to accommodate employees who must submit to the test. Absences for testing would not be covered by the ADA as a disability or as leave under FMLA as it is not for medical care.

    This would be particularly difficult for employers who have ratios to meet, such as a long-term care facility with a Certified Nursing Assistant and the loss of that assistant would mean the employer was out of ratio with state mandated care levels, or on a manufacturing line where someone performs a highly specialized or less common position. 

    Overall, this law is appreciated by many in its effort to reduce OWIs, but the devil is in the details and so far, there are no details.

  5. Texting While Driving (SF 234)

    Raise your hand if you know someone who has been in a car accident caused by distracted driving?  Everyone?  It certainly seems that way. It has never been a good idea to text, eat your breakfast, put on mascara, or do the cross-word puzzle while you drive. However, people do it, because people are prone to do dumb things when driving.  In an effort to combat distracted driving caused by cell phones, the Iowa legislature passed SF234, allowing police officers to ticket drivers for texting while driving. The law does not cover hands free devices or dispatch systems.

    This new law is important for employers as you consider the employees who drive on company time and/or in company vehicles.  This is a good time for you to update your policies stating that employees cannot “distracted drive” and are not permitted to use cell phones while driving. In updating your policies, ensure that your policies in regards to tickets are clear - if an employee is driving for the employer and receives a ticket, that ticket is the sole responsibility of the employee and must be immediately reported to the employer.  Although it may seem too much work to keep track of every employee’s traffic tickets, when the employee is driving on company time, especially in a company vehicle with your logo, you want to know if an employee is seen around town stopped by the police, and if your insurance rates are impacted by this reckless driver.

  6. Weapons (HF 517)

    House File 517 is a broad bill impacting a variety of areas of gun rights in the state. Included in the bill are changes to the right to carry, the use of deadly force (frequently called “stand your ground”), among others.

    The effort to disallow private employers from making their own rules regarding employee possession was blocked and is not part of the final law.  However, public employers are impacted by the provision:

    political subdivision of the state shall not enact an ordinance regulating the ownership, possession, legal transfer, lawful transportation, registration or licensing of firearms…[if] otherwise lawful under the laws of the state. 

    This provision defines a political subdivision to mean “a city, county or township.” However, that is not the common understanding of a political subdivision, which would normally also include ancillary organizations such as city and county hospitals.  Our understanding at this time is that hospitals are not included in this law; however, this issue is likely to be litigated in the coming months.

  7. No Cameras In The Bathroom (SF 499)

    This law prohibits the use of video cameras in bathroom sand lockers in state and local government buildings.  Although the law does not apply to private employers, this does provide a reminder that it’s not a good idea to have cameras in areas where employees have an expectation of privacy, such as bathrooms.

    If you have a surveillance policy, consider carefully Iowa law and limit your surveillance to business purposes, such as deterrence of theft or to provide safety for your employees.  It is also important to post conspicuously that the area is recorded. You do not have to be specific, you do not have to say, “the second hallway, three feet in,” but you do need to communicate that the premises are under video surveillance.

  8. State Only Minimum Wage (HF 295)

    The bill prohibits counties and cities from adopting higher minimum wages and other employment benefits than the standard state level. More information on this bill is available in Kelsey Crosse’s blog post.

  9. Job Service/Unemployment Benefits (HF 533)

    The Iowa legislature sought to clarify unemployment benefits following termination due to incarceration as a result of the Iowa Supreme Court case Sondra Irving vs. The Employment Appeal Board. A related law, HF 542, separately changes the amount needed to re-qualify, raising the limit to eight times the individual’s weekly amount rather than the prior flat base rate of $250.

  10. Public Union Bargaining (HF 291)

    Highly criticized in the media as “gutting” the bargaining rights of public unions, the legislation limits the subjects of negotiation, excluding insurance, leaves of absence for political activities, supplemental pay, transfer procedures, evaluation procedures, and staff reduction. If 30% or more of the bargaining unit are public safety employees, the exclusions do not apply.

    This law is already being litigated and it will likely be some time before final clarification is provided by the courts.

Stay tuned

Many of these changes are broadly drawn, some like sobriety testing are subject to significant rule making processes, others, like bargaining are already in litigation.  As an employer, these are areas to monitor as we begin to see the practical effects, legal loopholes, and unintended consequences of change.