INTOXICATION DEFENSE DOES NOT REQUIRE PROCEDURES REQUIRED FOR SOME OTHER EMPLOYEE DRUG TESTS
In Davis v. Gordon Food Serv., Inc., the Iowa District Court in Polk County affirmed the Workers’ Compensation Commissioner’s ruling that evidence to support the intoxication defense under Section 85.16 does not need to be obtained in accordance with the rules and procedures under Section 730.5(7). See Iowa Code § 85.16; see also Iowa Code § 730.5.
Intoxication Defense
By statute, no compensation is owed to an employee when a drug test indicates the presence of alcohol or drugs at the time of a workplace injury (or immediately after), if it was a substantial factor in causing the injury. Iowa Code § 85.16(2)(b)(1). The statute states that when the presence of alcohol or drugs is detected, it shall be presumed that the employee was intoxicated at the time of the injury and that intoxication was a substantial factor in causing the injury. The burden of proof then shifts to the employee to prove that he or she was either (1) not intoxicated at the time of the injury, or (2) that intoxication was not a substantial factor in causing the injury. Iowa Code § 85.16(2)(b)(2).
Drug Testing Procedure of Section 730.5
Contained within the employer-employee offenses in Iowa’s code for criminal law and procedure, Section 730.5 provides the procedure for private sector workplace drug testing. Iowa Code § 730.5(7). The section outlines several aspects of the procedure, including that collection samples be split into two components (reserved for a second, independent test), and also contains provisions to ensure proper chain of custody and integrity of the samples. Iowa Code § 730.5(7)(b)-(e).
Employers that follow the procedures of Section 730.5 are afforded certain protections that would not otherwise exist in common law. Iowa Code § 730.5(11). However, the statute also outlines penalties and fees for employers, laboratories, and medical personnel that attempt to perform, or perform, employee drug testing in violation of Section 730.5. Iowa Code § 730.5(14)-(15).
Davis v. Gordon Food Serv., Inc.
In Davis v. Gordon Food Serv., Inc., the employee fell and sustained a back injury during the course of his employment. He then sought treatment with the medical provider to which his employer referred him, who also performed an employer-requested drug test—a procedure that the employer required after all workplace injuries. The test results came back positive for methamphetamines and amphetamines.
As a result of the positive drug test, the employer fired the employee and denied the employee’s claim for workers’ compensation benefits based on the intoxication defense under Section 85.16.
At hearing, the employee admitted to using methamphetamines three to four days prior to the test. However, the employee argued that the test results should not be admissible in the workers’ compensation proceedings because the test was performed in violation of Section 730.5.
In the alternative, the employee also argued that, even if the test results were admissible, his testimony that he was not intoxicated at the time of the accident should overcome the presumption of intoxication based on the positive test results.
The Deputy, and the Commissioner himself, ruled that test results were admissible regardless of whether or not they were obtained in violation of Section 730.5. They also found that an employee’s mere testimony that he was not intoxicated at the time of the accident is not enough in and of itself to overcome the presumption of intoxication under Section 85.16. The District Court affirmed both of these rulings on appeal.
The Court rejected the employee’s argument that Section 730.5 applied to 85.16, reasoning that if the legislature had intended to subject the intoxication defense to only evidence that was obtained in accordance with Section 730.5, it would have done so when it revised Section 85.16 in 2017. The Court’s reasoning that the fact the legislature did not create such a requirement speaks to the fact that such a requirement does not exist in Iowa.
The Court rejected the employee’s argument that his testimony, only, was enough to overcome the presumption of intoxication. The District Court affirmed the Deputy’s ruling (as adopted by the Commissioner) that more than mere self-service testimony is needed to overcome the presumption of intoxication.
Further Appeal
The employee in Davis v. Gordon Food Serv., Inc. filed a timely appeal of the District Court’s order. Briefs from both parties were filed, and the matter was submitted on August 9, 2023. No decision on the appeal has been issued at the time that this blog post was written.
It is important to remember that even if the holdings in Davis v. Gordon Food Serv., Inc. are affirmed on appeal, this is not a free license for employers to violate Section 730.5 with impunity. Instead, this case is an important reminder of the requirements of Section 730.5 and the standard of admissible evidence before the Division in workers’ compensation matters.
This post was drafted by Adam Barrett, a law clerk at Baylor Evnen Wolfe & Tannehill, LLP. If you have questions regarding the intoxication defense or workers’ compensation generally, please call Paul Barta or Micah Hawker-Boehnke at 402-475-1075.