HOUSE BILL REPORT
HB 1876
BYRepresentatives Wang, Patrick, R. King and Walker
Limiting drug and alcohol testing.
House Committe on Commerce & Labor
Majority Report: The substitute bill be substituted therefor and the substitute bill do pass. (9)
Signed by Representatives Wang, Chair; Cole, Vice Chair; Jones, R. King, O'Brien, Patrick, Sanders, Sayan and C. Smith.
Minority Report: Do not pass. (2)
Signed by Representatives Fisher and Walker.
House Staff:Chris Cordes (786-7117)
AS REPORTED BY COMMITTEE ON COMMERCE & LABOR FEBRUARY 3, 1988
BACKGROUND:
Washington statutes do not prohibit or regulate drug testing by employers or licensing agencies. The use of drug tests in the workplace has raised issues concerning job performance, workplace safety and protecting the right to privacy.
SUMMARY:
SUBSTITUTE BILL: A public or private employer or governmental licensing agency may not request or require an employee, licensee or job applicant to undergo alcohol or drug testing unless the requirements of the act for such testing are met. Tests on samples of breath to determine blood alcohol levels are excluded from the act.
Except under specified circumstances, an employer or licensing agency may not request or require drug or alcohol testing unless the employer or agency has a reasonable suspicion arising from observable behavior in the course of employment that the employee or licensee is under the influence of drugs or alcohol or that the employee or licensee has caused a significant work-related accident.
Applicants for employment or licensing may not be requested or required to undergo drug or alcohol testing or a physical examination with drug or alcohol testing unless the same test is required of all applicants who are finalists for employment in the same position. Notice of the drug or alcohol testing requirement must be contained in any advertising soliciting applicants or in the application for employment. Personal notice is required during the first direct contact with the applicant.
Random or mandatory testing is prohibited except for: (1) an employee or licensee who has had a confirmed positive test and who chooses not to participate in a rehabilitation program or who continues to work during rehabilitation; (2) an employee or licensee who is undergoing rehabilitation, if testing is requested or required by the treatment provider. The results of tests administered during a treatment program may not be released to the employer or licensing agency; and (3) drug or alcohol testing conducted as part of a routine annual comprehensive medical evaluation with at least two days notice to the employee or licensee.
Certain employments are required to comply with the act only to the extent that the act is not inconsistent with the applicable federal law. These employments include those in which the specific work performed requires the employees or licensees to be subject to drug or alcohol testing under federal regulations or policy, including federally regulated facilities and the nuclear power industry, or federal contracts requiring testing for security, safety or protection of sensitive data. An exemption is provided for substance abuse monitoring programs conducted by the disciplinary boards for health care professionals and for law enforcement personnel who enforce the Controlled Substances Act.
Before an employer or agency may implement a drug or alcohol testing program, a testing policy must be written, in consultation with the employees. For programs involving employees or licensees, the employer or agency must provide access to an employee assistance program. The written policy must include: (a) procedures and consequences of a voluntary admission of a substance abuse problem; (b) the employees, licensees or applicants subject to testing; (c) the circumstances under which testing is required; (d) the right to refuse the test and the consequences of refusal; (e) any adverse personnel action that may be taken on a confirmed positive test; (f) the right to explain the results of a test and pay for a confirmatory retest; (g) requirements for the collection of samples, including a prohibition against direct or indirect observation for urine samples, except by medical personnel of the respective sex of the person being testing, and chain of custody procedures; (h) the drugs or metabolites for which tests will be conducted; (i) an explanation of the right to obtain other samples; (j) the threshold levels for positive tests; (k) the opportunities for rehabilitation; and (l) appeal procedures.
The employer or agency is required to provide notice of the drug or alcohol testing policy to affected employees. The employer or agency may not request or require the signing of a form attempting to waive the employee, licensee or applicant's rights or to diminish an employer's or agency's obligations.
Any drug or alcohol test must be performed in a laboratory qualified under federal regulations to receive medicare reimbursement, and, after August 1, 1990, in a laboratory certified or accredited by nationally recognized accrediting program for forensic toxicology. A laboratory may report a test as positive only if both the initial screening test and the confirmation test are positive. The laboratory is responsible for preserving the tested sample for at least 90 days.
Before an employee, licensee or applicant is subjected to a drug or alcohol test, the employee, licensee or applicant must be given the opportunity to provide any information concerning medications taken or other factors that might affect the outcome of the test. The information may not be revealed to the employer or agency. Procedures for requesting a confirmatory retest are specified.
An employer may not take adverse personnel action against an employee nor may a licensing agency withdraw licensure on the basis of a screening test that has not been verified by a confirmation test. An employer or agency may not take disciplinary action on the basis of the first positive test unless the employee or licensee is offered the opportunity for rehabilitation, except for suspension of the employee or licensee under specified circumstances. The tested employee or licensee may be temporarily suspended or transferred pending the outcome of the test if reasonably necessary to protect the health or safety of the employee or the public. Suspension may also be required while the employee or licensee is in rehabilitation if the program determines that the person is unfit to return to regular employment. Employers or licensing agencies are not prohibited from establishing rules related to possession or use of drugs or alcohol nor from taking disciplinary action based on violation of these rules.
Employers and licensing agencies are responsible for insuring that the records of test results only show information regarding chemical substances likely to affect the ability of the employee or licensure to perform his or her job. Tests results are private and confidential information that may not be disclosed by the employer, licensing agency or laboratory without consent. Test results may not be received in evidence or obtained in discovery except in judicial proceedings related to the testing, as required under federal law or to a substance abuse treatment program. The test results may be recorded in personnel records. However, positive results must be expunged if the employee has successfully completed rehabilitation.
In a civil action to enforce the act, an court may award, in addition to actual damages, reinstatement of the employee or licensee and attorneys' fees and costs. For reckless or intentional violations, a court may award a penalty to the employee, licensee or applicant of twice any lost wages or $500, whichever is greater. The prevailing party may be awarded attorney fees and costs for a frivolous law suit. A cause of action may not be based on: (a) failure of an employer to establish a drug or alcohol testing program; (b) failure to test for certain substances or diseases; (c) failure to take disciplinary action based on a positive test result; or (d) termination of a testing program. Any civil action must be brought within six months of the alleged violation.
An employee or licensee may not be considered "handicapped" solely on the basis of a positive test or because of participation in rehabilitation.
Collective bargaining agreements may contain provisions with greater employee protections.
Employees or licensees may not be discriminated against for filing a complaint or testifying in an action involving violations of the act.
SUBSTITUTE BILL COMPARED TO ORIGINAL: The following changes were incorporated into the substitute bill:
The policy statement is deleted that recognizes the right to privacy to the workplace. Excluded from the coverage of the bill are tests that are designed to determine blood alcohol levels from samples of breath. An exemption is provided for law enforcement personnel whose job assignment specifically requires enforcement of the Controlled Substances Act or analysis of controlled substances.
Reasonable suspicion is amended to include a reasonable suspicion that the employee or licensee caused a significant work-related accident. The requirement is deleted that job applicants must be given a conditional job offer prior to testing. The prior notice requirement for testing in conjunction with physical examinations is changed from 2 weeks to 2 days.
For employees or licensees refusing rehabilitation, testing is increased from a maximum of 4 to a maximum of 6 times during a one year period. After a positive test, employers or licensing agencies are authorized to test, up to 6 times, employees or licensees who return to work during the course of their rehabilitation program. An employer or licensing agency may suspend an employee or licensee on the basis of a positive test, but only during the period that the person is in rehabilitation and the rehabilitation program determines that the employee or licensee is unfit to return to regular employment.
A six-month statute of limitations is provided for civil actions alleging violation of the act. Damages for an intentional or reckless violation of the act are changed to provide for two times lost wages or $500, whichever is greater, in addition to actual damages. The triple damage award for other violations is deleted. No cause of action is authorized for an employer or licensing agency's failure to take disciplinary action based on a positive test result.
A provision is added that an employee or licensee may not be considered "handicapped" solely on the basis of a positive test result or because of participation in rehabilitation.
An effective date of January 1, 1989, is added.
Fiscal Note: Not Requested.
Effective Date:The bill takes effect January 1, 1989, except section 10 takes effect August 1, 1990.
House Committee ‑ Testified For: Susie Tracy, Association of Washington Business Task Force on Drug Testing and the Washington Public Power Supply System (with concerns); Chuck Bailey, Washington State Labor Council (with concerns); Ron English, Washington Public Power Supply System (with concerns); Callie Wilson, Washington State Occupational Health Nurses (with concerns); Cindy Zehnder, Joint Council of Teamsters (with concerns); and Becky Bogard, Laboratory of Pathology and Eastside Medical Laboratory (with concerns).
House Committee - Testified Against: Steve Lindstrom, Washington State Transit Association; Jerry Sheehan, American Civil Liberties Union; Dick Ducharme, Iowa Beef Packers Incorporated; Bob Dilger, Washington State Building and Construction Trades Council; and Julie Kebler and Monty Lish, METRO.
House Committee - Testimony For: To protect privacy rights and to ensure a safe workplace, statutory regulation of drug testing is needed. However, further work is required before an acceptable compromise can be reached.
House Committee - Testimony Against: The bill does not protect employee privacy rights and does not provide employers with the flexibility needed to ensure a drug-free workplace.