WSR 98-17-066

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Health and Rehabilitative Services Administration)

[Filed August 17, 1998, 11:05 a.m.]



Original Notice.

Preproposal statement of inquiry was filed as WSR 98-09-093.

Title of Rule: WAC 440-26-010 Definitions, 440-26-210 Program requirements--Substance abuse testing, and 440-26-215 Program requirements--Clean card program.

Purpose: Establish rules allowing "clean card" program whereby employers who hire large numbers of employees for short-term work can eliminate repetitive preemployment drug testing and be eligible for certification in the worker compensation discount program. Amending definitions to include clean card program and random testing pool.

Statutory Authority for Adoption: RCW 49.82.130.

Statute Being Implemented: RCW 49.82.130.

Summary: Chapter 440-26 WAC requires a preemployment drug test for each new hire, a disincentive for the implementation of drug-free workplace programs by many employers who hire large numbers of workers for short-term work. The revision proposed in this rule would require (1) constitution of discreet groups of employers and any participating employee groups into identified clean card programs; (2) involvement of all clean card program employees in a random drug testing program; and (3) compliance of employers will [with] all other requirements of chapter 440-26 WAC. This will increase employer participation and labor support, and will further the goals and objectives of the program.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Henry Govert, DASA, P.O. Box 45330, Olympia, 98504-5330, (360) 438-8092.

Name of Proponent: Department of Social and Health Services, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The original chapter 440-26 WAC authorizes employers to receive a discount on their worker compensation premiums upon certification by DSHS that they have implemented a drug-free workplace program combining enumerated provisions. Among these are provisions that all new hires must have a preemployment drug test, paid for by the employer. This provision has proved to be a disincentive for employers, such as in the construction industry, who hire multiple short-term employees for specific projects, and has been seen as unnecessary and insulting to workers required to be tested often. The proposed rule would allow an exception in the form of a "clean card" program, whereby, following an initial negative preemployment test, deterrence to further alcohol or drug use would be provided by all the employees within the specified group being in a pool from which employees would be randomly selected for occasional drug testing. It is anticipated that upwards of one hundred fifty additional employers will apply for certification in the drug-free workplace discount program, thus helping promote the objectives of decreased employer costs through safer workplaces and increased employee health and welfare through rehabilitation.

Proposal Changes the Following Existing Rules: WAC 440-26-010 Definitions, is amended to add definitions of clean card program, random testing, and random testing pool. WAC 440-26-210 Program requirements--Substance abuse testing, is amended to allow exception of repeated preemployment testing for employees in clean card program.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Participation in the drug-free workplace discount program, including the clean card program, is voluntary for employers. Employers are not required to apply for the discount. For those employers who do, a minimal application fee ($25 or $50) has been set, at the suggestion of representatives of small business associations.

RCW 34.05.328 applies to this rule adoption. These rules meet the definition of a "significant legislative rule" and a cost benefit analysis has been prepared. To receive a copy, contact Henry Govert, Division of Alcohol and Substance Abuse, P.O. Box 45330, Olympia, WA 98504-5330, (360) 438-8092, fax (360) 438-8078.

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on September 22, 1998, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Paige Wall by September 10, 1998, phone (360) 902-7540, TTY (360) 902-8324, e-mail pwall@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Paige Wall, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 902-8292, by September 22, 1998.

Date of Intended Adoption: September 29, 1998.

August 13, 1998

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit



AMENDATORY SECTION (Amending WSR 96-16-015, filed 7/25/96, effective 8/25/96)



WAC 440-26-010  Definitions. Unless the context clearly indicates otherwise, the definitions in this section apply throughout this chapter.

(1) "Alcohol" means ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from whatever source or by whatever process produced.

(2) "Alcohol test" means a chemical, biological, or physical instrumental analysis administered for the purpose of determining the presence or absence of alcohol within an individual's body systems.

(3) "Clean card program" means a drug-free workplace program which allows employers with rotating groups of employees an alternative method of participating in the drug-free workplace discount program. In addition to the other requirements of this chapter, clean card programs require random testing instead of repetitive pre-employment testing.

(4) "Department" means the department of social and health services, division of alcohol and substance abuse.

(((4))) (5) "Drug" means amphetamines, cannabinoids, cocaine, phencyclidine (PCP), methadone, methaqualone, opiates, barbiturates, benzodiazepines, propoxyphene, or a metabolite of any such substances.

(((5))) (6) "Drug test" means a chemical, biological, or physical instrumental analysis administered on a specimen sample for the purpose of determining the presence or absence of a drug or its metabolites within the sample.

(((6))) (7) "Drug-free workplace program" means a set of workplace-based policies and procedures designed to reduce workplace involvement with alcohol and other drugs, and increase safety, productivity, and worker health. For the purpose of these regulations, "drug-free workplace program" is synonymous with "substance abuse testing program" as used in chapter 127, Laws of 1996.

(((7))) (8) "Employee" means a person who is employed for salary, wages, or other remuneration by an employer.

(((8))) (9) "Employee assistance program" means a program designed to assist in the identification and resolution of job performance problems associated with employees impaired by personal concerns. A minimum level of core services must include: Consultation and professional, confidential, appropriate, and timely problem assessment services; short-term problem resolution; referrals for appropriate diagnosis, treatment, and assistance; follow-up and monitoring; employee education; and supervisory training. Any employee assistance program under this chapter must contain a two-year employee follow-up and monitoring component.

(((9))) (10) "Employer" means an employer subject to Title 51 RCW but does not include the state or any department, agency, or instrumentality of the state; any county; any city; any school district or educational service district; any municipal corporation, or any self-insured employer.

(((10))) (11) "Injury" means a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result and occurring from without, and such physical conditions as result therefrom.

(((11))) (12) "Job applicant" means a person who has applied for employment with an employer and has been offered employment conditioned upon successfully passing a drug test and may have begun work pending the results of the drug test.

(((12))) (13) "L & I" means the department of labor and industries.

(((13))) (14) "Last-chance agreement" means a notice to an employee who is referred to the employee assistance program due to a verified positive alcohol or drug test or for violating an alcohol or drug-related employer rule that states the terms and conditions of continued employment with which the employee must comply.

(((14))) (15) "Random testing" means a method of selecting employees for alcohol or drug testing through a scientifically valid method, such as computer-based generation of employee identification numbers, in which each employee has an equal chance of being chosen each time selections are made. Random testing is sometimes called "lottery" testing.

(16) "Random testing pool" means the total of all employees of the employers in a clean card program.

(17) "Rehabilitation program" means a chemical dependency treatment program approved by the department that is capable of providing expert identification, assessment, and treatment of employee drug or alcohol abuse in a confidential and timely service. Any rehabilitation program under this chapter must contain the capacity to provide a two-year continuing care component.

(((15))) (18) "Substance abuse test" or "test" means a chemical, biological, or physical instrumental analysis administered on a specimen sample for the purpose of determining the presence or absence of a drug or its metabolites in a urine sample or of alcohol within a breath sample.

(((16))) (19) "Verified positive test result" means a confirmed positive test result obtained by a laboratory meeting the standards specified in this chapter that has been reviewed and verified by a medical review officer in accordance with medical review officer guidelines promulgated by the United States Department of Health and Human Services.

(((17))) (20) "Workers' compensation premium" means the medical aid fund premium and the accident fund premium under Title 51 RCW.



[Statutory Authority: 1996 c 127 § 13. 96-16-015, § 440-26-010, filed 7/25/96, effective 8/25/96.]



AMENDATORY SECTION (Amending WSR 96-16-015, filed 7/25/96, effective 8/25/96)



WAC 440-26-210  Program requirements--Substance abuse testing. (1) To be certified for the worker compensation premium discount, an employer shall provide a drug-free workplace program that includes substance abuse testing. In conducting substance abuse testing the program shall:

(a) Require all job applicants not enrolled in a clean card program as described in WAC 440-26-215 to submit to a drug test after extending a conditional offer of employment. The employer may use a refusal to submit to a drug test or a verified positive test as a basis for not hiring the job applicant.

(b) Investigate each workplace injury that results in a worker needing off-site medical attention and require an employee to submit to drug and alcohol tests if the employer reasonably believes the employee has caused or contributed to an injury which resulted in the need for off-site medical attention. An employer need not require that an employee submit to drug and alcohol tests if a supervisor, trained in accordance with WAC 440-26-230, reasonably believes that the injury was due to the inexperience of the employee or due to a defective or unsafe product or working condition, or other circumstances beyond the control of the employee. Under this chapter, a first-time verified positive test result may not be used as a sole basis to terminate an employee's employment. However, nothing in this section prohibits an employee from being terminated for reasons other than the positive test result.

(c) Require employees referred to the employee assistance program as a result of a verified positive drug or alcohol test or an alcohol or drug-related incident in violation of employer rules to submit to drug and alcohol testing in conjunction with any recommended rehabilitation program. If the employee assistance program determines that the employee does not require treatment services, the employee shall still be required to participate in follow-up testing. However, if an employee voluntarily enters an employee assistance program, without a verified positive drug or alcohol test or a violation of any drug or alcohol related employer rule, follow-up testing is not required. If follow-up testing is conducted, the employer shall ensure the frequency of the testing is at least four times a year for a two-year period after completion of the rehabilitation program and advance notice of the testing date may not be given. A verified positive follow-up test result shall normally require termination of employment.

(2) This section does not prohibit an employer from conducting other drug or alcohol testing, such as upon reasonable suspicion or a random basis, although neither reasonable suspicion nor random testing is required under this chapter.

(3) Laboratory analysis of drug specimens, both initial and confirmatory, must be performed by laboratories approved either by the substance abuse and mental health administration, or the College of American Pathologists under the Forensic Urine Drug Testing program (FUDT).

(4) Specimen collection and substance abuse testing under this section must be performed in accordance with regulations and procedures approved by the United States Department of Health and Human Services and/or the United States Department of Transportation Regulations((, including)) as described in 49 C.F.R Sec. 382.305 (1994). These regulations and procedures include:

(a) Cutoff levels((,)) for alcohol and drug testing((,)); and

(b) Controlled substances for which testing must ((include testing for)) be done: marijuana, cocaine, amphetamines, opiates, and phencyclidine.

Employers may test for any drug listed in WAC 440-26-010(4).

Employers certified through a clean card program must also comply with department of transportation regulations regarding the selection process for random testing and conduct a minimum fifty percent annual random testing rate for controlled substances as described in 49 C.F.R. Sec. 382.305 (1994).

(5) Within five working days after receipt of a verified positive test result from the laboratory, an employer shall inform an employee or job applicant in writing of the positive test result, the consequences of the result, and the options available to the employee or job applicant, and shall furnish to the employee or job applicant, upon request, a copy of the test result.

(6) An employer shall pay the cost of all drug or alcohol tests that the employer requires of employees and job applicants under this chapter.

(7) An employee or job applicant shall pay the cost of additional tests not required by the employer.



[Statutory Authority: 1996 c 127 § 13. 96-16-015, § 440-26-210, filed 7/25/96, effective 8/25/96.]



NEW SECTION



WAC 440-26-215  Program requirements--How employers get certified through a clean card program. Employers wishing to be certified for the drug-free workplace discount program through a clean card program must observe the application procedures in WAC 440-26-100. They must submit application materials to the department which include:

(1) A signed application form which contains an assurance of the employer's involvement in a clean card program;

(2) A statement that the employer's policy has been negotiated with employee unions where applicable; and

(3) A policy statement which, in addition to the other requirements of WAC 440-26-200, also includes:

(a) A requirement that:

(i) New employees either verify status in the clean card program, or submit to a pre-employment test; and

(ii) All company employees be subject to random testing.

(b) A description of the major provisions of the employer's clean card program.



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