BP BHEAD INT H

AN ACT Relating to providing for drug-free workplaces; adding a new chapter to Title 49 RCW; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. It is the intent of the legislature to promote drug-free workplaces in order that employers in this state be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace, and reach their desired levels of success without experiencing the costs, delays, and tragedies associated with work-related accidents resulting from substance abuse by employees.

NEW SECTION. Sec. 2. Unless the context clearly requires 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) "Chain of custody" means the methodology of tracking specified materials, specimens, or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials, specimens, or substances and providing for accountability at each stage in handling, testing, and storing materials, specimens, or substances and reporting test results.

(3) "Collection site" means a place where individuals present themselves for the purpose of providing a urine or breath specimen to be analyzed for the presence of drugs or alcohol.

(4) "Collector" means the person who instructs and assists individuals at a collection site and who receives and makes the initial examination of the specimen provided by those individuals.

(5) "Confirmation test," "confirmed test," or "confirmed substance abuse test" means a second analytical procedure used to identify the presence of a specific drug or metabolic in a specimen. The confirmation test must be different in scientific principle from that of the initial test procedure. This confirmation method must be capable of providing requisite specificity, sensitivity, and quantitative accuracy.

(6) "Department" means the department of labor and industries.

(7) "Drug" means amphetamines, cannabinoids, cocaine, phencyclidine (PCP), methadone, methaqualone, opiates, barbiturates, benzodiazepines, propoxyphene, or a metabolite of any such substances. An employer may test an individual for any or all of these. This program will test for marijuana, cocaine, amphetamines, opiates, and phencyclidine.

(8) "Employee" means a person who works for salary, wages, or other remuneration for an employer.

(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, 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; supervisory training; and quality assurance.

(10) "Employer" means a person or entity that is subject to the provisions of this chapter but does not include the state or any department, agency, or instrumentality of the state; any county; any county or independent school system; any municipal corporation; or any employer which is self-insured for the purposes of this chapter.

(11) "Initial test" means a sensitive, rapid, and reliable procedure to identify negative and presumptive positive specimens. An initial test must use an immunoassay procedure or an equivalent procedure or must use a more accurate scientifically accepted method approved by the national institute on drug abuse as more accurate technology becomes available in a cost-effective form.

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

(13) "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 company rule that states the terms and conditions of continued employment with which the employee must comply. Failure to comply with all the terms of this agreement normally will result in termination of employment.

(14) "Medical review officer" means a licensed physician trained in the field of alcohol and other drug testing who provides medical assessment of positive test results, requests reanalysis if necessary, and makes a determination whether or not alcohol or other drug abuse has occurred.

(15) "Nonprescription medication" means a drug or medication authorized under federal or state law for general distribution and use without a prescription in the treatment of human disease, ailments, or injuries.

(16) "Prescription medication" means a drug or medication lawfully prescribed by a physician for an individual and taken in accordance with the prescription.

(17) "Rehabilitation program" means an established program capable of providing expert identification, assessment, and resolution of employee drug or alcohol abuse in a confidential and timely service. This service shall in all cases be provided by persons licensed or appropriately certified as health professionals to provide drug or alcohol rehabilitative services. All treatment services must contain a two-year continuing care component.

(18) "Specimen" means tissue, blood, breath, urine, or other product of the human body capable of revealing the presence of drugs or their metabolites or of alcohol.

(19) "Substance" means drugs or alcohol.

(20) "Substance abuse test" or "test" means a chemical, biological, or physical instrumental analysis administered for the purpose of determining the presence or absence of a drug or its metabolites or of alcohol.

(21) "Threshold detection level" means the level at which the presence of a drug or alcohol can be reasonably expected to be detected by an initial and confirmatory test performed by a laboratory meeting the standards specified in this chapter. The threshold detection level indicates the level at which a valid conclusion can be drawn that the drug or alcohol is present in the employee's specimen.

(22) "Verified positive test result" means a confirmed positive test result by the drug testing laboratory 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.

NEW SECTION. Sec. 3. If an employer implements a drug-free workplace program substantially in accordance with section 4 of this act, the employer shall qualify for certification for a five percent premium discount under the employer's workers' compensation insurance policy as provided under chapter 51.16 RCW.

NEW SECTION. Sec. 4. (1) A drug-free workplace program must contain the following elements:

(a) Written policy statement as provided in section 5 of this act;

(b) Substance abuse testing as provided in section 6 of this act;

(d) Employee education as provided in section 9 of this act; and

(e) Supervisor training in accordance with section 10 of this act.

(2) In addition to the requirements of subsection (1) of this section, a drug-free workplace program must be implemented in compliance with the confidentiality standards provided in section 12 of this act.

NEW SECTION. Sec. 5. (1) An alcohol and drug-free workplace program must contain a written substance abuse policy statement in order to qualify for the premium discount provided under section 3 of this act. The policy must:

(a) Notify employees that the use or being under the influence of alcohol during working hours is prohibited;

(b) Notify employees that the use, purchase, possession, or transfer of illegal drugs or having illegal drugs in their system is prohibited;

(c) Identify the types of testing an employee or job applicant may be required to submit to or other basis used to determine when such a test will be required;

(d) Identify the actions the employer may take against an employee or job applicant on the basis of a verified positive test result;

(e) Contain a statement advising an employee or job applicant of the existence of this chapter;

(f) Contain a general statement concerning confidentiality;

(g) Identify the consequences of refusing to submit to a drug test;

(h) Contain a statement advising an employee of the employee assistance program, if the employer offers the program, or advising the employee of the employer's resource file of assistance programs and other persons, entities, or organizations designed to assist employees with personal or behavioral problems;

(i) Contain a statement that an employee or job applicant who receives a positive confirmed test result may contest or explain the result to the employer within five working days after written notification of the positive test result; and

(j) Contain a statement informing an employee of the provisions of the federal drug-free workplace act or chapter 23 of Title 45, the drug-free public work force act of 1990, if applicable to the employer.

(2) An employer not having a substance abuse testing program in effect on July 1, 1995, shall ensure that at least sixty days elapse between a general one-time notice to all employees that a substance abuse testing program is being implemented and the beginning of the actual testing. An employer having a substance abuse testing program in place before July 1, 1995, is not required to provide a sixty-day notice period.

(3) An employer shall include notice of substance abuse testing on vacancy announcements for those positions for which testing is required. A notice of the employer's substance abuse testing policy must also be posted in an appropriate and conspicuous location on the employer's premises, and copies of the policy must be made available for inspection by the employees or job applicants of the employer during regular business hours in the employer's personnel office or other suitable locations.

NEW SECTION. Sec. 6. (1) Substance abuse testing must be in conformity with the standards and procedures established in this chapter and all applicable rules adopted by the department under this chapter. This chapter does not establish a legal duty for employers to conduct alcohol or drug tests of employees or job applications. However, if an employee fails to maintain an alcohol and drug-free workplace program in accordance with the standards, procedures, and rules established in or under this chapter, the employer shall not qualify for the worker's compensation premium discount provided under section 3 of this act.

(2) An employer shall:

(a) Require job applicants to submit to a substance abuse test after extending an offer of employment and may use a refusal to submit or a verified positive test as a basis for not hiring the job applicant;

(b) Require an employee to submit to a substance abuse test if the employee has caused or contributed to an accident or injury which resulted in a loss of work time. A first-time verified test result cannot be used as a basis to terminate an employee's employment. However, an employee may be terminated for independent reasons, such as a violation of a safety rule or regulation;

(c) If the employee in the course of employment is referred to the employee assistance program by the employer as a result of a positive drug test or an alcohol or drug-related incident in violation of company rules, require the employee to submit to substance abuse testing as a follow-up to the program. However, if an employee voluntarily entered the employee assistance program, follow-up testing is not required. If follow-up testing is conducted, the frequency of the testing shall be at least four times a year for a two-year period after completion of the employee assistance program and advance notice of the testing date may not be given. A positive follow-up test result shall normally be used as a basis for termination of employment. If the employee assistance program determines that the employee does not require treatment services, the employee is still required to participate in follow-up testing.

(3) This section does not prohibit a private employer from conducting lawful reasonable suspicion or random testing of employees.

(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 the United States department of transportation regulations for alcohol testing.

(a) A specimen must be collected with due regard to the privacy of the individual providing the specimen and in a manner reasonably calculated to prevent substitution or contamination of the specimen.

(b) Specimen collection must be documented. The documentation procedures must include:

(i) Labeling of specimen containers so as to reasonably preclude the likelihood of erroneous identification of test results; and

(ii) An opportunity for the employee or job applicant to record information the employee or applicant considers relevant to the test, including identification of currently or recently used prescription or nonprescription medication or other relevant medical information. The providing of information does not preclude the administration of the test, but must be taken into account in interpreting positive confirmed results by the medical review officer.

(c) Specimen collection, storage, and transportation to the testing site must be performed in a manner that reasonably precludes specimen contamination or adulteration.

(d) An initial and confirmation test conducted under this section, not including the taking or collecting of a specimen to be tested, must be conducted by a laboratory as described in subsection (5) of this section.

(e) A specimen for a test may be taken or collected by any of the following persons:

(i) A physician, a physician's assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment;

(ii) A qualified person certified or employed by a laboratory certified by the substance abuse and mental health administration, the college of American pathologists, or the department; or

(iii) A qualified person certified or employed by a collection company using collection procedures adopted by the United States department of health and human services and the United States department of transportation for alcohol collection.

(f) Within five working days after receipt of a positive confirmed 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.

(g) The employer shall provide to the employee or job applicant, upon request, a copy of the test results.

(h) An initial test having a positive result must be verified by a confirmation test.

(i) An employer who performs drug testing or specimen collection shall use chain of custody procedures to ensure proper recordkeeping, handling, labeling, and identification of all specimens to be tested.

(j) An employer shall pay the cost of all drug tests, initial and confirmation, that the employer requires of employees.

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

(5)(a) A laboratory may not analyze initial or confirmation drug specimens unless:

(i) The laboratory is approved by the substance abuse and mental health administration or the college of American pathologists;

(ii) The laboratory has written procedures to ensure the chain of custody; and

(iii) The laboratory follows proper quality control procedures including, but not limited to:

(A) The use of internal quality controls including the use of samples of known concentrations that are used to check the performance and calibration of testing equipment, and periodic use of blind samples for overall accuracy;

(B) An internal review and certification process for test results, conducted by a person qualified to perform that function in the testing laboratory;

(D) Other necessary and proper actions taken to ensure reliable and accurate drug test results.

(b) A laboratory shall disclose to the employer a written test result report within seven working days after receipt of the sample. A laboratory report of a substance abuse test result must, at a minimum, state:

(i) The name and address of the laboratory that performed the test and the positive identification of the person tested;

(ii) Positive results on confirmation tests only, or negative results, as applicable;

(iii) A list of the drugs for which the drug analyses were conducted; and

(iv) The type of tests conducted for both initial and confirmation tests and the minimum cut-off levels of the tests.

A report may not disclose the presence or absence of a drug other than a specific drug and its metabolites listed under this chapter.

(c) A laboratory shall provide technical assistance through the use of a medical review officer to the employer, employee, or job applicant for the purpose of interpreting a positive confirmed test result that could have been caused by prescription or nonprescription medication taken by the employee or job applicant. The medical review officer shall interpret and evaluate the laboratory's positive test result and eliminates test results that could have been caused by prescription medication or other medically documented sources in accordance with the United States department of health and human services medical review officer manual.

(6) A positive initial test must be confirmed using the gas chromatography/mass spectrometry (GC/MC) method or an equivalent or more accurate scientifically accepted methods approved by the substance abuse and mental health administration as the technology becomes available in a cost-effective form.

NEW SECTION. Sec. 7. (1) The employee assistance program required under this chapter shall provide the employer with a system for dealing with employees whose job performances are declining due to unresolved problems, including alcohol or other drug-related problems, marital problems, or legal or financial problems.

(2) To ensure appropriate assessment and referral to treatment:

(a) The employer must notify the employees of the benefits and services of the employee assistance program;

(b) The employer shall publish notice of the employee assistance program in conspicuous places and explore alternative routine and reinforcing means of publicizing the services; and

(c) The employer shall provide the employee with notice of the policies and procedures regarding access to and utilization of the employee assistance program.

NEW SECTION. Sec. 8. (1)(a) Rehabilitation of employees suffering from either or both alcohol or drug addiction shall be the primary focus of an employee assistance program.

(b) The employer may not use a first-time verified positive test as the basis for termination of an employee. First-time verified positive test results may be used to offer employees the opportunity to keep their jobs through the use of a last-chance agreement. The last-chance agreements shall require an employee to:

(i) Submit to an employee assistance program evaluation for chemical dependency;

(ii) Comply with any treatment recommendations;

(iii) Be subject to follow-up testing for two years;

(iv) Meet the same standards of performance and conducts that are set for other employees; and

(v) Authorize the company to receive all relevant information regarding their progress in treatment, if applicable.

(2) When substance abuse treatment is necessary, employees must use treatment services certified by the department, which include a continuing care component lasting for two years.

(a) The employee assistance program shall monitor the employee's progress while in treatment.

(b) The employer shall monitor job performance and conduct follow-up testing.

(3) An employer may terminate an employee for the following reasons:

(a) Refusal to submit to a substance abuse test;

(b) Failure to comply with the conditions of a last-chance agreement;

(d) Violations of company rules pertaining to alcohol and drugs.

NEW SECTION. Sec. 9. An employer shall provide all employees with an annual education program on substance abuse, in general, and its effects on the workplace, specifically. An education program for a minimum of one hour should include but is not limited to the following information:

(1) The explanation of the disease model of addiction for alcohol and drugs;

(2) The effects and dangers of the commonly abused substances in the workplace; and

(3) The company's policies and procedures regarding substance abuse in the workplace and how employees who wish to obtain substance abuse treatment can do so.

NEW SECTION. Sec. 10. In addition to the education program provided in section 9 of this act, an employer shall provide all supervisory personnel with a minimum of two hours of supervisor training, that should include but is not limited to the following information:

(1) How to recognize signs of employee substance abuse;

(2) How to document and collaborate signs of employee substance abuse; and

(3) How to refer substance-abusing employees to the proper treatment providers.

NEW SECTION. Sec. 11. (1) A physician-patient relationship is not created between an employee or job applicant and an employer, medical review officer, or person performing or evaluating a drug test solely by the establishment, implementation, or administration of a testing program.

(2) This chapter may not be construed to prevent an employer from establishing reasonable work rules related to employee possession, use, sale, or solicitation of drugs, including convictions for drug-related offenses, and taking action based upon a violation of any of those rules.

(3) This chapter may not be construed to operate retroactively. This chapter does not abrogate the right of an employer under state or federal law to conduct tests or implement employee testing programs. However, only those programs that meet the criteria outlined in this chapter qualify for reduced workers' compensation insurance premiums.

(4) This chapter may not be construed to prohibit an employer from conducting medical screening or other tests required, permitted, or not disallowed by a statute or rule for the purpose of monitoring exposure of employees to toxic or other unhealthy materials in the workplace or in the performance of job responsibilities. The screening or tests must be limited to the specific material expressly identified in the statute or rule, unless prior written consent of the employee is obtained for other tests.

(5) A cause of action may not arise in favor of a person based upon the failure of an employer to establish or conduct a program or policy for substance abuse testing.

NEW SECTION. Sec. 12. (1) Information, interviews, reports, statements, memoranda, and test results, written or otherwise, received by the employer through a substance abuse testing program are confidential communications, but may be used or received in evidence, obtained in discovery, or disclosed in a civil or administrative proceeding, except as provided in subsection (4) of this section.

(2) An employer, laboratory, medical review officer, employee assistance program, drug or alcohol rehabilitation program, and their agents who receive or have access to information concerning test results shall keep the information confidential. Release of the information under another circumstance must be solely under a written consent form signed voluntarily by the person tested, unless the release is compelled by an agency of the state or a court of competent jurisdiction or unless deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. The consent form must contain at a minimum:

(a) The name of the person who is authorized to obtain the information;

(b) The purpose of the disclosure;

(d) The duration of the consent; and

(e) The signature of the person authorizing release of the information.

(3) Information on test results may not be released or used in a criminal proceeding against the employee or job applicant. Information released contrary to this subsection is inadmissible as evidence in a criminal proceeding.

(4) This chapter may not be construed to prohibit the employer or laboratory conducting a test from having access to employee test information when consulting with legal counsel when the information is relevant to its defense in a civil or administrative matter.

NEW SECTION. Sec. 13. The department shall adopt by rule procedures and forms for the certification of employers who establish and maintain a drug-free workplace that complies with this chapter. The department shall adopt by rule procedures for the decertification of employers formally certified for the discount provided under this chapter. The department may charge a fee for the certification of a drug-free workplace program in an amount that must approximate its administrative costs related to the certification. Certification of an employer is required for each year in which a premium discount is granted. The department may adopt rules necessary for the implementation of this chapter.

NEW SECTION. Sec. 14. Sections 1 through 13 of this act shall constitute a new chapter in Title 49 RCW.

NEW SECTION. Sec. 15. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.