5516-S

AN ACT Relating to providing for drug-free workplaces; adding a new chapter to Title 49 RCW; providing an expiration date; 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 to improve the safety of the workplace, protect the health of workers, and afford employers in this state 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) "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) "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.

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

(5) "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.

(6) "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. Alcohol tests may be confirmed by a second breath test.

(7) "Department" means the department of social and health services.

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

(9) "Drug 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 within an individual's body systems.

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

(11) "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; and supervisory training.

(12) "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 or municipal corporation.

(13) "Initial test" means a sensitive, rapid, and reliable procedure to identify negative and presumptive positive specimens. An initial drug 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.

(14) "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.

(15) "Job applicant" means a person who has applied for a position 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.

(16) "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.

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

(18) "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.

(19) "Prescription medication" means a drug or medication lawfully prescribed by a physician, or other health care provider licensed to prescribe medication, for an individual and taken in accordance with the prescription.

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

(21) "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.

(22) "Substance" means drugs or alcohol.

(23) "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.

(24) "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.

(25) "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. (1) An employer, except an employer that is self-insured for the purposes of Title 51 RCW, implementing a drug-free workplace program in accordance with section 4 of this act, shall qualify for a five percent premium discount under the employer's workers' compensation insurance policy as provided under chapter 51.16 RCW upon certification by the division of alcohol and substance abuse of the department as provided in section 13 of this act. A self-insured employer shall implement a drug-free workplace program in accordance with section 4 of this act.

(2) The premium discount must remain in effect for three years from the date of certification.

(3) A certified employer may stop operating a drug-free workplace program at any time. The qualification for a discount shall expire in accordance with decertification rules adopted by the department under section 13 of this act.

(4) Employers who meet, as of July 1, 1995, all of the requirements for the discount provided in this section are not eligible for certification. Employers who meet, as of July 1, 1995, some, but not all, of the requirements for the discount provided in this section may, upon subsequent compliance with the requirements, be eligible for certification.

(5) Nothing in this chapter creates or alters an obligation on the part of an employer seeking to participate in this program to bargain with a collective bargaining representative of its employees.

(6) An employer may not receive more than one premium discount from the department of labor and industries. An employer participating in and meeting all of the requirements for the discount provided in this section and also participating in another premium discount program offered by the department of labor and industries is entitled to whichever premium discount is the highest.

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

(a) 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 any influence of alcohol during working hours is prohibited;

(b) Notify employees that the use, purchase, possession, or transfer of drugs or having illegal drugs in their system is prohibited and that prescription or nonprescription medications are not prohibited when taken in accordance with a lawful prescription or consistent with standard dosage recommendations;

(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;

(i) Contain a statement that an employee or job applicant who receives a verified 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;

(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; and

(k) Notify employees that the employer may discipline an employee for failure to report an injury in the workplace.

(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 to all applicants. 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. An employer with employees or job applicants who have trouble communicating in English shall make reasonable efforts to help the employees understand the policy statement.

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 applicants. However, if an employer 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 workers' compensation premium discount provided under section 3 of this act.

(2) To qualify for the discount under section 3 of this act, an employer shall:

(a) Be in good standing and remain in good standing with the department of labor and industries with respect to the employer's workers' compensation premium obligations;

(b) Require job applicants to submit to a drug test after extending an 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;

(c) Investigate each 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 off-site medical attention. Under this chapter, 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;

(d) 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 or alcohol test or an alcohol or drug-related incident in violation of company rules, require the employee 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 is still 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 company rule, 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 rehabilitation program and advance notice of the testing date may not be given. A positive follow-up test result shall normally require termination of employment.

(3) This section does not prohibit a private employer from conducting other drug or alcohol testing, such as upon reasonable suspicion or a random basis.

(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 and drug testing and must include testing for marijuana, cocaine, amphetamines, opiates, and phencyclidine. Employers may test for any drug listed in section 2(8) of this act.

(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 and analysis 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 provide to a medical review officer information the employee or applicant considers relevant to the drug test, including identification of currently or recently used prescription or nonprescription medication or other relevant medical information.

(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 or the college of American pathologists; 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 verified 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 or alcohol 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 drug 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 drug 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 drug 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.

(3) A list of approved employee assistance programs must be provided by the department according to recognized program standards.

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

(b) Under any program under this chapter, the employer may not use a first-time verified positive drug or alcohol test as the basis for termination of an employee. After a first-time positive test result, the employee must be given an opportunity to keep his or her job 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 drug and alcohol 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 approved 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, including the two-year continuing care component, and notify the company when an employee is not complying with the programs's treatment recommendations.

(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 drug or alcohol test;

(b) Refusal to agree to or failure to comply with the conditions of a last-chance agreement;

(d) After the first verified positive drug or alcohol test, any violation of company rules pertaining to alcohol and drugs.

(4) Nothing in this chapter limits the ability of any employer who participates in the worker's compensation discount program under this chapter to terminate employment for any other reason.

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 employer with employees who have trouble communicating in English shall make reasonable efforts to help the employees understand the substance of the education program. 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;

(3) How to refer employees to the employee assistance program or proper treatment providers; and

(4) Circumstances and procedures for postinjury testing.

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 or to conduct a program or policy in conformance with the standards and procedures established in this chapter. This chapter does not create individual rights of action and may be enforced only by the department by denial of the workers' compensation discount benefit identified in section 3 of this act.

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, and may not be used or received in evidence, obtained in discovery, or disclosed in a civil or administrative proceeding, except as provided in subsection (5) 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, except as provided in subsection (5) of this section.

(3) Any release of the information must be pursuant to a written consent form that complies with RCW 70.02.030 and is signed voluntarily by the person tested, unless the release is compelled by the division of alcohol and substance abuse of the department or a court of competent jurisdiction in accordance with state and federal confidentiality laws, or unless required by a professional or occupational licensing board in a related disciplinary proceeding. Any disclosure by any agency approved by the department must be in accordance with RCW 70.96A.150. 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.

(4) 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.

(5) Nothing in this chapter prohibits:

(a) An employer from using information concerning an employee or applicant's substance abuse test in a lawful manner with respect to that employee or applicant; or

(b) An entity that obtains the information from disclosing or using the information in a lawful manner as part of a matter relating to the substance abuse test, the test result, or an employer action with respect to the applicant or employee.

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. (1) The department of labor and industries may adopt rules necessary for the implementation of this chapter including but not limited to provisions for penalties and repayment of premium discounts by employers that are decertified by the department of social and health services under section 13 of this act.

(2) The department of labor and industries shall conduct an evaluation of the effect of the premium discount provided for under section 3 of this act on workplace safety and the state of Washington industrial insurance fund. The department of labor and industries shall report its preliminary findings to the legislature on September 1 of 1996 and 1997 and shall issue a comprehensive final report on December 1, 1998.

NEW SECTION. Sec. 15. The department shall conduct an evaluation to determine the costs and benefits of the program under this chapter. If the department contracts for the performance of any or all of the evaluation, no more than ten percent of the contract amount may be used to cover indirect expenses. The department shall report its preliminary findings to the legislature on September 1 of 1996 and 1997 and shall issue a comprehensive final report on December 1, 1998.

NEW SECTION. Sec. 16. Notwithstanding any other provisions of this chapter, the total premium discounts available under section 3 of this act shall not exceed five million during any fiscal year.

NEW SECTION. Sec. 17. Sections 1 through 16 of this act shall constitute a new chapter in Title 49 RCW.

NEW SECTION. Sec. 18. Sections 1 through 16 of this act shall expire January 1, 2001.