AN ACT Relating to
providing for drug-free workplaces; adding a new chapter to Title 49 RCW; and
providing an expiration date.
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 specimens for the purpose of
maintaining control and accountability from initial collection to final
disposition for all specimens and providing for accountability at each stage in
handling, testing, and storing specimens 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) "Confirmation
test" or "confirmed test" means a second analytical procedure
used to identify the presence of a specific drug or metabolic in a specimen.
Drug tests must be confirmed as specified in section 6(5) of this act. Alcohol
tests must be confirmed by a second breath test or as specified for drug tests.
(6)
"Department" means the department of social and health services.
(7) "Drug"
means amphetamines, cannabinoids, cocaine, phencyclidine (PCP), methadone,
methaqualone, opiates, barbiturates, benzodiazepines, propoxyphene, or a
metabolite of any such substances.
(8) "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.
(9)
"Employee" means a person who is employed for salary, wages, or other
remuneration by an employer.
(10) "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.
(11) "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; or any municipal corporation.
(12) "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.
(13) "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.
(14) "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.
(15) "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.
(16) "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.
(17)
"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.
(18) "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.
(19)
"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.
(20)
"Specimen" means breath or urine. "Specimen" may include
other products of the human body capable of revealing the presence of drugs or
their metabolites or of alcohol, if approved by the United States department of
health and human services and permitted by rules adopted under section 13 of
this act.
(21)
"Substance" means drugs or alcohol.
(22) "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 or of alcohol
within the sample.
(23) "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
confirmation 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.
(24) "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.
(25) "Workers'
compensation premium" means the medical aid fund premium and the accident
fund premium under Title 51 RCW.
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 workers' compensation premium discount under Title
51 RCW if the employer:
(a) Is certified by the
division of alcohol and substance abuse of the department as provided in
section 13 of this act. The employer must maintain an alcohol and drug-free
workplace program in accordance with the standards, procedures, and rules
established in or under this chapter. If the employer fails to maintain the
program as required, the employer shall not qualify for the premium discount
provided under this section;
(b) Is in good standing
and remains in good standing with the department of labor and industries with
respect to the employer's workers' compensation premium obligations and any
other premiums and assessments under Title 51 RCW; and
(c) Has medical
insurance available to its full-time employees through an employer, union, or
jointly sponsored medical plan.
(2) The premium
discount must remain in effect as long as the employer is certified under
section 13 of this act, up to a maximum of three years from the date of initial
certification.
(3) A certified
employer may discontinue operating a drug-free workplace program at any time.
The qualification for a premium discount shall expire in accordance with
decertification rules adopted by the department under section 13 of this act.
(4) An employer whose
substance abuse testing program reasonably meets, as of July 1, 1996, the
requirements for the premium discount provided in this section is not 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 premium discounts from the department of labor and industries under
more than one premium discount program. 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 only entitled to the premium discount
that is the highest.
(7) The department of
labor and industries will notify self-insured employers of the value of
drug-free workplace programs and encourage them to implement programs that are
in accord with section 4 of this act.
NEW SECTION. Sec.
4. (1) A drug-free workplace
program established under this chapter must contain all of the following
elements:
(a) A written policy
statement in compliance with section 5 of this act;
(b) Substance abuse
testing in compliance with section 6 of this act;
(c) An employee
assistance program in compliance with section 7 of this act;
(d) Employee education
in compliance with section 9 of this act; and
(e) Supervisor training
in compliance with section 10 of this act.
(2) In addition to the
requirements of subsection (1) of this section, a drug-free workplace program
established under this chapter 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 established under this chapter 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 test result
may contest or explain the result to the employer within five working days
after receiving written notification of the positive test result;
(j) Contain a statement
informing an employee of the provisions of the federal drug-free workplace act,
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, 1996, 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, 1996, is not required to provide a sixty-day
notice period.
(3) An employer shall
include notice of substance abuse testing to all job 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) In conducting
substance abuse testing under this chapter, the employer must comply with the
standards and procedures established in this chapter and all applicable rules
adopted by the department under this chapter and must:
(a) 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;
(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 section 10 of this act, 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 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) If the employee in
the course of employment is referred to the employee assistance program by the
employer as a result of a verified positive drug or alcohol test or an alcohol
or drug-related incident in violation of employer 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 must 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
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 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.
(3) 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(7) 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 (4) 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 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.
(4)(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;
(C) Security measures
implemented by the testing laboratory to preclude adulteration of specimens and
test results; and
(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 threshold detection
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
eliminate 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.
(5) A positive initial
drug test must be confirmed using the gas chromatography/mass spectrometry
method or an equivalent or more accurate scientifically accepted method
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 use 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 verified 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 agreement 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 conduct that are set for other employees; and
(v) Authorize the
employer to receive all relevant information regarding the employee's progress
in treatment, if applicable.
Failure to comply with
all the terms of this agreement normally will result in termination of
employment.
(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 employer 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;
(c) A second verified
positive drug or alcohol test result; or
(d) After the first
verified positive drug or alcohol test, any violation of employer rules
pertaining to alcohol and drugs.
(4) Nothing in this
chapter limits the right of any employer who participates in the worker's
compensation premium discount program under this chapter to terminate
employment for any other reason.
NEW SECTION. Sec.
9. As part of a program
established under this chapter, 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 difficulty
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 employer'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 or
alcohol test solely by the establishment, implementation, or administration of
a drug or alcohol 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 drug or alcohol
tests or implement employee drug or alcohol testing programs. However, only
those programs that meet the criteria outlined in this chapter qualify for
workers' compensation insurance premiums discounts.
(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 testing for the specific material
expressly identified in the statute or rule, unless prior written consent of
the employee is obtained for other tests.
(5) This chapter does not
establish a legal duty for employers to conduct alcohol or drug tests of
employees or job applicants. 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 premium discount
provided in section 3 of this act.
NEW SECTION. Sec.
12. Confidentiality standards
that apply to substance abuse testing programs implemented under this chapter
include the following:
(1) Information,
interviews, reports, statements, memoranda, and test results, written or
otherwise, received 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;
(c) The precise
information to be disclosed;
(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 job applicant's substance abuse
test results 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 job 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 workers' compensation premium 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 any other 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 appropriate committees
of the legislature on September 1 of 1997 and 1998 and shall issue a
comprehensive final report on December 1, 1999.
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 1997 and 1998 and shall issue a
comprehensive final report on December 1, 1999.
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 dollars 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.
