BILL REQ. #: H-3580.3
| State of Washington | 62nd Legislature | 2012 Regular Session |
Read first time 01/19/12. Referred to Committee on Labor & Workforce Development.
AN ACT Relating to mandatory drug testing of law enforcement agency and fire department employees; and adding new sections to chapter 43.101 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature recognizes the difficulty,
challenge, and danger of those who work for law enforcement agencies
and fire departments, the jeopardy to public safety posed by officers
and employees of law enforcement agencies and fire departments who are
impaired by drugs, and the importance of statewide safety standards.
State and local communities go to great lengths and expense to hire,
train, and equip officers and employees of law enforcement agencies and
fire departments.
Officers and employees of law enforcement agencies and fire
departments often face extreme hazards and life-threatening
circumstances while protecting and serving the public. Law enforcement
officers and firefighters are critically important to public safety,
and their well-being is vital. Due to the special nature of their
work, law enforcement officers and firefighters are exposed to higher
incidents of stress, danger, hostility, and risk, which can and does
impact their physical and mental well-being.
Because law enforcement officers and firefighters have the right to
drive at high speeds on crowded streets, and peace officers have the
right to use deadly force, it is critical that they are always capable
of performing at peak levels of productivity and health. An impaired
law enforcement officer or firefighter creates a direct threat to the
public safety and drug use by law enforcement officers, firefighters,
and other employees of their agencies severely undermines the integrity
of law enforcement agencies and fire departments and undermines the
public's trust and confidence in their officers and employees.
It is the intent of the legislature to establish statewide safety
standards to best ensure that officers and employees of law enforcement
agencies and fire departments are not impaired by a chemical
dependency, substance addiction, or illegal drug use that would
adversely affect the officer's or employee's ability to do his or her
job safely. Therefore, this act requires all peace officers,
firefighters, and other employees and officers of law enforcement
agencies and fire departments to submit to mandatory drug testing
immediately after their involvement in any traffic collision, shooting
incident, or other situation involving injury or harm to persons
occurring during the performance of their duties, and random drug
testing.
NEW SECTION. Sec. 2 Unless the context clearly requires
otherwise, the definitions in this section apply throughout this
chapter.
(1) "Confirmation test" means a second analytical procedure to
identify the presence of a specific controlled substance or controlled
substance metabolite which is independent of the screen test and which
uses a different technique and chemical principle from that of the
screen test in order to ensure reliability and accuracy.
(2) "Drug" means any controlled substance subject to testing
pursuant to drug testing regulations adopted by the United States
department of transportation.
(3) "Drug test" means a method for determining the presence of a
drug in a specimen using a scientifically reliable method performed in
accordance with regulations governing drug testing adopted by the
United States department of transportation.
(4) "Medical review officer" means a licensed physician who:
(a) Has knowledge of substance abuse disorders, laboratory testing
procedures, and chain of custody collection procedures;
(b) Verifies positive, confirmed test results; and
(c) Has the necessary medical training to interpret and evaluate a
peace officer's, firefighter's, or employee's positive test result in
relation to the peace officer's, firefighter's, or employee's medical
history and any other relevant biomedical information.
(5) "Peace officer" means a general authority Washington peace
officer as defined by RCW 10.93.020(3) and reserve peace officers. For
purposes of this chapter, a reserve peace officer is an individual who
is an officer of a Washington law enforcement agency who does not serve
such agency on a compensated or full-time basis but who, when called by
the agency into active service, is fully commissioned on the same basis
as a general authority Washington peace officer to enforce the criminal
laws of the state.
(6) "Random selection method" means a mechanism for the selection
of an individual which results in an equal probability that any person
from the group of individuals subject to the selection mechanism will
be selected.
(7) "Shooting" means the discharge of a firearm by a peace officer
in the performance of his or her duties resulting in death or injury to
any human being.
(8) "Specimen" means tissue, fluid, or a product of the human body
capable of revealing the presence of drugs or their metabolites.
(9) "Traffic collision" means an occurrence associated with the
operation of a motor vehicle if, as a result, any individual suffers or
complains of bodily injury.
NEW SECTION. Sec. 3 A city, county, town, port district, or any
other taxing district shall perform (1) mandatory drug testing for an
employee and officer of any law enforcement agency or fire department
within its jurisdiction as soon as reasonably practicable after a
traffic collision, shooting incident, or other incident involving
injury or harm to persons occurring during the performance of the
employee's or officer's duties, and (2) random drug testing for all
peace officers, firefighters, and employees employed by the agency.
NEW SECTION. Sec. 4 Random peace officer, firefighter, and
employee drug testing imposed pursuant to section 3 of this act shall
conform to the following:
(1) At least thirty percent of the average number of peace
officers, firefighters, and employees employed by the taxing district's
law enforcement agency or fire department shall undergo random drug
testing by the agency each calendar year;
(2) Peace officers, firefighters, and employees who are notified of
selection for random drug testing shall proceed to the test site
immediately;
(3) Random drug testing shall occur during, or immediately before
or after, a regular work period;
(4) The selection of peace officers, firefighters, and employees
for random drug testing shall be made by a random selection method; and
(5) Random drug testing shall be unannounced and the dates for
administering the tests shall be spread reasonably throughout the
calendar year.
NEW SECTION. Sec. 5 Peace officer drug testing after a shooting
imposed pursuant to section 3 of this act shall require that a peace
officer who discharges a firearm in the performance of his or her
duties resulting in death or injury to any human being shall submit to
a drug test as soon as practicable following the discharge.
NEW SECTION. Sec. 6 Posttraffic collision drug testing imposed
pursuant to section 3 of this act shall require that a peace officer,
firefighter, or other employee or officer of a law enforcement agency
or fire department, who is operating a motor vehicle involved in a
traffic collision shall submit to a drug test as soon as practicable
following the traffic collision.
NEW SECTION. Sec. 7 Drug testing imposed pursuant to section 3
of this act after any incident involving substantial bodily harm as
defined in RCW 9A.04.110 occurring during the performance of the
employee's or officer's duties shall require that a peace officer,
firefighter, or other employee or officer of the law enforcement agency
or fire department, who is involved in the incident, shall submit to a
drug test as soon as reasonably practicable after the incident.
NEW SECTION. Sec. 8 Drug testing pursuant to this act shall be
carried out within the terms of a written policy consistent with this
act that has been distributed to all peace officers, firefighters, and
other employees of the law enforcement agency or fire department,
subject to the policy. The written policy shall include at least the
following:
(1) A description of those persons who are subject to testing;
(2) The circumstances under which testing will be required;
(3) A description of the testing methods and collection procedures
to be used;
(4) The consequences of a refusal to participate in the testing;
(5) The right of a peace officer, firefighter, or other employee or
officer, on request, to obtain the written test results;
(6) The right of a peace officer, firefighter, or other employee or
officer, on request, to explain in a confidential setting a positive
test result; and
(7) A statement of the law enforcement agency's or fire
department's policy regarding the confidentiality of the test results.
NEW SECTION. Sec. 9 All specimen collection and testing pursuant
to this act shall be performed in accordance with the following:
(1) A specimen shall 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;
(2) Specimen collection shall be documented, and the documentation
procedures shall include labeling of specimen containers so as to
reasonably preclude the likelihood of erroneous identification of test
results;
(3) Specimen storage and transportation to the place of testing
shall be performed in a manner that reasonably precludes the
probability of sample misidentification, contamination, and
adulteration;
(4) Specimen testing shall conform to scientifically accepted
analytical methods and procedures;
(5) Specimen testing shall be conducted at a laboratory approved or
certified by the United States department of health and human services;
(6) Before the result of a positive initial screening may be used
as a basis for any action by a law enforcement agency or fire
department, the law enforcement agency or fire department shall verify
or confirm the positive initial screening test by a confirmation test;
(7) Laboratory analyses required by this act shall be restricted to
those tests required by this act to detect drugs. They shall not be
used for other purposes such as the analysis of physiological states or
diseases;
(8) Prior to reporting a positive test result, the medical review
officer shall give the peace officer, firefighter, or other employee or
officer of the law enforcement agency or fire department, an
opportunity to discuss the test result, including providing
verification of any prescription medications. If the employee or
officer meets with the medical review officer and fails to present
information affecting the test result or if the employee or officer
refuses to meet with the medical review officer, the medical review
officer will verify a positive test result and will inform the law
enforcement agency or fire department on a confidential basis that the
employee or officer tested positive;
(9) Within five working days after its receipt of a positive
confirmed test result from the laboratory, the law enforcement agency
or fire department shall inform the employee or officer in writing of
the positive test result. The law enforcement agency or fire
department shall provide to the employee or officer, upon request, a
copy of the test results; and
(10) If the employee or officer meets with the medical review
officer and fails to present information affecting a positive test
result, the medical review officer will inform the employee or officer
that he or she may request split specimen testing. For purposes of
this section, "split specimen testing" means that an employee who
wishes to challenge a positive drug test must notify the medical review
officer that he or she wishes split specimen testing within seventy-two
hours after he or she is notified of a positive test result, and the
test of the second specimen must be processed at a different laboratory
than the laboratory that tested the primary specimen.
NEW SECTION. Sec. 10 (1) No cause of action is or may be
established against a law enforcement agency or fire department that
has established a program of drug testing in accordance with this act
unless the law enforcement agency's or fire department's action was
based on a false positive drug test result and the law enforcement
agency or fire department knew or clearly should have known that the
result was in error and ignored the true test result because of
reckless or malicious disregard for the truth.
(2) In any claim, including a claim under this act, if it is
alleged that a law enforcement agency's or fire department's action was
based on a false positive test result, there is a rebuttable
presumption that the test result was valid if the law enforcement
agency or fire department complied with the provisions of this act; and
the law enforcement agency or fire department is not liable for
monetary damages if its reliance on a false positive test result was
reasonable and in good faith.
NEW SECTION. Sec. 11 The drug test results obtained pursuant to
this act shall be treated as sensitive information and shall be
released only to persons within the agency who have senior
administrative personnel authority and to their immediate staff. All
drug test results shall be maintained by the law enforcement agency or
fire department in a secure location with controlled access and
separate from other files containing personnel information. No
evidence derived from a positive test result pursuant to this act shall
be admissible in a criminal prosecution concerning unlawful possession,
sale, or distribution of controlled substances.
NEW SECTION. Sec. 12 Nothing in this act shall prohibit law
enforcement agencies or fire departments from conducting any lawful
testing of employees or officers that is in addition to the minimum
testing in this act.
NEW SECTION. Sec. 13 Sections 1 through 12 of this act are each
added to chapter