HOUSE BILL REPORT

HB 1063

BYRepresentatives R. King,  Cole, Sayan, Fisher and Wang

Regulating drug testing by employers and licensing agencies.

House Committe on Commerce & Labor

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  (7)

      Signed by Representatives Wang, Chair; Cole, Vice Chair; Fisch, Fisher, R. King, O'Brien and Sayan.

Minority Report:  Do not pass.  (4)

      Signed by Representatives Patrick, Sanders, C. Smith and Walker.

House Staff:Chris Cordes (786-7117)

AS REPORTED BY COMMITTEE ON COMMERCE & LABOR MARCH 4, 1987

BACKGROUND:

Washington statutes do not prohibit or regulate drug testing of employees by employers.  The use of drug tests by employers has raised issues concerning job performance, workplace safety and protecting the right to privacy.

SUMMARY:

SUBSTITUTE BILL:  No employer or governmental licensing agency may require, directly or indirectly, that an employee or licensee or prospective employee or licensee take a drug test as a condition of employment or licensing, except as provided under the act.  The act applies to both public and private sector employers and to any governmental licensing agency with respect to persons licensed to engage in an occupation or profession in the state.  A "drug test" is any blood, urine, or other test designed to identify the presence of chemical substances in the body.

An employer or licensing agency may require a drug test if the employer or licensing agency has reasonable grounds to believe that the employee's or licensee's work performance is impaired because of the unauthorized presence of chemical substances in the body.

Employees or licensing agencies conducting drug tests under the act must:

(1)  prepare a prior written statement of the grounds for the test;

(2)  use a testing procedure that measures the quantity of unauthorized chemical substance present in the body that may affect safe work performance and, in light of current technology, does not produce an unreasonable percentage of percent false positives;

(3)  establish chain of custody procedures for the sample to be tested;

(4)  provide the employee or licensee with the opportunity for independent verification, at the employer's or licensing agency's expense;

(5)  provide a reasonable opportunity for rebuttal of the test results;  and

(6)  take no adverse action based on the test unless scientifically based standards correlate the quantity of the chemical substance present with impairment of the ability to perform work safely.

The employer or licensing agency must ensure, to the extent feasible, that:  (1)  records only show or make use of information regarding those chemical substances that are likely to affect work performance; and (2)  the test results remain confidential, unless disclosure is required in an action challenging any adverse employment or licensing decision based on the results.

Except for the provisions related to drug testing, the act does not add to or detract from an employer's ability to establish job performance standards or a licensing agency's authority to establish licensing standards or issue licenses.  With the express written consent of an affected employee, an employer may conduct medical screening to monitor toxic exposure in the workplace.

Statutory or common law rights to bring a civil action for violations of the act are preserved.  In a civil action brought to enforce the act, the employer or licensing agency has the burden of proving that the requirements for drug testing under the act have been met.  In such an action, the court must:  (1)  award against an employer or licensing agency that intentionally or recklessly violated the act a penalty of $500 to a prevailing employee or licensee, or prospective employee or licensee, in addition to actual damages;  (2)  award reasonable attorneys' fees and costs to the prevailing employee or licensee, or prospective employee or licensee; and (3)  award any prevailing party, against whom an action has been brought to enforce the act, reasonable expenses and attorneys' fees if the court finds the action frivolous.

If any provision of the act is held invalid, the remainder of the act is not affected.

SUBSTITUTE BILL COMPARED TO ORIGINAL:  The drug testing permitted under the act is changed from "urine test" to any "blood, urine or other test" as defined in the act.  It is clarified that the permitted drug test is one that identifies the "unauthorized" presence of the chemical substance in the body.  The requirement that the testing procedure not produce more than one percent false positives is changed to require that the test does not produce an unreasonable percentage of false positives in light of current technology.

The requirement is deleted that an employee be in a position where impairment presents a danger to the physical safety of the employee or others in order to permit testing.

The misdemeanor penalty for employers violating the act is deleted. The section providing that the act is not to be construed as limiting statutory or common law remedies is moved to another section of the bill.

The $500 penalty for employers who violate the act is applicable only if the employer commits an intentional or reckless violation.

Fiscal Note:      Not Requested.

House Committee ‑ Testified For:    Jon Rosen; Robert Frazier, University of Washington, Department of Neurosurgery; Chuck Bailey, Washington State Labor Council; Robert Ball, Washington State Nurses Association; Jeff Larson, Washington Assembly for Citizens with Disabilities.

House Committee - Testified Against:      None Presented.

House Committee - Testimony For:    To protect privacy rights and civil liberties of all citizens, there should be strict standards for employers and licensing agencies who require drug testing in the workplace.

House Committee - Testimony Against:      None Presented.