SENATE BILL REPORT
ESHB 1876
BYHouse Committee on Commerce & Labor (originally sponsored by Representatives Wang, Patrick, R. King and Walker)
Limiting drug and alcohol testing.
House Committe on Commerce & Labor
Senate Committee on Law & Justice
Senate Hearing Date(s):
Senate Staff:Lidia Mori (786-7418)
AS OF FEBRUARY 19, 1988
BACKGROUND:
Washington statutes do not prohibit or regulate drug testing by employers or licensing agencies. The use of drug tests in the workplace has raised issues concerning job performance, workplace safety and protecting the right to privacy.
SUMMARY:
A public or private employer or governmental licensing agency may not request or require an employee, licensee or job applicant to undergo alcohol or drug testing unless the requirements of the act for such testing are met. Tests on samples of breath to determine blood alcohol levels are excluded from the act.
Except under specified circumstances, an employer or licensing agency may not request or require drug or alcohol testing unless the employer or agency has a reasonable suspicion arising from observable behavior that the employee or licensee is under the influence of drugs or alcohol in the course of employment.
Applicants for employment or licensing may not be requested or required to undergo drug or alcohol testing or a physical examination with drug or alcohol testing unless the same test is required of all applicants who are finalists for employment in the same position. Notice of the drug or alcohol testing requirement must be contained in any advertising soliciting applicants or in the application for employment. Personal notice is required during the first direct contact with the applicant.
Random or mandatory testing is prohibited except for: (1) an employee or licensee who has had a confirmed positive test and who chooses not to participate in a rehabilitation program or who returns to work during or after rehabilitation; (2) an employee or licensee who is undergoing rehabilitation, if testing is requested or required by the treatment provider. The results of tests administered during a treatment program may not be released to the employer or licensing agency; (3) drug or alcohol testing conducted as part of a routine annual comprehensive medical evaluation with at least two days notice to the employee or licensee; and (4) an employee or licensee who is involved in a significant work-related accident. Accident testing must be reported to the Department of Labor and Industries for a report to the Legislature in 1992.
Certain employments are required to comply with the act only to the extent that the act is not inconsistent with the applicable federal law. These employments include those in which the specific work performed requires the employees or licensees to be subject to drug or alcohol testing under federal regulations or policy, including federally regulated facilities and the nuclear power industry, or federal contracts requiring testing for security, safety or protection of sensitive data. An exemption is provided for substance abuse monitoring programs conducted by the disciplinary boards for health care professionals, for law enforcement personnel who enforce the Controlled Substances Act and for testing under a court order.
Before an employer or agency may implement a drug or alcohol testing program, a testing policy must be written, in consultation with the employees. For programs involving employees or licensees, the employer or agency must provide access to an employee assistance program. The written policy must include: (a) procedures and consequences of a voluntary admission of a substance abuse problem; (b) the employees, licensees or applicants subject to testing; (c) the circumstances under which testing is required; (d) the right to refuse the test and the consequences of refusal; (e) any adverse personnel action that may be taken on a confirmed positive test; (f) the right to explain the results of a test and pay for a confirmatory retest; (g) requirements for the collection of samples, including a prohibition against direct or indirect observation for urine samples, except by medical personnel of the respective sex of the person being testing, and chain of custody procedures; (h) the drugs or metabolites for which tests will be conducted; (i) an explanation of the right to obtain other samples; (j) the threshold levels for positive tests; (k) the opportunities for rehabilitation; and (l) appeal procedures.
The employer or agency is required to provide notice of the drug or alcohol testing policy to affected employees. The employer or agency may not request or require the signing of a form attempting to waive the employee, licensee or applicant's rights or to diminish an employer's or agency's obligations.
Any drug or alcohol test must be performed in a laboratory qualified under federal regulations to receive medicare reimbursement, and, after January 1, 1991, in a laboratory certified or accredited by nationally recognized accrediting program for forensic toxicology. A laboratory may report a test as positive only if both the initial screening test and the confirmation test are positive.
Before an employee, licensee or applicant is subjected to a drug or alcohol test, the employee, licensee or applicant must be given the opportunity to provide any information concerning medications taken or other factors that might affect the outcome of the test. The information may not be revealed to the employer or agency. Procedures for requesting a confirmatory retest are specified.
An employer may not take adverse personnel action against an employee nor may a licensing agency withdraw licensure on the basis of a screening test that has not been verified by a confirmation test. An employer or agency may not take disciplinary action solely on the basis of the first positive test unless the employee or licensee is offered the opportunity for rehabilitation, except for suspension of the employee or licensee under specified circumstances. The tested employee or licensee may be temporarily suspended or transferred pending the outcome of the test if reasonably necessary to protect the health or safety of the employee or the public. Suspension may also be required while the employee or licensee is in rehabilitation if the program determines that the person is unfit to return to regular employment. Employers or licensing agencies are not prohibited from establishing rules related to possession or use of drugs or alcohol nor from taking disciplinary action based on violation of these rules or impairment because of drugs or alcohol.
Employers and licensing agencies are responsible for insuring that the records of test results only show information regarding chemical substances likely to affect the ability of the employee or licensure to perform his or her job. Tests results are private and confidential information that may not be disclosed by the employer, licensing agency or laboratory without consent. Test results may not be received in evidence or obtained in discovery except in judicial proceedings related to the testing, as required under federal law or to a substance abuse treatment program. The test results may be recorded in personnel records. However, positive results must be expunged if the employee has successfully completed rehabilitation.
In a civil action to enforce the act, a court may award, in addition to actual damages, reinstatement of the employee or licensee and attorneys' fees and costs. For reckless or intentional violations, a court may award a penalty to the employee, licensee or applicant of twice any lost wages or $500, whichever is greater. The prevailing party may be awarded attorney fees and costs for a frivolous law suit. A cause of action may not be based on: (a) failure of an employer to establish a drug or alcohol testing program; (b) failure to test for certain substances or diseases; (c) failure to take disciplinary action based on a positive test result or knowledge of a person's participation in rehabilitation; or (d) termination of a testing program. Any civil action must be brought within six months of the alleged violation.
An employee or licensee may not be considered "handicapped" solely on the basis of a positive test or because of participation in rehabilitation.
Collective bargaining agreements may contain provisions with greater employee protections.
Employees or licensees may not be discriminated against for filing a complaint or testifying in an action involving violations of the act.
The act terminates January 1, 1993.
Appropriation: none
Revenue: none
Fiscal Note: none requested