AN ACT Relating to testing by employers and licensing agencies; adding a new chapter to Title 49 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature hereby declares that it is the policy of the state that, in accordance with Article I, section 7 of the state Constitution, all persons have a right to personal privacy that extends to the work place.

NEW SECTION. Sec. 2. The legislature finds that drug-testing programs adopted by employers and licensing agencies have the potential to violate the privacy rights of employees and licensees. The purpose of this chapter is to remedy such violations and better secure the right to privacy. It shall be construed liberally for the accomplishment of its purpose.

NEW SECTION. Sec. 3. The definitions in this section apply throughout this chapter.

(1) "Drug test" means any blood, urine, or other test designed to identify the presence of chemical substances in the body.

(2) "Employee" means any person working for salary, wages, or commissions within the state.

(3) "Employer" means the state, any agency or political subdivision thereof, any municipal corporation, or any person, firm, corporation, partnership, or other organization or group of persons however organized, located or doing business within the state, which employs personnel for salaries, wages, or commissions, or any person acting as an agent of such an organization.

(4) "Licensee" means any person who, as required by Title 18 RCW or other applicable provision of law, holds a license to engage in an occupation or profession in the state.

(5) "Licensing agency" means the state, any agency or political subdivision thereof, or any municipal corporation, that is authorized by Title 18 RCW or other applicable provision of law to issue licenses to individuals to permit them to engage in an occupation or profession in the state.

NEW SECTION. Sec. 4. Except as provided in section 5 of this act, no employer or licensing agency may require, directly or indirectly, that any employee, licensee, or prospective employee or licensee, submit to, take, or undergo a drug test as a condition of employment or licensing or of continued employment or licensing.

NEW SECTION. Sec. 5. An employer or licensing agency may require a specific employee or licensee to submit to drug testing designed to identify the unauthorized presence of chemical substances in the body if the employer or licensing agency has reasonable grounds to believe that an employee's or licensee's work performance is impaired due to the presence of chemical substances in the body.

NEW SECTION. Sec. 6. In conducting a test authorized under section 5 of this act, the employer or licensing agency shall:

(1) Prepare a prior written statement setting forth the grounds for conducting the test as required by section 5 of this act;

(2) Use a testing procedure that (a) measures the quantities of chemical substances not authorized to be present in the body that may affect the ability of the employee or licensee to perform safely his or her work; and (b) in light of currently available technology does not produce an unreasonable percentage of false positives in all tests;

(3) Establish a procedure to verify the chain of custody of the sample;

(4) Provide the employee or licensee, at the expense of the employer or licensing agency, the opportunity to have the sample evaluated by an independent laboratory;

(5) Provide the employee or licensee with a reasonable opportunity to rebut or explain the results; and

(6) Take no adverse action on the basis of the test results unless scientifically based standards correlate the quantity of a chemical substance not authorized to be present in the employee's or licensee's body with impairment of his or her ability to perform safely his or her work.

NEW SECTION. Sec. 7. Any employer or licensing agency conducting a test authorized under section 5 of this act shall:

(1) Ensure to the extent feasible that the employer's or licensing agency's records only show or make use of information regarding the unauthorized presence of chemical substances in the body that are likely to affect the ability of the employee or licensee to perform safely his or her work; and

(2) Protect the confidentiality of the test results from disclosure to any person other than the employee or licensee. However, the results may be disclosed in an action or proceeding challenging any adverse employment or licensing action based on the results.

NEW SECTION. Sec. 8. In any civil action brought to enforce this chapter, the employer or licensing agency has the burden of proving that the requirements of sections 4 through 7 of this act have been met.

NEW SECTION. Sec. 9. Except as expressly set forth in sections 4 through 7 of this act, nothing in this chapter shall add to or detract from: (1) An employer's ability to establish job performance standards or to condition employment or continued employment on satisfactory job performance; or (2) the authority conferred on licensing agencies by law to establish licensing standards or to issue, renew, suspend, or revoke licenses.

NEW SECTION. Sec. 10. Nothing in sections 4 through 7 of this act shall prevent an employer from conducting medical screening, with the express written consent of the affected employees, to monitor exposure to toxic or other unhealthy substances in the work place or in the performance of their job responsibilities if the screenings are limited to the specific substances reasonably believed to be present and expressly identified in the employee consent form.

NEW SECTION. Sec. 11. (1) Nothing in this chapter shall be construed as limiting any statutory or common law right of a person illegally denied employment or continued employment under sections 4 through 7 of this act for purposes of any civil action or injunctive relief.

(2) In a civil action alleging a violation of sections 4 through 7 of this act, the court shall:

(a) In addition to any award of actual damages, award a penalty in the amount of five hundred dollars to a prevailing employee, licensee, or prospective employee or licensee upon final judgment and written findings of the trial judge that the employer or licensing agency intentionally or recklessly committed a violation of sections 4 through 7 of this act;

(b) Award reasonable attorneys' fees and costs to the prevailing employee, licensee, or prospective employee or licensee; and

(c) Pursuant to RCW 4.84.185, award any prevailing party against whom an action has been brought for a violation of this chapter reasonable expenses and attorneys' fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause.

NEW SECTION. Sec. 12. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 13. Sections 1 through 11 of this act shall constitute a new chapter in Title 49 RCW.