AN ACT Relating to drug testing in the work place; adding a new chapter to Title 49 RCW; and declaring an emergency.

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

NEW SECTION. Sec. 1. The legislature finds that a healthy and productive work force, safe working conditions free from the effects of drugs and alcohol, and maintenance of the quality of products produced and services rendered in this state, are important to employers, employees, and the general public. The legislature further finds that the abuse of drugs and alcohol creates a variety of work place problems, including increased injuries on the job, increased absenteeism, increased financial burden on health and benefit programs, increased work place theft, decreased employee morale, decreased productivity, and a decline in the quality of products and services.

Therefore, in balancing the interests of employers, employees, and the welfare of the general public, the legislature finds that fair and equitable testing for drugs and alcohol in the work place, in accordance with this chapter, is in the best interest of all parties.

The legislature does not intend to prohibit any employee from seeking damages or job reinstatement, if action was taken by the employer based on a false drug or alcohol test result.

NEW SECTION. Sec. 2. For the purpose of this chapter:

(1) "Alcohol" means ethyl alcohol or ethanol.

(2) "Drugs" means any substance recognized as a drug in the United States Pharmacopeia, the National Formulary, the Homeopathic Pharmacopeia, or other drug compendia, or supplement to any of those compendia.

(3) "Employer" means any person, firm, or corporation, including any public utility or transit district, which has one or more workers or operators employed in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written.

(4) "Employee" means any person in the service of an employer, as defined in subsection (3) of this section.

(5) "Prospective employee" means any person who has made application to an employer, whether written or oral, to become an employee.

(6) "Sample" means urine, blood, breath, saliva, or hair.

NEW SECTION. Sec. 3. It is not unlawful for an employer to test employees or prospective employees for the presence of drugs or alcohol, in accordance with the provisions of this chapter, as a condition of hiring or continued employment. However, if employers perform such tests, employers and management in general must submit to the testing themselves on a periodic basis.

NEW SECTION. Sec. 4. In order to test reliably for the presence of drugs or alcohol, an employer may require samples from his or her employees and prospective employees, and may require presentation of reliable identification to the person collecting the samples. Collection of the sample shall be in conformance with the requirements of this chapter. The employer may designate the type of sample to be used for testing.

NEW SECTION. Sec. 5. (1) Drug or alcohol testing by an employer shall occur during or immediately after the regular work period. Such testing by the employer shall be considered work time for the purposes of compensation and benefits for current employees.

(2) An employer shall pay all costs of testing for drugs or alcohol required by the employer, including the cost of transportation, if the testing of a current employee is conducted at a location other than the work place.

NEW SECTION. Sec. 6. All sample collection and testing for drugs and alcohol under this chapter shall be performed in accordance with the following conditions:

(1) The collection of samples shall be performed under reasonable and sanitary conditions;

(2) Samples shall be collected and tested with due regard to the privacy of the individual being tested, and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples;

(3) Sample collections shall be documented, and said documentation procedures shall include:

(a) Labeling of samples so as to reasonably preclude the probability of erroneous identification of test results; and

(b) An opportunity for the employee or prospective employee to provide notification of any information which may be considered as relevant to the test, including identification of currently or recently used prescriptions or nonprescription drugs, or other relevant medical information;

(4) Sample collection, storage, and transportation to the place of testing shall be performed so as to reasonably preclude the probability of sample contamination or adulteration; and

(5) Sample testing shall comply to scientifically accepted analytical methods and procedures. Testing shall include verification or confirmation of any positive test results by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical method, before the result of any test may be used as a basis for any action by an employer.

NEW SECTION. Sec. 7. (1) Testing or retesting for the presence of drugs or alcohol by an employer shall be carried out within the terms of a written policy that has been distributed to every employee and is available for review by prospective employees.

(2) Within the terms of the written policy, an employer may require the collection and testing of samples for the following purpose:

(a) Investigation of possible individual employee impairment;

(b) Investigation of accidents in the work place or incidents of work place theft;

(d) Maintenance of productivity, quality of products or services, or security of property or information.

(3) The collection and testing of samples shall be conducted in accordance with this chapter and need not be limited to circumstances where there are indications of individual, job-related impairment of an employee or prospective employee.

(4) The employer's use and disposition of all drug or alcohol test results are subject to the limitations of this chapter.

NEW SECTION. Sec. 8. Upon receipt of a verified or confirmed positive drug or alcohol test result which indicates a violation of the employer's written policy, or upon the refusal of an employee or prospective employee to provide a sample, an employer may use that test or refusal as the basis for disciplinary or rehabilitative actions, which may include the following:

(1) A requirement that the employee enroll in an employer-approved rehabilitation, treatment, or counseling program, which may include additional drug or alcohol testing, as a condition of continued employment;

(2) Suspension of the employee with or without pay for a period of time;

(3) Termination of employment;

(4) Refusal to hire a prospective employee; or

(5) Other disciplinary measures in conformance with the employer's usual procedures, including any collective bargaining agreement.

NEW SECTION. Sec. 9. No cause of action arises in favor of any person against an employer who has established a policy and initiated a testing program in accordance with this chapter, for any of the following:

(1) Failure to test for drugs or alcohol, or failure to test for a specific drug or other substance;

(2) Failure to test for, or if tested for, failure to detect, any specific drug or other substance, disease, infectious agent, virus, or other physical abnormality, problem, or defect of any kind; or

(3) Termination or suspension of any drug or testing program or policy.

NEW SECTION. Sec. 10. (1) No cause of action arises in favor of any person against an employer who has established a program of drug or alcohol testing in accordance with this chapter, unless the employer's action was based on a false test result.

(2) In any claim, including a claim under this chapter, where it is alleged that an employer's action was based on a false test result:

(a) There is a rebuttable presumption that the test result was valid if the employer complied with the provisions of this chapter; and

(b) The employer is not liable for monetary damages if his or her reliance on a false test result was reasonable and in good faith.

NEW SECTION. Sec. 11. No cause of action for defamation of character, libel, slander, or damage to reputation arises in favor of any person against an employer who has established a program of drug or alcohol testing in accordance with this chapter, unless:

(1) The results of that test were disclosed to any person other than the employer, an authorized employee or agent of the employer, the tested employee, or the tested prospective employee;

(2) The information disclosed was a false test result;

(3) The false test result was disclosed with malice; and

(4) All elements of an action for defamation of character, libel, slander, or damage to reputation as established by statute or common law, are satisfied.

NEW SECTION. Sec. 12. No cause of action arises in favor of any person based upon the failure of an employer to establish a program or policy of drug or alcohol testing.

NEW SECTION. Sec. 13. All information, interviews, reports, statements, memoranda, or test results received by the employer through his or her drug or alcohol testing program are confidential communications and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceeding, except in a proceeding related to an action taken by an employer under this chapter.

NEW SECTION. Sec. 14. This chapter may be known and cited as the work place drug testing act.

NEW SECTION. Sec. 15. 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. 16. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.

NEW SECTION. Sec. 17. Sections 1 through 15 of this act shall constitute a new chapter in Title 49 RCW.