BILL REQ. #:  H-2309.2 

READ FIRST TIME 2/28/07.   

     AN ACT Relating to employment decisions based on consumption of lawful products; adding a new section to chapter 49.44 RCW; and prescribing penalties.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 49.44 RCW to read as follows:
     (1) Except as provided in subsection (2) of this section, it is unlawful for an employer to require an employee or prospective employee to disclose verbally or in writing whether he or she consumed lawful tobacco products at any time before or during employment with the employer or to require an employee or prospective employee to agree verbally or in writing not to consume lawful tobacco products off the premises of the employer during nonworking hours.
     (2) An employer may require an applicant or prospective employee to disclose consumption of or agree not to consume lawful tobacco products, or both:
     (a) Under the terms of an employer's legitimate conflict of interest policy reasonably designed to protect the employer's trade secrets, proprietary information, or other proprietary interests;
     (b) To meet a bona fide occupational qualification or requirement, including qualifications or requirements implemented by the employer to screen for respiratory diseases in occupations where the individual will be exposed to smoke and noxious fumes;
     (c) Under the terms of the employer's drug and alcohol free workplace program, including those adopted in response to federal requirements;
     (d) Under the terms of an employer's insurance policy or wellness program, as otherwise permitted by law; or
     (e) If the employer is a religious or health organization whose tenets prohibit the use of an otherwise lawful tobacco product or a company or nonprofit organization whose primary business purpose is the prevention of cancer or heart and lung disease.
     (3) Nothing in this section shall be applied to any matter that is also subject to collective bargaining between the employer and the affected employee.
     (4) Nothing in this section precludes an employer from adopting policies prohibiting the consumption of lawful tobacco products on the employer's premises or during working hours, or both.
     (5) For purposes of this section, "employer" means any person, firm, corporation, or the state of Washington, its political subdivisions, or municipal corporations.
     (6) Any person violating this section is guilty of a misdemeanor.
     (7) In a civil action alleging a violation of this section, the court may:
     (a) Award a penalty in the amount of five hundred dollars to a prevailing employee or prospective employee in addition to any award of actual damages;
     (b) Award reasonable attorneys' fees and costs to the prevailing employee or prospective employee; and
     (c) Pursuant to RCW 4.84.185, award any prevailing party against whom an action has been brought for a violation of this section 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.