AN ACT Relating to workplace drug testing; adding a new chapter to Title 49 RCW; prescribing penalties; providing effective dates; and providing an expiration date.

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

NEW SECTION. Sec. 1. PURPOSE. The legislature finds that drug testing programs adopted by employers and licensing agencies raise serious concerns over the potential for abuse in the areas of employee, licensee, and applicant privacy; standards of testing; confidentiality of records; and disciplinary action based on test results. The legislature also recognizes that drug use exists in the workplace and that employers have an obligation to provide a safe working environment. The purpose of this chapter is to limit the potential for abuse by regulation of workplace drug testing and to provide remedies for privacy violations. This chapter shall be construed liberally for the accomplishment of its purpose.

NEW SECTION. Sec. 2. DEFINITIONS. As used in this chapter, the terms in this section have the meanings indicated unless the context clearly requires otherwise.

(1) "Applicant" means a person who applies to become an employee of an employer or who applies to a licensing agency to become a licensee.

(2) "Confirmation test" means a second substance abuse test performed on a second portion of the original test sample through the use of gas chromatography-mass spectrometry or other at least equally reliable scientifically accepted method that provides specific data to verify the presence of a drug in the test sample as indicated by an initial positive screening test result.

(3) "Drug" means a controlled substance under chapter 69.50 RCW.

(4) "Drug or alcohol test" means the procedure of taking and analyzing body fluids or materials from the body for the purpose of detecting the presence of a drug, alcohol, metabolite, or other related substances in the sample tested, but does not include tests designed to determine blood-alcohol concentrations from a sample of a person's breath.

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

(6) "Employee assistance program" means a program to assist employees or licensees with an alcohol, drug, or other health or behavioral problem, using professionals to conduct confidential evaluations and refer employees or licensees to the most appropriate resources available. An employee assistance program does not provide treatment or rehabilitation, but provides initial treatment referral and followup contact with the employee or licensee using the employee assistance program.

(7) "Employer" means the state, an agency or political subdivision thereof, a municipal corporation, or a person, firm, corporation, partnership, or other organization or group of persons, however organized, located or doing business within the state or recruiting employees within the state, that employs personnel for salaries, wages, or commissions, or any person acting as an agent of such an organization. "Employer" does not include a person or entity who contracts with an independent contractor with respect to the employees of the independent contractor.

(8) "Licensee" means a 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.

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

(10) "Negative test result" means a test result that indicates that:

(a) A drug or metabolite is not present in the tested sample; or

(b) A drug or metabolite is present in the tested sample in a concentration below the threshold level.

(11) "Positive test result" means a result on a confirmation test that indicates the presence of a drug, alcohol, or their metabolites in the tested sample at or above the specified threshold level.

(12) "Rehabilitation program" means a clinically supervised program approved under chapter 69.54 or 70.96A RCW for the treatment of drug or alcohol addiction, as recommended by an employee assistance program.

(13) "Screening test" means an initial drug or alcohol test performed on a test sample through the use of an immunoassay technology or other equally reliable scientifically accepted method that is used as a preliminary step in detecting the presence of a drug or metabolite in the test sample.

(14) "Threshold level" means the minimum amount of a substance that must be present in a test sample to be considered a positive test result.

NEW SECTION. Sec. 3. LIMITATIONS ON DRUG AND ALCOHOL TESTING. (1) An employer or licensing agency shall not request or require an employee, licensee, or applicant to undergo drug or alcohol testing unless the requirements of this chapter are met.

(2) Except as provided in subsection (4) of this section, an employer or licensing agency shall not request or require an employee or licensee to undergo 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. For the purposes of this section, "reasonable suspicion" means knowledge of specific facts, circumstances, physical evidence, or physical signs and symptoms that would cause a reasonable person to conclude that an employee or licensee may be under the influence of drugs or alcohol. The grounds for requiring a drug or alcohol test under this subsection shall be documented.

(3) An employer or licensing agency shall not request or require an applicant for employment or licensing to undergo drug or alcohol testing or a preemployment or prelicensing physical examination that includes drug or alcohol testing unless the same test or examination is requested or required of all applicants who are finalists for employment in the same position. The employer or licensing agency shall provide at least twenty-four hours' notice prior to the drug or alcohol test or physical examination that a test or examination is required. Disclosure of the test or examination requirement shall be included in any notice or advertisement soliciting applicants for employment or licensing or in the application for employment or licensing. An applicant for employment shall be personally informed of the requirement for a drug test during the first direct contact with the applicant.

(4) Random or mandatory drug or alcohol testing of employees or licensees is prohibited except for employees or licensees who refuse rehabilitation or who are found fit to return to work as provided in (a) of this subsection, for employees or licensees who are undergoing rehabilitation as provided in (b) of this subsection, as part of a routine annual physical examination as provided in (c) of this subsection, or in conjunction with a work-related accident as provided in (d) of this subsection.

(a) An employer or licensing agency may require an employee or licensee who has received a positive test result to submit to up to six subsequent drug or alcohol tests performed at randomly selected times over a one-year period as a condition of continued employment: (i) If the employee or licensee chooses not to undergo rehabilitation determined appropriate by the employee assistance program; or (ii) after the employee assistance program or rehabilitation program determines that the employee or licensee is fit to return to work.

(b) While the employee or licensee is participating in a rehabilitation program either as a result of voluntary contact with or mandatory referral to the employee assistance program or after a positive test result, drug or alcohol testing may be conducted by the rehabilitation or treatment provider as required, requested, or suggested by that provider.

(i) Drug or alcohol testing conducted as part of such a rehabilitation or treatment program is not subject to the provisions of this chapter regulating drug and alcohol testing, except for section 18 of this act.

(ii) An employer or licensing agency shall not request or require that any drug or alcohol test be administered to an employee or licensee while the employee or licensee is undergoing such rehabilitation or treatment, except as provided in subsection (2) or (4)(a) of this section.

(iii) The results of a drug or alcohol test administered to an employee or licensee as part of such a rehabilitation or treatment program shall not be released to the employer or licensing agency.

(c) An employer or licensing agency shall not request or require an employee or licensee to undergo drug or alcohol testing as part of a routine physical examination unless: (i) The examination is required for all employees or licensees within the employee's or licensee's class; (ii) the examination is a comprehensive health evaluation including a review of systems and laboratory tests as indicated by symptoms or required by chapter 49.17 RCW; (iii) the conditions under which the testing is conducted are not more intrusive than those required for the physical examination; and (iv) the results of the examination, including any drug or alcohol testing, are evaluated by the examining health professional. The drug or alcohol test shall not be requested or required more than once annually and the employee or licensee shall be given at least two days' written notice of the examination date, including notice that a drug or alcohol test may be requested or required as part of the physical examination.

(d) An employer or licensing agency may require an employee or licensee to undergo drug or alcohol testing if the employee or licensee is directly involved in a significant work-related accident. Any testing under this subsection (d) shall be reported to the department of labor and industries pursuant to section 24 of this act. For the purposes of this subsection (d), "significant work-related accident" means an accident involving property damage of more than one thousand dollars or personal injury, including fatality, that requires reporting and investigation or recording under chapter 49.17 RCW, but the application of this definition is not limited by the employer's size.

NEW SECTION. Sec. 4. EXCLUSIONS. (1) This chapter does not apply to:

(a) Drug or alcohol testing of health care professionals when testing is conducted pursuant to a substance abuse monitoring program approved by the disciplining authority as authorized by law;

(b) Drug or alcohol testing required as a condition of probation, court-ordered rehabilitation or other court order; or

(c) Drug or alcohol testing of law enforcement personnel whose job assignment specifically requires the enforcement of the uniform controlled substances act or laboratory examination and analysis of controlled substances.

(2) Except as provided under subsection (3) of this section, the protections provided under this chapter do not apply to employees, licensees, and applicants where the specific work performed requires those employees, licensees, or applicants to be subject to drug or alcohol testing pursuant to:

(a) Federal regulations that specifically preempt state regulation of drug or alcohol testing with respect to those employees, licensees, or applicants;

(b) Federal regulations or requirements necessary to operate federally regulated facilities;

(c) Criteria established by United States nuclear regulatory commission regulations, policy statements, or other official commission action; or

(d) Federal contracts that require drug or alcohol testing to be conducted for security, safety, or protection of sensitive or proprietary data.

(3) Employers, licensing agencies, and testing laboratories shall comply with the protections provided in this chapter with respect to employees, licensees, or applicants otherwise excluded under subsection (2) of this section to the extent that the provisions of this chapter are not inconsistent with or specifically preempted by the federal regulations, contract, or requirements applicable to drug or alcohol testing.

NEW SECTION. Sec. 5. TESTING TO BE PERFORMED DURING WORK TIME‑-COSTS. (1) Any drug or alcohol testing by an employer shall occur during or immediately after the regular work period of current employees and shall be deemed work time for purposes of compensation and benefits.

(2) An employer or licensing agency shall pay all costs of testing for drugs or alcohol required by the employer or agency, including the cost of the employee's or licensee's transportation to the testing site if other than the work site.

(3) For testing of employment or licensing applicants, the employer or licensing agency shall pay the costs of drug or alcohol tests required by the employer or agency.

NEW SECTION. Sec. 6. WRITTEN POLICY OF EMPLOYER OR LICENSING AGENCY. Before establishing any drug or alcohol testing program, an employer or licensing agency shall develop a written policy in compliance with this chapter providing for:

(1) The procedure and consequences of an employee's or licensee's voluntary admission of a substance abuse problem and any available assistance, including the availability and procedure of the employee assistance program;

(2) The employees, licensees, or applicants subject to testing under the policy;

(3) The circumstances under which drug or alcohol testing may be requested or required;

(4) The right of an employee, licensee, or applicant to refuse to undergo drug or alcohol testing and the consequences of refusal;

(5) Any disciplinary or other adverse personnel action that may be taken based on a positive test result;

(6) The right of an employee, licensee, or applicant to explain a positive test result or to request and pay for a confirmatory retest;

(7) Requirements for the collection of samples, including:

(a) The collection of any sample for use in a drug or alcohol test shall be conducted in a medical facility, which may include a temporary or permanent work-site medical facility, or a facility approved under chapter 69.54 or 70.96A RCW to provide drug or alcohol treatment, and shall be supervised by trained medical personnel or trained personnel approved under chapter 69.54 or 70.96A RCW to provide drug or alcohol treatment;

(b) The collection of a urine sample shall not be observed, directly or indirectly, except by medical personnel of the respective sex of the person being tested;

(d) Chain of custody procedures shall be established sufficient to protect the samples from tampering and to verify the identity of each sample and test results;

(8) The drugs or metabolites for which tests will be conducted;

(9) An explanation of the right to obtain other samples. If requested at the time the test sample is taken, the employer or licensing agency shall, at that time, make available to the employee, licensee, or applicant tested a portion or portions of the sample for that person's own testing. Any such testing shall comply with the testing requirements of this chapter. The employee, licensee, or applicant shall pay the costs of these tests;

(10) The threshold levels for both screening and confirmation tests at which the presence of a drug or metabolite in a sample is considered a positive test result;

(11) Opportunities and procedures for rehabilitation following a positive test result;

(12) A procedure under which an employee, licensee, or applicant who receives a positive test result may appeal and contest the accuracy of that result; and

(13) Any other appeal procedures available.

An employer must consult with his or her employees while developing, after the effective date of this section, a drug or alcohol testing policy under this section.

NEW SECTION. Sec. 7. EMPLOYEE ASSISTANCE PROGRAM. Before establishing a drug or alcohol testing program for employees or licensees, an employer shall have or provide access to a functioning employee assistance program and a licensing agency shall adopt rules providing for referral to an assistance program meeting the standards of an employee assistance program. Employers or licensing agencies may meet the requirements of this section by participating in a cooperative assistance program that serves the employees or licensees of more than one employer or agency. The employee assistance program shall provide services with the highest possible degree of confidentiality, which shall, at a minimum, comply with section 18 of this act.

NEW SECTION. Sec. 8. NOTICE. An employer or licensing agency shall provide written notice of its drug or alcohol testing policy to all affected employees and licensees upon adoption of the policy, to a previously nonaffected employee or licensee upon transfer to an affected position under the policy, and to an applicant as required in section 3 of this act. An employer or licensing agency shall also post notice in an appropriate and conspicuous location on the employer's or agency's premises that a drug and alcohol testing policy has been adopted and that copies of the policy are available for inspection in an identified and suitable location during regular business hours.

NEW SECTION. Sec. 9. WAIVER PROHIBITED. (1) No employer or licensing agency may request or require that any employee, licensee, or applicant sign or agree to any form or agreement that:

(a) Attempts to absolve the employer or agency from any potential liability arising out of the imposition of the drug or alcohol test; or

(b) Attempts to waive an employee's, licensee's, or applicant's rights or eliminate or diminish an employer's or agency's obligations under this chapter.

(2) A form or agreement prohibited by this section is void.

NEW SECTION. Sec. 10. TESTING LABORATORIES. A drug or alcohol test administered under this chapter shall be performed in a testing laboratory that complies with this section. The testing laboratory shall have the minimum qualifications specified in this section.

(1) The director of the laboratory or the director of the toxicology department:

(a) Possesses a doctoral degree in pharmacology, toxicology, or chemistry, is a physician certified by the American board of pathology, or is certified by the state in which the laboratory is located as a laboratory director in forensic or toxicological analysis;

(b) Has at least two years' experience in an analytical toxicology laboratory; and

(c) Is certified by the American board of forensic toxicology, the American board of clinical chemistry in toxicological chemistry, the American board of pathology in clinical pathology, or other comparable national accrediting board in one of the laboratory specialties.

(2) The laboratory has written testing procedures and procedures that ensure a clear chain of custody.

(3) The laboratory is certified or accredited by the national institute on drug abuse, the college of American pathology (forensic urine drug testing program), or other comparable nationally recognized accrediting program for forensic toxicology.

(4) The laboratory follows quality control procedures, including, but not limited to:

(a) The use of internal quality controls during drug and alcohol testing, including the use of blind samples and samples of known concentrations that are used to check the performance and calibration of testing equipment;

(b) Procedures for internal review and certification of test results; and

NEW SECTION. Sec. 11. TRANSITIONAL LABORATORY PROVISIONS. (1) A drug or alcohol test administered under this chapter shall be performed in a qualified testing laboratory. A laboratory shall be qualified under this section if the laboratory meets all federal requirements and is certified for medicare reimbursement.

(2) This section shall expire on December 31, 1990.

NEW SECTION. Sec. 12. CONSTRUCTION‑-LABORATORY REQUIREMENTS. Sections 10 and 11 of this act shall not be construed to preclude employees, licensees, or applicants from challenging the accuracy or reliability of drug or alcohol test results or create a presumption with regard to the accuracy or reliability of test results.

NEW SECTION. Sec. 13. LABORATORY REPORTS. (1) A laboratory may report that a test sample is positive only if both the initial screening test and confirmation test are positive for the particular substance being tested. The detection of the substance being tested below the established threshold level shall be reported as a negative test result. The laboratory's report shall not contain any information indicating the presence of the substance being tested below the threshold level.

(2) The laboratory shall provide the employer or licensing agency with a written report of the drug or alcohol test result that includes the following information:

(a) The substances for which testing was conducted;

(b) The type of test conducted;

(c) The results of the screening test if the screening test is negative or, if the screening test is positive, the results of the confirmatory test;

(d) The threshold level established for both the initial screening and confirmation procedures; and

(e) The name and address of the laboratory.

(3) The laboratory shall preserve a portion of any positive sample in a condition that will permit retesting for a period of not less than ninety days after the person tested receives the result.

NEW SECTION. Sec. 14. RIGHTS OF EMPLOYEES, LICENSEES, AND APPLICANTS. (1) Before requesting or requiring an employee, licensee, or applicant to undergo drug or alcohol testing, an employer or licensing agency shall provide the employee, licensee, or applicant with a form, developed by the employer or agency, on which to acknowledge that the employee, licensee, or applicant has seen the employer's or agency's drug or alcohol testing policy. Prior to or at the time of the test, the employee, licensee, or applicant shall be given an opportunity to indicate any over-the-counter or prescription medications that the individual is currently taking or has recently taken and any other information relevant to the reliability of, or explanation for, a positive test result. The information shall be sealed and may be revealed to the laboratory or other medical professional evaluating the test results only if the drug or alcohol test result of the individual providing the information is positive. The information shall not be revealed to the employer or licensing agency.

(2) Within five working days after receipt of a test result report from the testing laboratory, an employer or licensing agency shall inform in writing the employee, licensee, or applicant who has undergone drug or alcohol testing of a positive test result and, upon request, the absence of a positive test result. In the case of a positive test result, the employer or licensing agency shall also, at the time of this notice, inform the employee, licensee, or applicant in writing of the right to submit further information relative to the positive test result or to have a confirmatory retest.

(3) Within five working days after notice from the employer or licensing agency of a positive test result, the employee, licensee, or applicant may submit information to the employer or agency, in addition to any information already submitted under subsection (1) of this section, to explain that result, or may request a confirmatory retest of the original sample at the employee's, licensee's, or applicant's own expense.

(4) Within five working days after notice of the positive test result, the employee, licensee, or applicant shall notify the employer or licensing agency in writing of the employee's, licensee's, or applicant's intent to obtain a confirmatory retest. Within three working days after receipt of the notice, the employer or agency shall notify the original testing laboratory that the employee, licensee, or applicant has requested the laboratory to conduct the confirmatory retest or transfer the sample to another laboratory meeting the requirements of this chapter to conduct the confirmatory retest. The original testing laboratory shall ensure that the chain-of-custody procedures are followed during transfer of the sample to the other laboratory. The confirmatory retest shall use the same drug or alcohol threshold detection levels used in the original confirmatory test and shall otherwise meet the requirements of this chapter that apply to the confirmatory test. If the confirmatory retest does not confirm the original positive test result, no disciplinary action based on the original confirmatory test may be taken against the employee, licensee, or applicant and the results of the original confirmatory test shall not be placed or maintained in the employee's personnel file.

(5) An employer or licensing agency shall provide an employee, licensee, or applicant who has a positive test result an opportunity for an informal meeting to explain the results and explain why the result may not be accurate.

(6) An employee, licensee, or applicant has the right to request and receive from the employer or licensing agency a copy of a positive test result report on any drug or alcohol test or, if the employer or agency preserves a copy, of a negative test result report on any such test.

(7) Delay in reporting of drug or alcohol test results by a laboratory shall not be interpreted as a positive or negative test by the employer or licensing agency.

NEW SECTION. Sec. 15. ADVERSE PERSONNEL ACTIONS. (1) (a) An employer shall not discharge, discipline, discriminate against, or request or require rehabilitation of an employee nor may a licensing agency deny or withdraw a license on the basis of an initial screening test that has not been verified by a confirmatory test.

(b) If an applicant has received an employment offer made contingent on the applicant passing a drug or alcohol test, the employer shall not withdraw the offer based on an initial screening test that has not been verified by a confirmatory test.

(2) Except as provided in subsection (4) of this section, an employer or licensing agency shall not take disciplinary action against an employee or licensee solely on the basis of a positive test result if the positive result was the first such result on a drug or alcohol test requested by the employer or agency unless:

(a) The employee or licensee is given an opportunity to participate in a drug or alcohol counseling or rehabilitation program or other program, as determined appropriate by the employee assistance program; and

(b) The employee or licensee has either refused to participate in the program recommended by the employee assistance program or has failed to successfully complete the program, as evidenced by withdrawal from the program before its completion or by a positive test result upon completion of the program.

(3) An employer or licensing agency may temporarily suspend the tested employee or licensee or transfer an employee to another position at the same rate of pay pending the outcome of the drug or alcohol test and, if requested, the confirmatory retest, if the employer or agency believes that it is reasonably necessary to protect the health or safety of the employee, coemployees, colicensees, or the public. An employee who has been suspended without pay must be reinstated with back pay if the outcome of the drug or alcohol test or requested confirmatory retest is negative.

(4) An employer or licensing agency may suspend an employee or licensee on the basis of a positive test result, but only for the period that the employee or licensee is participating in an employee assistance program or rehabilitation program and is determined by the program to be unfit to return to his or her regular employment.

(5) An employer or licensing agency shall not take disciplinary action against an employee or licensee on the basis of medical history information revealed to the employer or agency under section 14 of this act.

(6) An employee shall be given access to information in the employee's personnel file relating to positive test result reports and other information acquired in the drug and alcohol testing process, and conclusions drawn from and actions taken based on the reports or other acquired information.

NEW SECTION. Sec. 16. OTHER DISCIPLINARY ACTION. (1) Except as expressly provided, nothing in this chapter shall add to or detract from: (a) An employer's ability to establish job performance standards or to condition employment or continued employment on satisfactory job performance; or (b) the authority conferred on licensing agencies by law to establish licensing standards or to issue, renew, suspend, or revoke licenses.

(2) Nothing in this chapter prevents an employer or licensing agency from establishing written rules related to employees' or licensees' possession or use of drugs or alcohol, including convictions for drug-related offenses, and taking disciplinary action based on a violation of any of those rules, but any drug or alcohol test that is requested, required, or used as a basis for disciplinary action shall conform to the provisions of this chapter.

(3) Nothing in this chapter prevents an employer or licensing agency from disciplinary action based on an employee's or licensee's impairment as a result of drugs or alcohol.

NEW SECTION. Sec. 17. MEDICAL EXAMINATIONS. This chapter does not prevent an employer from requiring or performing medical examinations of employees or applicants or from conducting medical screenings, with the express written consent of affected employees, to monitor exposure to toxic or other harmful substances in the workplace if the screenings are limited to the specific substances reasonably believed to be present and expressly identified in the employee consent form. The examinations shall not be used to avoid the restrictions of this chapter.

NEW SECTION. Sec. 18. CONFIDENTIALITY. (1) The use of information acquired by an employer, licensing agency, laboratory, or rehabilitation provider in the drug or alcohol testing process shall comply with this section.

(2) In conducting drug or alcohol testing under this chapter, the employer or licensing agency shall ensure to the extent feasible that the tests only measure and that the records of the tests only show or make use of information regarding drugs or alcohol in the body that are likely to affect the ability of the employee or licensee to perform safely his or her duties while on the job.

(3) A laboratory may only disclose to the employer or licensing agency test result data regarding the presence or absence of drugs, alcohol, or their metabolites in a sample tested at or above the specified threshold level.

(4) Test result reports and other information acquired in the drug or alcohol testing process are, with respect to private sector employees and applicants, private and confidential information and, with respect to public sector employees, licensees, and applicants, personal information as that term is used in RCW 42.17.310 and shall not be disclosed by an employer, licensing agency, or laboratory to another employer or to a third-party individual, governmental agency, or private organization without the written consent of the employee, licensee, or applicant. However, test results may be released to an employee assistance program or a substance abuse rehabilitation program for the purpose of the evaluation or treatment of the employee or licensee.

(5) All information, interviews, reports, statements, memoranda, or test results received by the employer or licensing agency through a drug or alcohol testing program are confidential communications and shall not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceeding, except that evidence of a positive test result may be: (a) Used in an arbitration proceeding pursuant to a collective bargaining agreement, an administrative hearing under chapter 34.04 RCW or other applicable state or local law, or a judicial proceeding, if the information is relevant to the hearing or proceeding; (b) disclosed to any federal agency or other unit of the United States government as required under federal law, regulation, or order, or in accordance with compliance requirements of a federal government contract; and (c) disclosed to an employee assistance program or a substance abuse rehabilitation program for the purpose of the evaluation or treatment of the employee or licensee.

(6) The results of a drug or alcohol test may be recorded in the employee's personnel records. However, if an employee with a positive test result has undergone substance abuse evaluation and, when treatment is indicated under the evaluation, has successfully completed treatment for substance abuse, the employee's personnel records shall be expunged of any reference to the test or its results when the employee leaves employment.

NEW SECTION. Sec. 19. REMEDIES. (1) In a civil action alleging a violation of this chapter, the court may award, in addition to actual special and general damages:

(a) Reinstatement of the employee or licensee to his or her position of employment or licensure with full benefits; and

(b) Reasonable attorneys' fees and costs to the prevailing employee, licensee, or applicant.

(2) In addition to an award of actual damages, the court shall award a penalty in the amount of two times any lost wages or five hundred dollars, whichever is greater, to a prevailing employee, licensee, or applicant upon final judgment and written findings of the trial judge that the employer or licensing agency intentionally or recklessly committed a violation of this chapter.

(3) Pursuant to RCW 4.84.185, the court shall award a 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.

(4) In a civil action brought against an employer or licensing agency to enforce this chapter, the employer or licensing agency has the burden of proving that the requirements of this chapter have been met.

(5) (a) No cause of action arises in favor of any person based on the failure of an employer or licensing agency to establish a program or policy of drug or alcohol testing.

(b) No cause of action arises in favor of any person against an employer or licensing agency who has established a policy and initiated a drug or alcohol testing program in accordance with this chapter, for any of the following:

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

(ii) 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;

(iii) Failure to take disciplinary action against an employee or licensee or increase supervision of the employee or licensee on the basis of either a positive test result or knowledge of the employee's or licensee's participation in an employee assistance program or rehabilitation program. However, a cause of action shall not be barred for failure to take disciplinary action based on an act that is independent of the test result or the employer's or agency's knowledge of employee assistance program or rehabilitation program participation; or

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

(6) Any complaint filed pursuant to this section shall be filed within six months after the act that is alleged to have violated this chapter.

NEW SECTION. Sec. 20. COLLECTIVE BARGAINING. (1) This chapter shall not be construed to limit the parties to a collective bargaining agreement from bargaining and agreeing with respect to a drug or alcohol testing policy that meets or exceeds, and does not otherwise conflict with, the minimum standards and requirements for employee protection provided in this chapter.

(2) This chapter shall not be construed to interfere with or diminish any employee protections relating to drug or alcohol testing provided under collective bargaining agreements in effect on the effective date of this section that exceed the minimum standards and requirements for employee protection provided in this chapter.

NEW SECTION. Sec. 21. DRUG AND ALCOHOL TESTING NOT MANDATORY. This chapter does not require or encourage employers or licensing agencies to conduct drug or alcohol testing of their employees, licensees, or applicants. An employer or licensing agency that chooses to conduct such testing is limited by this chapter and by applicable constitutional constraints, but may establish policies that are supplemental to and not inconsistent with this chapter or that exceed the minimum standards for employee protection provided in this chapter.

NEW SECTION. Sec. 22. HANDICAP NOT DETERMINED SOLELY BY TEST OR PARTICIPATION IN REHABILITATION. An employee, licensee, or applicant with a positive test result on a drug or alcohol test shall not, solely on the basis of the test results or participation in an employee assistance program or rehabilitation program, be defined as a person with a "handicap" for purposes of chapter 49.60 RCW.

NEW SECTION. Sec. 23. RETALIATION PROHIBITED. An employee or licensee shall not be discharged, disciplined, or discriminated against in any manner for filing a complaint or testifying in any proceeding or action involving violations of this chapter. An employee or licensee discharged, disciplined, or otherwise discriminated against in violation of this chapter may be awarded the amount of any lost wages and benefits arising out of the discrimination and may be reinstated to his or her previous position of employment or licensure.

NEW SECTION. Sec. 24. ACCIDENT TESTING‑-STUDY. All drug or alcohol testing required by an employer or licensing agency under section 3(4)(d) of this act shall be reported to the department of labor and industries under rules adopted by the department. The department's rules shall include:

(1) Requirements providing for confidentiality of drug or alcohol testing information with respect to any specific person or employer. Information obtained from the employer or licensing agency shall be private and confidential and shall not be subject to public disclosure under chapter 42.17 RCW, except that statistical information, not descriptive of any readily identifiable person or persons, business, or businesses, may be disclosed;

(2) Procedures and forms for reporting. To the extent practical, the reporting requirements shall be in conjunction with existing reports required by law; and

(3) Information to be reported, including but not limited to a description of the accident, the number of persons or the amount of property damage involved in the accident, the kind of injury, the results of any drug or alcohol test or other medical or environmental testing conducted as a result of the accident and other relevant factors.

The department shall report on the information collected pursuant to this section, including other relevant accident statistics for comparison purposes, to the law and justice committee of the senate and the commerce and labor committee of the house of representatives, or the appropriate successor committees, at the beginning of the 1992 legislative session.

NEW SECTION. Sec. 25. SEVERABILITY. If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of the chapter or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 26. SECTION CAPTIONS. Section captions as used in this chapter constitute no part of the law.

NEW SECTION. Sec. 27. (1) Sections 1 through 9 and 11 through 26 of this act shall take effect January 1, 1989.

(2) Section 10 of this act shall take effect January 1, 1991.

NEW SECTION. Sec. 28. This chapter shall expire January 1, 1993.

NEW SECTION. Sec. 29. Sections 1 through 28 of this act shall constitute a new chapter in Title 49 RCW.