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Washington drug testing laws

Addiction to drugs or alcohol has ruined the lives of countless people and their families worldwide. Many addicts either don’t believe or refuse to believe that they have a problem. It is common that many drug addicts and alcoholics hit “rock bottom” for their eyes finally to be opened. It is then that they slowly begin to put the pieces of their lives back together. They can be counted among the lucky ones.

Legal claims for drug testing

Because Washington D.C. law does not put any limits on workplace drug testing, employees who believe their test was illegal will have to rely on other legal theories. For example, an employer may run into legal trouble based on who is tested or how the test is conducted. Here are some examples:

Disability discrimination – The Americans with Disabilities Act (ADA) protects an applicant or employee who is taking medication for a disability. Some prescribed medications can result in a positive result on a drug test, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant’s medication was legally prescribed for a disability, the company could be liable.

Other discrimination claims – An employer who singles out certain groups of employees — for example, by race, age, or gender — for drug testing could face a discrimination claim.

Invasion of privacy – Even an employer that has a legitimate reason to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation, depending on the circumstances.

Defamation – An employee might have a valid claim for defamation if the employer publicizes a false positive result, if the employer acts in bad faith and knew (or should have known) that the result was incorrect.

Employees – Employees of the District government can be randomly selected for drug and alcohol testing. An applicant may be offered employment contingent on receipt of a satisfactory drug testing result and may work in a position that is not safety sensitive before receiving the results. The District will give notice of implementing a testing program at least 30 days in advance of the implementation of the program. No employee may be tested before receiving the required notice. Each employee will be given one opportunity to seek treatment if needed. District employees who operate a motor vehicle in the performance of their employment will be subject to the testing of their urine or breath, with the employees’ consent. Testing for the purposes of determining drug or alcohol content can be done whenever a supervisor has probable cause or a police officer arrests such person for a violation of the law and has reasonable grounds to believe that the employee has been operating a motor vehicle within the District while under the influence of alcohol or drugs.

Alcohol & the Americans with Disabilities Act:

Alcoholism is treated as a disability under the ADA. A test for alcohol is considered a medical examination under the ADA — an important distinction when compared to a test for illegal drugs. Therefore, you may only test an employee for alcohol if you have reasonable suspicion that they are under the influence while at work. The other point to keep in mind is that since alcoholism is a disability under the ADA, the employee is entitled to reasonable accommodation.

Here are some important things to be aware of regarding reasonable accommodation:

  • The law doesn’t require you to accept poor performance or conduct just because an employee is an alcoholic.
  • You absolutely have the right to ban the use of alcohol in the workplace (in fact, Washington law requires you to do so).
  • The law does require you to accommodate an employee who makes a reasonable request. Possible accommodation could be allowing an employee to leave early to attend AA meetings, or giving them a leave of absence to enter a treatment program.

Drugs & the Americans with Disabilities Act:

Many of our employers conduct pre-employment drug tests. These are not medical exams under the ADA, and addiction to illegal drugs is not considered a disability under the ADA.

However, employees utilizing prescription drugs to treat a disability are protected under the ADA and must be accommodated.

For example, an employee could reveal their need to use a prescription medication that inhibits their ability to drive. In this instance, a reasonable accommodation could be to pair them with a co-worker they can ride with to meetings or events, or to allow them to participate via teleconferencing whenever possible.

Can an employer require an employee to submit to drug/alcohol testing?

In addition to drug/alcohol testing required by state or federal law, an employer may require a specific employee to submit to drug/alcohol testing designed to identify the presence in the body of controlled substances referenced under chapter 69.50 RCW, other than drugs prescribed by a physician, if:

The employer has a policy that

  • complies with legal requirements;
  • establishes procedures under which the test may be conducted;
  • provides for the confidential treatment of drug and or alcohol test results as required by law or in an action or proceeding challenging any disciplinary action arising from the circumstances which led to the test; and
  • one of the following conditions apply:

The employee is subject to testing because

  • the employer has specific, objective grounds to believe the employee’s work performance is impaired due to the presence of such substances in the body; or
  • while on duty, the employee is involved in an accident or incident as described by the employer’s policy.

The employer determines that employees in positions with any of the following responsibilities are subject to testing:

  • Providing security on state property or ensuring public safety;
  • Administering or dispensing medication; or
  • Utilizing a firearm as called for in performance of job duties.

Medical marijuana

  • An employee of the District government who has been authorized by a licensed physician to use marijuana for medicinal purposes is permitted to do so in accordance with applicable laws, rules and regulations of their state of residence. Refer to DCHR Instruction No. 4-32 – Marijuana and the District’s Drug & Alcohol Testing.
  • The use of medical marijuana for a qualifying medical condition or to relieve side effects of qualifying medical treatment, is to be treated as any other form of prescription medication as it relates to the District government’s drug testing requirements.
  • In the event a candidate for or an employee in a safety-sensitive position has been authorized to use medical marijuana by a licensed physician, he or she at the time of any required drug test MUST inform the intake coordinators and the collectors about their participation in the medical marijuana program;
  • present a copy of a valid Physician’s Recommendation for the use of medical marijuana; and
  • present the drug testing officials with a valid medical marijuana registration identification card (issued by the D.C. Department of Health) or other equivalent documentation issued by an appropriate state agency.

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