Florida Senate - 2011 SB 302 By Senator Bennett 21-00405A-11 2011302__ 1 A bill to be entitled 2 An act relating to the drug testing of potential and 3 existing beneficiaries for unemployment compensation; 4 creating s. 443.093, F.S.; creating the Drug 5 Deterrence Pilot Program within the Agency for 6 Workforce Innovation; providing legislative intent; 7 providing the scope of eligibility for benefits; 8 designating the specific workforce board that is 9 subject to the pilot program; defining terms; 10 providing for the screening of individuals to 11 determine which individuals must be tested; providing 12 for notice; providing terms of disqualification of 13 benefits; requiring the agency to supply information 14 on drug treatment programs; providing for 15 authentication and the admissibility of drug tests in 16 unemployment compensation hearings; creating a 17 rebuttable presumption; providing testing procedures; 18 providing for the preservation of test samples; 19 providing for the retesting of test samples; providing 20 for an appeals process; authorizing the agency to 21 adopt rules; directing the agency to submit a report 22 to the Governor and Legislature; directing the Office 23 of Program Policy Analysis and Government 24 Accountability to submit a report to the Governor and 25 Legislature; providing for future expiration of the 26 program; providing an effective date. 27 28 Be It Enacted by the Legislature of the State of Florida: 29 30 Section 1. Section 443.093, Florida Statutes, is created to 31 read: 32 443.093 Drug Deterrence Pilot Program.— 33 (1) PURPOSE.—It is the intent of the Legislature to create 34 within the Agency for Workforce Innovation the Drug Deterrence 35 Pilot Program. The Legislature finds that illegal drug use is a 36 threat to public safety. The purpose of this pilot program is to 37 require the drug testing of certain individuals as a condition 38 for unemployment benefits in order to prevent the enabling of 39 drug use with government funds, thereby protecting the public. 40 (2) SCOPE.—In addition to any benefit eligibility or 41 disqualification conditions prescribed in this chapter, any 42 individual making a claim for benefits or receiving benefits and 43 residing within Regional Workforce Board 18 is subject to this 44 section. As a condition to making a claim for benefits or 45 accepting receipt of benefits, an individual must agree to 46 comply with the terms of this section, including, but not 47 limited to, agreeing to be subject to drug testing. 48 (3) DEFINITIONS.—As used in this section, the term: 49 (a) “Agency” means the Agency for Workforce Innovation. 50 (b) “Drug” means an amphetamine, a cannabinoid, cocaine, 51 phencyclidine (PCP), a hallucinogen, methaqualone, an opiate, a 52 barbiturate, a benzodiazepine, a synthetic narcotic, a designer 53 drug, or a metabolite of any of the substances listed in this 54 paragraph. 55 (c) “Drug test” or “test” means any chemical, biological, 56 or physical instrumental analysis for the purpose of determining 57 the presence or absence of a drug or its metabolites. 58 (4) CREATION.— 59 (a) The Agency for Workforce Innovation shall implement an 60 unemployment compensation drug testing pilot program with 61 Regional Workforce Board 18 by October 1, 2011. 62 (b) In creating and implementing the program, the agency 63 shall: 64 1. Develop a screening mechanism used to assess whether a 65 person is likely to be an illicit drug user; 66 2. Require that individuals claiming or receiving benefits 67 who are assessed as likely illicit drug users to be subject to 68 drug testing; 69 3. Make a determination of eligibility under s. 443.091 and 70 disqualification under s. 443.101 before an applicant is 71 selected for drug testing; 72 4. Provide notice of the potential for drug testing to 73 individuals claiming and receiving benefits; and 74 5. Require an individual to be tested to sign an 75 acknowledgement that he or she has received notice of the 76 agency’s drug testing policy and that he or she has a right to 77 refuse to take the drug test. 78 (5) TESTING; USE OF RESULTS.— 79 (a) An individual is disqualified from receiving or 80 continuing to receive benefits upon: 81 1. Refusing to submit to testing under this section; or 82 2. Upon testing positive for drugs as a result of a test 83 under this section. 84 (b) If the individual fails the drug test required under 85 this section, the individual is not entitled to unemployment 86 benefits for up to 52 weeks, under rules adopted by the agency, 87 and until he or she has earned income of at least 17 times his 88 or her weekly benefit amount. 89 (c) The agency shall provide any individual who tests 90 positive with information on drug treatment programs that may be 91 available in the area in which he or she resides; however, the 92 agency or the state is not responsible for providing or paying 93 for drug treatment as part of the testing conducted under this 94 section. 95 (6) TESTING.— 96 (a) All specimen collection and testing for drugs under 97 this section shall be performed in accordance with the following 98 procedures: 99 1. A sample shall be collected with due regard to the 100 privacy of the individual providing the sample, and in a manner 101 reasonably calculated to prevent substitution or contamination 102 of the sample. 103 2. Specimen collection must be documented, and the 104 documentation procedures must include: 105 a. Labeling of specimen containers so as to reasonably 106 preclude the likelihood of erroneous identification of test 107 results. 108 b. A form for the person being tested to provide any 109 information that he or she considers relevant to the test, 110 including identification of currently or recently used 111 prescription or nonprescription medication or other relevant 112 medical information. The form must provide notice of the most 113 common medications by brand name or common name, as applicable, 114 as well as by chemical name, which may alter or affect a drug 115 test. The providing of information does not preclude the 116 administration of the drug test, but must be taken into account 117 in interpreting any positive, confirmed test result. 118 119 Specimen collection, storage, and transportation to the testing 120 site must be performed in a manner that reasonably precludes 121 contamination or adulteration of specimens. 122 (b) Every specimen that produces a positive test result 123 must be preserved for at least 6 months. However, if the tested 124 person undertakes an administrative or legal challenge to the 125 test result, the sample shall be preserved until the case or 126 administrative appeal is settled. 127 (c) An individual who tests positive for drugs may refute 128 and rule out a false positive test by having the same sample 129 retested by gas chromatography using mass spectrometry, gas 130 chromatography, high-performance liquid chromatography, or an 131 equally or more specific test. 132 (d) Test results and chain-of-custody documentation 133 provided to the agency by an approved drug-testing laboratory is 134 self-authenticating and admissible in unemployment compensation 135 hearings, and such evidence creates a rebuttable presumption 136 that the individual used, or was using, drugs. 137 (7) APPEAL.—An individual who is deemed ineligible for, or 138 is disqualified from, receiving unemployment benefits because of 139 a positive drug test has a right to appeal the agency’s decision 140 pursuant to s. 443.151(4). 141 (8) RULES.—The agency shall adopt rules pursuant to ss. 142 120.536(1) and 120.54 to administer this section. 143 (9) REPORT.— 144 (a) The agency shall submit a report to the Governor, the 145 President of the Senate, and the Speaker of the House of 146 Representatives by January 1, 2013, which, at a minimum: 147 1. Gives the number of individuals tested, the substances 148 tested for, and the results of the testing; 149 2. Gives the number of individuals denied unemployment 150 compensation benefits for failing a drug test upon claiming 151 benefits and the number of individuals for whom benefits were 152 terminated for failing a test while receiving benefits; 153 3. Describes any obstacles to implementation of the 154 program; 155 4. Gives the number of applicants who refused to be tested; 156 5. Gives the number of weeks and the amount of benefits for 157 which individuals would have been eligible if they had not 158 tested positive or refused to take the test; 159 6. Estimates the costs of the drug testing program, 160 including the average cost of individual tests and the cost of 161 administering the program; 162 7. Estimates savings, if any, under the program to the 163 Unemployment Compensation Trust Fund; and 164 8. Includes a recommendation on whether the Legislature 165 should maintain the program. 166 (b) Before the 2013 Regular Session of the Legislature, the 167 Office of Program Policy Analysis and Government Accountability 168 shall review and evaluate the Drug Deterrence Pilot Program and 169 submit a report to the Governor, the President of the Senate, 170 and the Speaker of the House of Representatives. The report must 171 evaluate whether the program is cost-effective and deters drug 172 users from receiving benefits and make a recommendation to the 173 Legislature to abolish, continue, reorganize, or expand the 174 program. 175 (10) EXPIRATION.—This section expires June 30, 2013. 176 Section 2. This act shall take effect July 1, 2011.