Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. SB 1358
       
       
       
       
       
       
                                Barcode 875634                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/01/2012           .                                
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       The Committee on Governmental Oversight and Accountability
       (Benacquisto) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 357 - 582
    4  and insert:
    5         (10) EMPLOYER PROTECTION.—
    6         (h) An employer may discharge or discipline shall refer an
    7  employee following with a first-time positive confirmed drug
    8  test result. If the employer does not discharge the employee,
    9  the employer may refer the employee to an employee assistance
   10  program or an alcohol and drug rehabilitation program in which
   11  the employee may participate at the expense of the employee or
   12  pursuant to a health insurance plan, unless such employee is
   13  discharged as provided in subparagraph (8)(n)3. If the results
   14  of a subsequent confirmed drug test are positive, the employer
   15  may discharge or discipline the employee.
   16         1.If an employer refers an employee to an employee
   17  assistance program or an alcohol and drug rehabilitation
   18  program, the employer must determine whether the employee is
   19  able to safely and effectively perform the job duties assigned
   20  to the employee while the employee participates in such a
   21  program.
   22         2. An employee whose assigned duties require the employee
   23  to carry a firearm, work closely with an employee who carries a
   24  firearm, perform life-threatening procedures, work with heavy or
   25  dangerous machinery, work as a safety inspector, work with
   26  children, work with detainees in the correctional system, work
   27  with confidential information or documents pertaining to
   28  criminal investigations, work with controlled substances, hold a
   29  position subject to s. 110.1127, or hold a position in which a
   30  momentary lapse in attention could result in injury or death to
   31  another person, is deemed unable to safely and effectively
   32  perform the job duties assigned to the employee while the
   33  employee participates in the employee assistance program or
   34  alcohol and drug rehabilitation program.
   35         3.If an employer refers an employee to an employee
   36  assistance program or an alcohol and drug rehabilitation program
   37  and the employer determines that the employee is unable, or the
   38  employee is deemed unable, to safely and effectively perform the
   39  job duties assigned to the employee before he or she completes
   40  such a program, the employer shall place the employee in a job
   41  assignment that the employer determines the employee can safely
   42  and effectively perform while participating in the program.
   43         4. If a job assignment in which the employee may safely and
   44  effectively perform is unavailable, the employer shall place the
   45  employee on leave status while the employee is participating in
   46  an employee assistance program or an alcohol and drug
   47  rehabilitation program. If placed on leave status without pay,
   48  the employee may use accumulated leave credits before being
   49  placed on leave without pay.
   50         (i) Nothing in This section does not shall be construed to
   51  prohibit an employer from conducting medical screening or other
   52  tests required by any statute, rule, or regulation for the
   53  purpose of monitoring exposure of employees to toxic or other
   54  unhealthy substances in the workplace or in the performance of
   55  job responsibilities. Such screening or tests shall be limited
   56  to the specific substances expressly identified in the
   57  applicable statute, rule, or regulation, unless prior written
   58  consent of the employee is obtained for other tests.
   59         (j) An employer shall place a safety-sensitive position
   60  employee whose drug test result is confirmed positive in a non
   61  safety-sensitive position, or if such a position is unavailable,
   62  on leave status while the employee participates in an employee
   63  assistance program or an alcohol and drug rehabilitation
   64  program. If placed on leave status without pay, the employee
   65  shall be permitted to use any accumulated leave credits prior to
   66  being placed on leave without pay.
   67         (k) A special risk employee may be discharged or
   68  disciplined on the first positive confirmed drug test result
   69  when illicit drugs, pursuant to s. 893.13, are confirmed. No
   70  special risk employee shall be permitted to continue work in a
   71  safety-sensitive position, but may be placed either in a non
   72  safety-sensitive position or on leave status while participating
   73  in an employee assistance program or an alcohol and drug
   74  rehabilitation program.
   75         Section 2. Paragraphs (j) and (o) of subsection (1),
   76  subsection (2), paragraph (g) of subsection (7), and subsections
   77  (11), (13), (14), and (15) of section 440.102, Florida Statutes,
   78  are amended to read:
   79         440.102 Drug-free workplace program requirements.—The
   80  following provisions apply to a drug-free workplace program
   81  implemented pursuant to law or to rules adopted by the Agency
   82  for Health Care Administration:
   83         (1) DEFINITIONS.—Except where the context otherwise
   84  requires, as used in this act:
   85         (j) “Job applicant” means a person who has applied for a
   86  position with an employer and has been offered employment
   87  conditioned upon successfully passing a drug test, and may have
   88  begun work pending the results of the drug test. For a public
   89  employer, “job applicant” means only a person who has applied
   90  for a special-risk or mandatory-testing safety-sensitive
   91  position.
   92         (o) “Mandatory-testing position” means, with respect to a
   93  public employer, a job assignment that requires the employee to
   94  carry a firearm, work closely with an employee who carries a
   95  firearm, perform life-threatening procedures, work with heavy or
   96  dangerous machinery, work as a safety inspector, work with
   97  children, work with detainees in the correctional system, work
   98  with confidential information or documents pertaining to
   99  criminal investigations, or work with controlled substances; a
  100  job assignment that requires an employee security background
  101  check pursuant to s. 110.1127; or a job assignment in which a
  102  momentary lapse in attention could result in injury or death to
  103  another person “Safety-sensitive position” means, with respect
  104  to a public employer, a position in which a drug impairment
  105  constitutes an immediate and direct threat to public health or
  106  safety, such as a position that requires the employee to carry a
  107  firearm, perform life-threatening procedures, work with
  108  confidential information or documents pertaining to criminal
  109  investigations, or work with controlled substances; a position
  110  subject to s. 110.1127; or a position in which a momentary lapse
  111  in attention could result in injury or death to another person.
  112         (2) DRUG TESTING.—An employer may test an employee or job
  113  applicant for any drug described in paragraph (1)(c). In order
  114  to qualify as having established a drug-free workplace program
  115  under this section and to qualify for the discounts provided
  116  under s. 627.0915 and deny medical and indemnity benefits under
  117  this chapter, an employer must, at a minimum, implement drug
  118  testing that conforms to the standards and procedures
  119  established in this section and all applicable rules adopted
  120  pursuant to this section as required in subsection (4). However,
  121  an employer does not have a legal duty under this section to
  122  request an employee or job applicant to undergo drug testing. If
  123  an employer fails to maintain a drug-free workplace program in
  124  accordance with the standards and procedures established in this
  125  section and in applicable rules, the employer is ineligible for
  126  discounts under s. 627.0915. However, an employer qualifies for
  127  discounts under s. 627.0915 if the employer maintains a drug
  128  free workplace program that is broader in scope than that
  129  provided for by the standards and procedures established in this
  130  section. An employer who qualifies All employers qualifying for
  131  and receives receiving discounts provided under s. 627.0915 must
  132  be reported annually by the insurer to the department.
  133         (7) EMPLOYER PROTECTION.—
  134         (g) This section does not prohibit an employer from
  135  conducting medical screening or other tests required, permitted,
  136  or not disallowed by any statute, rule, or regulation for the
  137  purpose of monitoring exposure of employees to toxic or other
  138  unhealthy substances in the workplace or in the performance of
  139  job responsibilities. Such screening or testing is limited to
  140  the specific substances expressly identified in the applicable
  141  statute, rule, or regulation, unless prior written consent of
  142  the employee is obtained for other tests. Such screening or
  143  testing need not be in compliance with the rules adopted by the
  144  Agency for Health Care Administration under this chapter or
  145  under s. 112.0455. A public employer may, through the use of an
  146  unbiased selection procedure, conduct random drug tests of
  147  employees occupying mandatory-testing safety-sensitive or
  148  special-risk positions if the testing is performed in accordance
  149  with drug-testing rules adopted by the Agency for Health Care
  150  Administration and the department. If applicable, random drug
  151  testing must be specified in a collective bargaining agreement
  152  as negotiated by the appropriate certified bargaining agent
  153  before such testing is implemented.
  154         (11) PUBLIC EMPLOYEES IN MANDATORY-TESTING SAFETY-SENSITIVE
  155  OR SPECIAL-RISK POSITIONS.—
  156         (a) If an employee who is employed by a public employer in
  157  a mandatory-testing safety-sensitive position enters an employee
  158  assistance program or drug rehabilitation program, the employer
  159  must assign the employee to a position other than a mandatory
  160  testing safety-sensitive position or, if such position is not
  161  available, place the employee on leave while the employee is
  162  participating in the program. However, the employee shall be
  163  permitted to use any accumulated annual leave credits before
  164  leave may be ordered without pay.
  165         (b) An employee who is employed by a public employer in a
  166  special-risk position may be discharged or disciplined by a
  167  public employer for the first positive confirmed test result if
  168  the drug confirmed is an illicit drug under s. 893.03. A
  169  special-risk employee who is participating in an employee
  170  assistance program or drug rehabilitation program may not be
  171  allowed to continue to work in any special-risk or mandatory
  172  testing safety-sensitive position of the public employer, but
  173  may be assigned to a position other than a mandatory-testing
  174  safety-sensitive position or placed on leave while the employee
  175  is participating in the program. However, the employee shall be
  176  permitted to use any accumulated annual leave credits before
  177  leave may be ordered without pay.
  178         (13) COLLECTIVE BARGAINING RIGHTS.—
  179         (a) This section does not eliminate the bargainable rights
  180  as provided in the collective bargaining process if applicable.
  181         (b) Drug-free workplace program requirements pursuant to
  182  this section shall be a mandatory topic of negotiations with any
  183  certified collective bargaining agent for nonfederal public
  184  sector employers that operate under a collective bargaining
  185  agreement.
  186         (13)(14) APPLICABILITY.—A drug testing policy or procedure
  187  adopted by an employer pursuant to this chapter shall be applied
  188  equally to all employee classifications where the employee is
  189  subject to workers’ compensation coverage.
  190         (14)(15) STATE CONSTRUCTION CONTRACTS.—Each construction
  191  contractor regulated under part I of chapter 489, and each
  192  electrical contractor and alarm system contractor regulated
  193  under part II of chapter 489, who contracts to perform
  194  construction work under a state contract for educational
  195  facilities governed by chapter 1013, for public property or
  196  publicly owned buildings governed by chapter 255, or for state
  197  correctional facilities governed by chapter 944 shall implement
  198  a drug-free workplace program under this section.
  199         Section 3. Section 944.474, Florida Statutes, is amended to
  200  read:
  201         944.474 Legislative intent; employee wellness program; drug
  202  and alcohol testing.—
  203         (1) It is the intent of the Legislature that the state
  204  correctional system provide a safe and secure environment for
  205  both inmates and staff. A healthy workforce is a productive
  206  workforce, and security of the state correctional system can
  207  best be provided by strong and healthy employees. The Department
  208  of Corrections may develop and implement an employee wellness
  209  program. The program may include, but is not limited to,
  210  wellness education, smoking cessation, nutritional education,
  211  and overall health-risk reduction, including the effects of
  212  using drugs and alcohol.
  213         (2) An employee Under no circumstances shall employees of
  214  the department may not test positive for illegal use of
  215  controlled substances. An employee of the department may not be
  216  under the influence of alcohol while on duty. In order to ensure
  217  that these prohibitions are adhered to by all employees of the
  218  department and notwithstanding s. 112.0455, the department may
  219  develop a program for the drug testing of all job applicants and
  220  for the random drug testing of all employees. The department may
  221  randomly evaluate employees for the contemporaneous use or
  222  influence of alcohol through the use of alcohol tests and
  223  observation methods. Notwithstanding s. 112.0455, the department
  224  may develop a program for the reasonable suspicion drug testing
  225  of employees who are in mandatory-testing safety-sensitive or
  226  special risk positions, as defined in s. 112.0455(5) or s.
  227  440.102(1)(o), respectively, for the controlled substances
  228  listed in s. 893.03(3)(d). The reasonable suspicion drug testing
  229  authorized by this subsection shall be conducted in accordance
  230  with s. 112.0455, but may also include testing upon reasonable
  231  suspicion based on violent acts or violent behavior of an
  232  employee who is on or off duty. The department shall adopt rules
  233  pursuant to ss. 120.536(1) and 120.54 that are necessary to
  234  administer this subsection.
  235  
  236  ================= T I T L E  A M E N D M E N T ================
  237  And the title is amended as follows:
  238  
  239         Delete lines 13 - 57
  240  and insert:
  241  
  242         safety-sensitive position; providing that an agency
  243         may discharge or discipline an employee following a
  244         first-time positive confirmed drug test result;
  245         authorizing an agency to refer an employee to an
  246         employee assistance program or an alcohol and drug
  247         rehabilitation program if the employee is not
  248         discharged; requiring participation in an employee
  249         assistance program or an alcohol and drug
  250         rehabilitation program at the employee’s own expense
  251         or pursuant to a health insurance plan; requiring the
  252         employer to determine if the employee is able to
  253         safely and effectively perform the job duties assigned
  254         to the employee before the employee enters the
  255         employee assistance program or the alcohol and drug
  256         rehabilitation program; deeming that certain specified
  257         job activities cannot be performed safely and
  258         effectively while the employee is participating in the
  259         employee assistance program or the alcohol and drug
  260         rehabilitation program; requiring the employer to
  261         transfer the employee to a job assignment that he or
  262         she can perform safely and effectively while the
  263         employee participates in the employee assistance
  264         program or the alcohol and drug rehabilitation
  265         program; requiring the employer to place the employee
  266         on leave status while the employee is participating in
  267         an employee assistance program or an alcohol and drug
  268         rehabilitation program if such a position is
  269         unavailable; authorizing the employee to use
  270         accumulated leave credits before being placed on leave
  271         without pay; amending s. 440.102, F.S.; revising the
  272         definition of the term “job applicant”; removing the
  273         definition of the term “safety-sensitive position” and
  274         replacing it with the definition for the term
  275         “mandatory-testing position”; providing that an
  276         employer remains qualified for an insurer rate plan
  277         that discounts rates for worker’s compensation and
  278         employer’s liability insurance policies if the
  279         employer maintains a drug-free workplace program that
  280         is broader in scope than that provided for by the
  281         standards and procedures established in the act;
  282         authorizing a public employer, using an unbiased
  283         selection procedure, to conduct random drug tests of
  284         employees occupying mandatory-testing or special-risk
  285         positions if the testing is performed in accordance
  286         with drug-testing rules adopted by the Agency for
  287         Health Care Administration; requiring that a public
  288         sector employer assign a public sector employee to a
  289         position other than a mandatory-testing position if
  290         the employee enters an employee assistance program or
  291         alcohol and drug rehabilitation program; removing
  292         provisions