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House Bill 1755

Florida House of Representatives - 1997 HB 1755 By Representative Cosgrove 1 A bill to be entitled 2 An act relating to drug-free workplace program 3 requirements; amending s. 440.09, F.S.; 4 providing for rebutting a presumption under 5 certain circumstances; including alcohol 6 testing within a provision establishing a 7 presumption; amending s. 440.102, F.S.; 8 amending definitions; allowing employers to 9 conduct onsite initial drug testing of 10 employees; providing requirements and 11 procedures for conducting such tests and for 12 reporting and preserving the results; providing 13 an effective date. 14 15 Be It Enacted by the Legislature of the State of Florida: 16 17 Section 1. Paragraphs (b) and (c) of subsection (7) of 18 section 440.09, Florida Statutes, are amended to read: 19 440.09 Coverage.-- 20 (7) 21 (b) If the employee has, at the time of the injury, a 22 blood alcohol level equal to or greater than the level 23 specified in s. 316.193, or if the employee has a positive 24 confirmation of a drug as defined in this act, it is presumed 25 that the injury was occasioned primarily by the intoxication 26 of, or by the influence of the drug upon, the employee. In the 27 presence of a drug-free workplace program, this presumption 28 may be rebutted by the employee with evidence beyond a 29 reasonable doubt that the intoxication or influence of the 30 drug did not contribute to the injury. In the absence of a 31 drug-free workplace program, this presumption may be rebutted 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 by clear and convincing evidence that the intoxication or 2 influence of the drug did not contribute to the injury. 3 Percent by weight of alcohol in the blood must be based upon 4 grams of alcohol per 100 milliliters of blood. If the results 5 are positive, the testing facility must maintain the specimen 6 for a minimum of 90 days. Blood serum may be used for testing 7 purposes under this chapter; however, if this test is used, 8 the presumptions under this section do not arise unless the 9 blood alcohol level is proved to be medically and 10 scientifically equivalent to or greater than the comparable 11 blood alcohol level that would have been obtained if the test 12 were based on percent by weight of alcohol in the blood. 13 However, if, before the accident, the employer had actual 14 knowledge of and expressly acquiesced in the employee's 15 presence at the workplace while under the influence of such 16 alcohol or drug, the presumptions specified in this subsection 17 do not apply. 18 (c) If the injured worker refuses to submit to a drug 19 and alcohol test, it shall be presumed in the absence of clear 20 and convincing evidence to the contrary that the injury was 21 occasioned primarily by the influence of drugs or alcohol. 22 Section 2. Section 440.102, Florida Statutes, 1996 23 Supplement, is amended to read: 24 440.102 Drug-free workplace program requirements.--The 25 following provisions apply to a drug-free workplace program 26 implemented under the pursuant to law or under to rules 27 adopted by the Agency for Health Care Administration: 28 (1) DEFINITIONS.--Except where the context otherwise 29 requires, As used in this section, the term act: 30 (a) "Chain of custody" refers to the methodology of 31 tracking specified materials or substances for the purpose of 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 maintaining control and accountability from initial collection 2 to final disposition for all such materials or substances and 3 providing for accountability at each stage in handling, 4 testing, and storing specimens and reporting test results. 5 (b) "Confirmation test," "confirmed test," or 6 "confirmed drug test" means a second analytical procedure used 7 to identify the presence of a specific drug or metabolite in a 8 specimen, which test must be different in scientific principle 9 from that of the initial test procedure and must be capable of 10 providing requisite specificity, sensitivity, and quantitative 11 accuracy. 12 (c) "Drug" means alcohol, including a distilled 13 spirit, wine, a malt beverage, or an intoxicating liquor; an 14 amphetamine; a cannabinoid; cocaine; phencyclidine (PCP); a 15 hallucinogen; methaqualone; an opiate; a barbiturate; a 16 benzodiazepine; a synthetic narcotic; a designer drug; a 17 controlled, dangerous substance; a controlled-substance 18 analog; or a volatile substance that produces the 19 psychological or physiological effect of a controlled, 20 dangerous substance through deliberate inhalation or 21 ingestion; or a metabolite of any of the substances listed in 22 this paragraph. An employer may test an individual for any or 23 all of such drugs. 24 (d) "Drug rehabilitation program" means a service 25 provider, established under pursuant to s. 397.311(28), that 26 provides confidential, timely, and expert identification, 27 assessment, and resolution of employee drug abuse. 28 (e) "Drug test" or "test" means any chemical, 29 biological, or physical instrumental analysis or device 30 administered, approved by a laboratory certified by the United 31 States Food and Drug Administration Department of Health and 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 Human Services or licensed by the Agency for Health Care 2 Administration, which is administered for the purpose of 3 determining the presence or absence of a drug or its 4 metabolites. 5 (f) "Employee" means any person who works for salary, 6 wages, or other remuneration for an employer. 7 (g) "Employee assistance program" means an established 8 program capable of providing expert assessment of employee 9 personal concerns; confidential and timely identification 10 services with regard to employee drug abuse; referrals of 11 employees for appropriate diagnosis, treatment, and 12 assistance; and followup services for employees who 13 participate in the program or require monitoring after 14 returning to work. If, in addition to the above activities, an 15 employee assistance program provides diagnostic and treatment 16 services, these services shall in all cases be provided by 17 service providers pursuant to s. 397.311(28). 18 (h) "Employer" means a person or entity that employs a 19 person and that is covered by the Workers' Compensation Law. 20 (i) "Initial drug test" means a sensitive, rapid, and 21 reliable procedure to identify negative and presumptive 22 positive specimens, using an immunoassay procedure or an 23 equivalent, or a more accurate scientifically accepted method 24 approved by the United States Food and Drug Administration or 25 the Agency for Health Care Administration as such more 26 accurate technology becomes available in a cost-effective 27 form. 28 (j) "Job applicant" means a person who has applied for 29 a position with an employer and has been offered employment 30 conditioned upon successfully passing a drug test, and may 31 have begun work pending the results of the drug test. For a 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 public employer, "job applicant" means only a person who has 2 applied for a special-risk or safety-sensitive position. 3 (k) "Medical review officer" or "MRO" means a licensed 4 physician, employed with or contracted with an employer, who 5 has knowledge of substance abuse disorders, laboratory testing 6 procedures, and chain of custody collection procedures; who 7 verifies positive, confirmed test results; and who has the 8 necessary medical training to interpret and evaluate an 9 employee's positive test result in relation to the employee's 10 medical history or any other relevant biomedical information. 11 (l) "Prescription or nonprescription medication" means 12 a drug or medication obtained pursuant to a prescription as 13 defined by s. 893.02 or a medication that is authorized 14 pursuant to federal or state law for general distribution and 15 use without a prescription in the treatment of human diseases, 16 ailments, or injuries. 17 (m) "Public employer" means any agency within state, 18 county, or municipal government that employs individuals for a 19 salary, wages, or other remuneration. 20 (n) "Reasonable-suspicion drug testing" means drug 21 testing based on a belief that an employee is using or has 22 used drugs in violation of the employer's policy drawn from 23 specific objective and articulable facts and reasonable 24 inferences drawn from those facts in light of experience. 25 Among other things, such facts and inferences may be based 26 upon: 27 1. Observable phenomena while at work, such as direct 28 observation of drug use or of the physical symptoms or 29 manifestations of being under the influence of a drug. 30 2. Abnormal conduct or erratic behavior while at work 31 or a significant deterioration in work performance. 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 3. A report of drug use, provided by a reliable and 2 credible source. 3 4. Evidence that an individual has tampered with a 4 drug test during his employment with the current employer. 5 5. Information that an employee has caused, 6 contributed to, or been involved in an accident while at work. 7 6. Evidence that an employee has used, possessed, 8 sold, solicited, or transferred drugs while working or while 9 on the employer's premises or while operating the employer's 10 vehicle, machinery, or equipment. 11 (o) "Safety-sensitive position" means, with respect to 12 a public employer, a position in which a drug impairment 13 constitutes an immediate and direct threat to public health or 14 safety, such as a position that requires the employee to carry 15 a firearm, perform life-threatening procedures, work with 16 confidential information or documents pertaining to criminal 17 investigations, or work with controlled substances; a position 18 subject to s. 110.1127; or a position in which a momentary 19 lapse in attention could result in injury or death to another 20 person. 21 (p) "Special-risk position" means, with respect to a 22 public employer, a position that is required to be filled by a 23 person who is certified under chapter 633 or chapter 943. 24 (q) "Specimen" means tissue, hair, or a product of the 25 human body which is capable of revealing the presence of drugs 26 or their metabolites, as approved by the United States Food 27 and Drug Administration or the Agency for Health Care 28 Administration. 29 (2) DRUG TESTING.--An employer may test an employee or 30 job applicant for any drug described in paragraph (1)(c). In 31 order to qualify as having established a drug-free workplace 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 program that which affords an employer the ability to qualify 2 for the discounts provided under s. 627.0915 and deny medical 3 and indemnity benefits, under this chapter all drug testing 4 conducted by employers must shall be in conformity with the 5 standards and procedures established in this section and all 6 applicable rules adopted under pursuant to this section. 7 However, an employer does not have a legal duty under this 8 section to request an employee or job applicant to undergo 9 drug testing. If an employer fails to maintain a drug-free 10 workplace program in accordance with the standards and 11 procedures established in this section and in applicable 12 rules, the employer is ineligible shall not be eligible for 13 discounts under s. 627.0915. All employers qualifying for and 14 receiving discounts provided under s. 627.0915 must be 15 reported annually by the insurer to the division. 16 (3) NOTICE TO EMPLOYEES AND JOB APPLICANTS.-- 17 (a) One time only, prior to testing, an employer shall 18 give all employees and job applicants for employment a written 19 policy statement that which contains: 20 1. A general statement of the employer's policy on 21 employee drug use, which must identify: 22 a. The types of drug testing an employee or job 23 applicant may be required to submit to, including 24 reasonable-suspicion drug testing or drug testing conducted on 25 any other basis. 26 b. The actions that the employer may take against an 27 employee or job applicant on the basis of a positive confirmed 28 drug test result. 29 2. A statement advising the employee or job applicant 30 of the existence of this section. 31 3. A general statement concerning confidentiality. 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 4. Procedures for employees and job applicants to 2 confidentially report confidentially to a medical review 3 officer, both before and after being tested, the use of 4 prescription or nonprescription medications to a medical 5 review officer both before and after being tested. 6 5. A list of the most common medications, by brand 7 name or common name, as applicable, as well as by chemical 8 name, which may alter or affect a drug test. A list of such 9 medications as developed by the Agency for Health Care 10 Administration must shall be available to employers through 11 the Division of Workers' Compensation of the Department of 12 Labor and Employment Security. 13 6. The consequences of refusing to submit to a drug 14 test. 15 7. A representative sampling of names, addresses, and 16 telephone numbers of employee assistance programs and local 17 drug rehabilitation programs. 18 8. A statement that an employee or job applicant who 19 receives a positive confirmed test result may contest or 20 explain the result to the medical review officer within 5 21 working days after receiving written notification of the test 22 result; that if an employee's or job applicant's explanation 23 or challenge is unsatisfactory to the medical review officer, 24 the medical review officer shall report a positive test result 25 back to the employer; and that a person may contest the drug 26 test result pursuant to law or to rules adopted by the Agency 27 for Health Care Administration. 28 9. A statement informing the employee or job applicant 29 of his responsibility to notify the laboratory of any 30 administrative or civil action brought under pursuant to this 31 section. 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 10. A list of all drugs for which the employer will 2 test, described by brand name or common name, as applicable, 3 as well as by chemical name. 4 11. A statement regarding any applicable collective 5 bargaining agreement or contract and the right to appeal to 6 the Public Employees Relations Commission or applicable court. 7 12. A statement notifying employees and job applicants 8 of their right to consult with a medical review officer for 9 technical information regarding prescription or 10 nonprescription medication. 11 (b) An employer that does not have having a 12 drug-testing program must shall ensure that at least 60 days 13 elapse between a general one-time notice to all employees that 14 a drug-testing program is being implemented and the beginning 15 of actual drug testing. An employer that has having a 16 drug-testing program in place before prior to July 1, 1990, 17 need is not required to provide a 60-day notice period. 18 (c) An employer shall include notice of drug testing 19 on vacancy announcements for positions for which drug testing 20 is required. A notice of the employer's drug-testing policy 21 must also be posted in an appropriate and conspicuous location 22 on the employer's premises, and copies of the policy must be 23 made available for inspection by the employees or job 24 applicants of the employer during regular business hours in 25 the employer's personnel office or other suitable locations. 26 (4) TYPES OF TESTING.-- 27 (a) An employer is required to conduct the following 28 types of drug tests: 29 1. Job applicant drug testing.--An employer must 30 require job applicants to submit to a drug test and may use a 31 9 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 refusal to submit to a drug test or a positive confirmed drug 2 test as a basis for refusing to hire a job applicant. 3 2. Reasonable-suspicion drug testing.--An employer 4 must require an employee to submit to reasonable-suspicion 5 drug testing. 6 3. Routine fitness-for-duty drug testing.--An employer 7 must require an employee to submit to a drug test if the test 8 is conducted as part of a routinely scheduled employee 9 fitness-for-duty medical examination that is part of the 10 employer's established policy or that is scheduled routinely 11 for all members of an employment classification or group. 12 4. Followup drug testing.--If the employee in the 13 course of employment enters an employee assistance program for 14 drug-related problems, or a drug rehabilitation program, the 15 employer must require the employee to submit to a drug test as 16 a followup to such program, unless the employee voluntarily 17 entered the program. In those cases, the employer has the 18 option to not require followup testing. If followup testing is 19 required, it must be conducted at least once a year for a 20 2-year period after completion of the program. Advance notice 21 of a followup testing date must not be given to the employee 22 to be tested. 23 (b) This subsection does not preclude a private 24 employer from conducting random testing, or any other lawful 25 testing, of employees for drugs. 26 (c) Limited testing of applicants, only if it is based 27 on a reasonable classification basis, is permissible in 28 accordance with law or with rules adopted by the Agency for 29 Health Care Administration. 30 31 10 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 (5) PROCEDURES AND EMPLOYEE PROTECTION.--All specimen 2 collection and testing for drugs under this section must shall 3 be performed in accordance with the following procedures: 4 (a) A sample must shall be collected with due regard 5 to the privacy of the individual providing the sample, and in 6 a manner reasonably calculated to prevent substitution or 7 contamination of the sample. 8 (b) Specimen collection must be documented, and the 9 documentation procedures must shall include: 10 1. Labeling of specimen containers so as to reasonably 11 preclude the likelihood of erroneous identification of test 12 results. 13 2. A form for the employee or job applicant to provide 14 any information that he or she considers relevant to the test, 15 including identification of currently or recently used 16 prescription or nonprescription medication or other relevant 17 medical information. The form must provide notice of the most 18 common medications by brand name or common name, as 19 applicable, as well as by chemical name, which may alter or 20 affect a drug test. The fact that the employee or job 21 applicant provides this providing of information does shall 22 not preclude the administration of the drug test, but must 23 shall be taken into account in interpreting any positive 24 confirmed test result. 25 (c) Specimen collection, storage, and transportation 26 to the testing site must shall be performed in a manner that 27 reasonably precludes contamination or adulteration of 28 specimens. 29 (d) Each initial drug test and confirmation test 30 conducted under this section, not including the taking or 31 collecting of a specimen to be tested, must shall be conducted 11 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 by a licensed or certified laboratory as described in 2 subsection (9) or on the employer's premises. If the initial 3 drug test is positive, a confirming test must be made at a 4 licensed or certified laboratory as described in subsection 5 (9) before any action can be taken against the employee or job 6 applicant. 7 (e) A specimen for a drug test may be taken or 8 collected by any of the following persons: 9 1. A physician, a physician assistant, a registered 10 professional nurse, a licensed practical nurse, or a nurse 11 practitioner or a certified paramedic who is present at the 12 scene of an accident for the purpose of rendering emergency 13 medical service or treatment;. 14 2. A qualified person employed by a licensed or 15 certified laboratory as described in subsection (9); or. 16 3. A person who is trained to administer an initial 17 drug test conducted on the employer's premises. 18 (f)1. An employer must utilize trained persons to 19 collect specimens and conduct drug tests on the employer's 20 premises. An employer may designate employees for this 21 training or may utilize any person who is so trained. 22 2. The employer's staff members who are responsible 23 for collecting and testing specimens on the employer's 24 premises must receive a minimum of 2 hours of training in the 25 preparation of the collection site, the collection of 26 specimens, the examination of specimens to detect any 27 tampering or adulteration, test administration, proper 28 labeling of specimens, and preservation of the chain of 29 custody of specimens. The employer must provide clear and 30 unambiguous written instructions on the collection and testing 31 of specimens. 12 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 3. An employer who performs specimen collection and 2 drug tests on the employer's premises must establish chain of 3 custody procedures to ensure proper recordkeeping, handling, 4 labeling, and identification of all specimens that are to be 5 tested. 6 4. When drug testing is conducted on the employer's 7 premises, if possible, the specimen must be kept in sight of 8 the employee or applicant who is being tested, and the test 9 administrator must conduct the test in front of the employee 10 or applicant. The employer's test administrator must provide 11 the results to the employee or applicant. The test 12 administrator must complete a chain of custody form and a form 13 that records the test results. If a drug test that is 14 conducted on the employer's premises cannot be conducted in 15 sight of the employee or applicant who is being tested, the 16 specimen must be secured, in sight of the employee or 17 applicant, with a forensic tamperproof seal until the test is 18 conducted. 19 5. An employer must have records available to prove 20 that the employer is conducting these tests. 21 (g)(f) A person who collects or takes a specimen for a 22 drug test shall collect an amount sufficient for two drug 23 tests as determined by the Agency for Health Care 24 Administration. 25 (h)(g) Every specimen that produces a positive, 26 confirmed test result must shall be placed in frozen storage 27 preserved by the licensed or certified laboratory that 28 conducted the confirmation test for a period of at least 210 29 days after the result of the test is was mailed or otherwise 30 delivered to the medical review officer. However, if an 31 employee or job applicant undertakes an administrative or 13 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 legal challenge to the test result, the employee or job 2 applicant shall notify the laboratory and the sample must 3 shall be retained by the laboratory until the case or 4 administrative appeal is settled. During the 180-day period 5 after written notification of a positive test result, the 6 employee or job applicant who has provided the specimen must 7 shall be permitted by the employer to have a portion of the 8 specimen retested, at the employee's or job applicant's 9 expense, at another laboratory, licensed and approved by the 10 Agency for Health Care Administration, chosen by the employee 11 or job applicant. The second laboratory must test for the drug 12 at a sensitivity equal to or greater than that applied by 13 sensitivity for the drug in question as the first laboratory 14 or employer's test administrator. The first laboratory that 15 performed the test for the employer is responsible for the 16 transfer of the portion of the specimen to be retested, and 17 for the integrity of the chain of custody during the such 18 transfer. 19 (i)(h) Within 5 working days after receipt of a 20 positive confirmed test result from the medical review 21 officer, an employer shall inform an employee or job applicant 22 in writing of the such positive test result, the consequences 23 of the such results, and the options that are available to the 24 employee or job applicant. The employer shall provide to the 25 employee or job applicant, upon request, a copy of the test 26 results. 27 (j)(i) Within 5 working days after receiving notice of 28 a positive confirmed test result, an employee or job applicant 29 may submit information to the employer explaining or 30 contesting the test result, and explaining why the result does 31 not constitute a violation of the employer's policy. 14 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 (k)(j) If the employee's or job applicant's 2 explanation or challenge of the positive test result is 3 unsatisfactory to the employer, a written explanation as to 4 why the employee's or job applicant's explanation is 5 unsatisfactory, along with the report of positive result, must 6 shall be provided by the employer to the employee or job 7 applicant; and all such documentation must shall be kept 8 confidential by the employer pursuant to subsection (8) and 9 must shall be retained by the employer for at least 1 year. 10 (l)(k) An employer may not discharge, discipline, 11 refuse to hire, discriminate against, or request or require 12 rehabilitation of an employee or job applicant on the sole 13 basis of a positive test result that has not been verified by 14 a confirmation test and by a medical review officer. 15 (m)(l) An employer that performs drug testing or 16 specimen collection shall use chain-of-custody procedures 17 established by the Agency for Health Care Administration to 18 ensure proper recordkeeping, handling, labeling, and 19 identification of all specimens tested. 20 (n)(m) An employer shall pay the cost of all drug 21 tests, initial and confirmation, which the employer requires 22 of employees. An employee or job applicant shall pay the 23 costs of any additional drug tests not required by the 24 employer. 25 (o)(n) An employer shall not discharge, discipline, or 26 discriminate against an employee solely upon the employee's 27 voluntarily seeking treatment, while under the employ of the 28 employer, for a drug-related problem if the employee has not 29 previously tested positive for drug use, entered an employee 30 assistance program for drug-related problems, or entered a 31 drug rehabilitation program. Unless otherwise provided by a 15 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 collective bargaining agreement, an employer may select the 2 employee assistance program or drug rehabilitation program if 3 the employer pays the cost of the employee's participation in 4 the program. 5 (p)(o) If an employer conducts drug testing that is 6 conducted based on reasonable suspicion, the employer must 7 shall promptly detail in writing the circumstances that which 8 formed the basis of the determination that reasonable 9 suspicion existed to warrant the testing. A copy of this 10 documentation must shall be given to the employee upon 11 request, and the original documentation must shall be kept 12 confidential by the employer pursuant to subsection (8) and 13 must shall be retained by the employer for at least 1 year. 14 (q)(p) All authorized remedial treatment, care, and 15 attendance provided by a health care provider to an injured 16 employee before medical and indemnity benefits are denied 17 under this section must be paid for by the carrier or 18 self-insurer. However, the carrier or self-insurer must have 19 given reasonable notice to all affected health care providers 20 that payment for treatment, care, and attendance provided to 21 the employee after a future date certain will be denied. A 22 health care provider, as defined in s. 440.13(1)(i), that 23 refuses, without good cause, to continue treatment, care, and 24 attendance before the provider receives notice of benefit 25 denial commits a misdemeanor of the second degree, punishable 26 as provided in s. 775.082 or s. 775.083. 27 (6) CONFIRMATION TESTING.-- 28 (a) If an initial drug test is negative, the employer 29 may in its sole discretion seek a confirmation test. 30 31 16 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 (b) Only licensed or certified laboratories as 2 described in subsection (9) may conduct confirmation drug 3 tests. 4 (c) All positive initial tests must shall be confirmed 5 using gas chromatography/mass spectrometry (GC/MS) or an 6 equivalent or more accurate scientifically accepted method 7 approved by the Agency for Health Care Administration or the 8 United States Food and Drug Administration as such technology 9 becomes available in a cost-effective form. 10 (d) If an initial drug test of an employee or job 11 applicant is confirmed as positive, the employer's medical 12 review officer shall provide technical assistance to the 13 employer and to the employee or job applicant for the purpose 14 of interpreting the test result to determine whether the 15 result could have been caused by prescription or 16 nonprescription medication taken by the employee or job 17 applicant. 18 (7) EMPLOYER PROTECTION.-- 19 (a) An employee or job applicant whose drug test 20 result is confirmed as positive in accordance with this 21 section is shall not, by virtue of the result alone, 22 considered be deemed to have a "handicap" or "disability" as 23 defined under federal, state, or local handicap and disability 24 discrimination laws. 25 (b) An employer who discharges or disciplines an 26 employee or refuses to hire a job applicant in compliance with 27 this section is considered to have discharged, disciplined, or 28 refused to hire for cause. 29 (c) A No physician-patient relationship is not created 30 between an employee or job applicant and an employer or any 31 person performing or evaluating a drug test, solely by the 17 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 establishment, implementation, or administration of a 2 drug-testing program. 3 (d) Nothing in This section does not shall be 4 construed to prevent an employer from establishing reasonable 5 work rules related to employee possession, use, sale, or 6 solicitation of drugs, including convictions for drug-related 7 offenses, and taking action based upon a violation of any of 8 those rules. 9 (e) This section does not operate retroactively, and 10 does not abrogate the right of an employer under state law to 11 conduct drug tests, or to implement employee drug-testing 12 programs; however, only those programs that meet the criteria 13 outlined in this section qualify for reduced rates under s. 14 627.0915. 15 (f) If an employee or a job applicant refuses to 16 submit to a drug test, the employer is not barred from 17 discharging or disciplining the employee or from refusing to 18 hire the job applicant. However, this paragraph does not 19 abrogate the rights and remedies of the employee or job 20 applicant as otherwise provided in this section. 21 (g) This section does not prohibit an employer from 22 conducting medical screening or other tests required, 23 permitted, or not disallowed by any statute, rule, or 24 regulation for the purpose of monitoring exposure of employees 25 to toxic or other unhealthful unhealthy substances in the 26 workplace or in the performance of job responsibilities. Such 27 screening or testing is limited to the specific substances 28 expressly identified in the applicable statute, rule, or 29 regulation, unless prior written consent of the employee is 30 obtained for other tests. Such screening or testing need not 31 be in compliance with the rules adopted by the Agency for 18 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 Health Care Administration under this chapter or under s. 2 112.0455. A public employer may, through the use of an 3 unbiased selection procedure, conduct random drug tests of 4 employees occupying safety-sensitive or special-risk positions 5 if the testing is performed in accordance with drug-testing 6 rules adopted by the Agency for Health Care Administration and 7 the Department of Labor and Employment Security. If 8 applicable, random drug testing must be specified in a 9 collective bargaining agreement as negotiated by the 10 appropriate certified bargaining agent before such testing is 11 implemented. 12 (h) A No cause of action does not shall arise in favor 13 of any person based upon the failure of an employer to 14 establish a program or policy for drug testing. 15 (8) CONFIDENTIALITY.-- 16 (a) Except as otherwise provided in this subsection, 17 all information, interviews, reports, statements, memoranda, 18 and drug test results, written or otherwise, which are 19 received or produced as a result of a drug-testing program are 20 confidential and exempt from the provisions of s. 119.07(1) 21 and s. 24(a), Art. I of the State Constitution, and may not be 22 used or received in evidence, obtained in discovery, or 23 disclosed in any public or private proceedings, except in 24 accordance with this section or in determining compensability 25 under this chapter. 26 (b) Employers, laboratories, medical review officers, 27 employee assistance programs, drug rehabilitation programs, 28 and their agents may not release any information concerning 29 drug test results obtained under pursuant to this section 30 without a written consent form signed voluntarily by the 31 person tested, unless such release is compelled by an 19 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 administrative law judge, a hearing officer, or a court of 2 competent jurisdiction pursuant to an appeal taken under this 3 section or is considered deemed appropriate by a professional 4 or occupational licensing board in a related disciplinary 5 proceeding. The consent form must contain, at a minimum: 6 1. The name of the person who is authorized to obtain 7 the information. 8 2. The purpose of the disclosure. 9 3. The precise information to be disclosed. 10 4. The duration of the consent. 11 5. The signature of the person authorizing release of 12 the information. 13 (c) Information on drug test results may shall not be 14 used in any criminal proceeding against the employee or job 15 applicant. Information released contrary to this section is 16 inadmissible as evidence in any such criminal proceeding. 17 (d) This subsection does not prohibit an employer, 18 agent of an employer, or laboratory conducting a drug test 19 from having access to employee drug test information or using 20 such information when consulting with legal counsel in 21 connection with actions brought under or related to this 22 section or when the information is relevant to its defense in 23 a civil or administrative matter. 24 (9) DRUG-TESTING STANDARDS FOR LABORATORIES.-- 25 (a) A laboratory may analyze initial or confirmation 26 test specimens only if: 27 1. The laboratory is licensed and approved by the 28 Agency for Health Care Administration using criteria 29 established by the United States Department of Health and 30 Human Services as general guidelines for modeling the state 31 drug-testing program under pursuant to this section or the 20 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 laboratory is certified by the United States Department of 2 Health and Human Services. 3 2. The laboratory has written procedures to ensure the 4 chain of custody. 5 3. The laboratory follows proper quality control 6 procedures, including, but not limited to: 7 a. The use of internal quality controls, including the 8 use of samples of known concentrations which are used to check 9 the performance and calibration of testing equipment, and 10 periodic use of blind samples for overall accuracy. 11 b. An internal review and certification process for 12 drug test results, conducted by a person qualified to perform 13 that function in the testing laboratory. 14 c. Security measures implemented by the testing 15 laboratory to preclude adulteration of specimens and drug test 16 results. 17 d. Other necessary and proper actions taken to ensure 18 reliable and accurate drug test results. 19 (b) A laboratory shall disclose to the medical review 20 officer a written positive confirmed test result report within 21 7 working days after receipt of the sample. All laboratory 22 reports of a drug test result must, at a minimum, state: 23 1. The name and address of the laboratory that 24 performed the test and the positive identification of the 25 person tested. 26 2. Positive results on confirmation tests only, or 27 negative results, as applicable. 28 3. A list of the drugs for which the drug analyses 29 were conducted. 30 31 21 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 4. The type of tests conducted for both initial tests 2 and confirmation tests and the minimum cutoff levels of the 3 tests. 4 5. Any correlation between medication reported by the 5 employee or job applicant pursuant to subparagraph (5)(b)2. 6 and a positive confirmed drug test result. 7 8 A report must not disclose the presence or absence of any drug 9 other than a specific drug and its metabolites listed in 10 pursuant to this section. 11 (c) The laboratory shall submit to the Agency for 12 Health Care Administration a monthly report with statistical 13 information regarding the testing of employees and job 14 applicants. The report must include information on the methods 15 of analysis conducted, the drugs tested for, the number of 16 positive and negative results for both initial tests and 17 confirmation tests, and any other information that deemed 18 appropriate by the Agency for Health Care Administration 19 considers appropriate. A monthly report must not identify 20 specific employees or job applicants. 21 (10) RULES.--The Agency for Health Care Administration 22 shall adopt rules under pursuant to s. 112.0455 and criteria 23 established by the United States Department of Health and 24 Human Services as general guidelines for modeling the state 25 drug-testing program, concerning, but not limited to: 26 (a) Standards for licensing drug-testing laboratories 27 and suspension and revocation of such licenses. 28 (b) Urine, hair, blood, and other body specimens and 29 minimum specimen amounts that are appropriate for drug 30 testing. 31 22 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 (c) Methods of analysis and procedures to ensure 2 reliable drug-testing results, including standards for initial 3 tests and confirmation tests. 4 (d) Minimum cutoff detection levels for each drug or 5 metabolites of such drug for the purposes of determining a 6 positive test result. 7 (e) Chain-of-custody procedures to ensure proper 8 identification, labeling, and handling of specimens tested. 9 (f) Retention, storage, and transportation procedures 10 to ensure reliable results on confirmation tests and retests. 11 (11) PUBLIC EMPLOYEES IN SAFETY-SENSITIVE OR 12 SPECIAL-RISK POSITIONS.-- 13 (a) If an employee who is employed by a public 14 employer in a safety-sensitive position enters an employee 15 assistance program or drug rehabilitation program, the 16 employer must assign the employee to a position other than a 17 safety-sensitive position or, if such a position is not 18 available, must place the employee on leave while the employee 19 is participating in the program. However, the employee is 20 entitled shall be permitted to use any accumulated annual 21 leave credits before the employer may order the employee to 22 take leave may be ordered without pay. 23 (b) An employee who is employed by a public employer 24 in a special-risk position may be discharged or disciplined by 25 a public employer for the first positive confirmed test result 26 if the drug confirmed is an illicit drug under s. 893.03. A 27 special-risk employee who is participating in an employee 28 assistance program or drug rehabilitation program may not be 29 allowed to continue to work in any special-risk or 30 safety-sensitive position of the public employer, but may be 31 assigned to a position other than a safety-sensitive position 23 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1755 141-424A-97 1 or placed on leave while the employee is participating in the 2 program. However, the employee is entitled shall be permitted 3 to use any accumulated annual leave credits before the public 4 employer may order the employee to take leave may be ordered 5 without pay. 6 (12) DENIAL OF BENEFITS.--An employer shall deny an 7 employee medical or indemnity benefits under this chapter, 8 pursuant to this section. 9 (13) COLLECTIVE BARGAINING RIGHTS.-- 10 (a) This section does not eliminate the bargainable 11 rights as provided in the collective bargaining process if 12 applicable. 13 (b) Drug-free workplace program requirements under 14 pursuant to this section are shall be a mandatory topic of 15 negotiations with any certified collective bargaining agent 16 for nonfederal public sector employers that operate under a 17 collective bargaining agreement. 18 (14) APPLICABILITY.--A drug testing policy or 19 procedure adopted by an employer under pursuant to this 20 chapter must shall be applied equally to all employee 21 classifications where the employee is subject to workers' 22 compensation coverage. 23 Section 3. This act shall take effect July 1, 1997. 24 25 ***************************************** 26 LEGISLATIVE SUMMARY 27 Provides for rebutting a presumption that intoxication or drugs did not contribute to an injury under a drug-free 28 workplace program and includes alcohol testing within presumption provisions. Amends definitions relating to 29 the drug-free workplace program requirements. Allows employers to conduct initial drug testing of employees 30 onsite or at a suitable alternative location. Provides requirements and procedures for conducting such tests and 31 for reporting and preserving the results. 24