Senate Bill 1972er

    ENROLLED

    1998 Legislature                                       SB 1972



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  2         An act relating to workers' compensation;

  3         amending s. 440.09, F.S.; providing a standard

  4         for rebutting a presumption that an employee's

  5         injury was caused by intoxication or influence

  6         of drugs; providing an effective date.

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  8  Be It Enacted by the Legislature of the State of Florida:

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10         Section 1.  Subsection (7) of section 440.09, Florida

11  Statutes, is amended to read:

12         440.09  Coverage.--

13         (7)(a)  To ensure that the workplace is a drug-free

14  environment and to deter the use of drugs and alcohol at the

15  workplace, if the employer has reason to suspect that the

16  injury was occasioned primarily by the intoxication of the

17  employee or by the use of any drug, as defined in this

18  chapter, which affected the employee to the extent that the

19  employee's normal faculties were impaired, and the employer

20  has not implemented a drug-free workplace pursuant to ss.

21  440.101 and 440.102, the employer may require the employee to

22  submit to a test for the presence of any or all drugs or

23  alcohol in his or her system.

24         (b)  If the employee has, at the time of the injury, a

25  blood alcohol level equal to or greater than the level

26  specified in s. 316.193, or if the employee has a positive

27  confirmation of a drug as defined in this act, it is presumed

28  that the injury was occasioned primarily by the intoxication

29  of, or by the influence of the drug upon, the employee. If the

30  employer has implemented a drug-free workplace, this

31  presumption may be rebutted only by evidence that there is no


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CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    1998 Legislature                                       SB 1972



  1  reasonable hypothesis that the intoxication or drug influence

  2  contributed to the injury. In the absence of a drug-free

  3  workplace program, this presumption may be rebutted by clear

  4  and convincing evidence that the intoxication or influence of

  5  the drug did not contribute to the injury. Percent by weight

  6  of alcohol in the blood must be based upon grams of alcohol

  7  per 100 milliliters of blood. If the results are positive, the

  8  testing facility must maintain the specimen for a minimum of

  9  90 days. Blood serum may be used for testing purposes under

10  this chapter; however, if this test is used, the presumptions

11  under this section do not arise unless the blood alcohol level

12  is proved to be medically and scientifically equivalent to or

13  greater than the comparable blood alcohol level that would

14  have been obtained if the test were based on percent by weight

15  of alcohol in the blood. However, if, before the accident, the

16  employer had actual knowledge of and expressly acquiesced in

17  the employee's presence at the workplace while under the

18  influence of such alcohol or drug, the presumptions specified

19  in this subsection do not apply.

20         (c)  If the injured worker refuses to submit to a drug

21  test, it shall be presumed in the absence of clear and

22  convincing evidence to the contrary that the injury was

23  occasioned primarily by the influence of drugs.

24         (d)  The division shall provide by rule for the

25  authorization and regulation of drug-testing policies,

26  procedures, and methods. Testing of injured employees shall

27  not commence until such rules are adopted.

28         Section 2.  This act shall take effect July 1, 1998 and

29  shall apply to any cause of action or petition for benefits

30  filed on or after that date.

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