House Bill 1519

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    Florida House of Representatives - 2000                HB 1519

        By Representative Lynn






  1                      A bill to be entitled

  2         An act relating to drug-free workplaces;

  3         amending s. 112.0455, F.S.; providing a short

  4         title; providing purposes; providing

  5         legislative findings; amending s. 397.332,

  6         F.S.; providing an additional purpose of the

  7         Office of Drug Control; creating s. 442.01,

  8         F.S.; providing a short title; transferring,

  9         renumbering, and amending ss. 440.101 and

10         440.102, F.S., relating to drug-free

11         workplaces; combining and clarifying certain

12         provisions of ss. 112.0455 and 440.102, F.S.,

13         relating to drug-free workplace programs;

14         providing legislative intent; providing for

15         eligibility for certain rate discounts under

16         certain circumstances; providing for

17         ineligibility under certain circumstances;

18         requiring reporting the identities of certain

19         insurers; revising definitions; revising and

20         clarifying provisions relating to drug testing,

21         notice to employees and job applicants, types

22         of testing, procedures and employee protection,

23         confirmation testing, employer protection,

24         confidentiality, licensure and certification of

25         drug-testing laboratories, drug-testing

26         standards for laboratories, rules of the Agency

27         for Health Care Administration, state employees

28         in safety-sensitive or special-risk positions,

29         denial of benefits, discipline and

30         nondiscipline remedies, collective bargaining

31         rights, applicability, medical review officers,

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  1         and license fees; providing for reporting and

  2         accountability standards; providing

  3         requirements for drug-testing laboratory

  4         certification and licensing; requiring

  5         employers to provide education of employees;

  6         requiring final review of drug test results by

  7         a medical review officer; providing criteria;

  8         providing for compliance with federal

  9         regulations; amending s. 627.0915, F.S.;

10         requiring the Department of Insurance to

11         approve workers' compensation rating plans

12         providing a certain rate setting discount;

13         amending ss. 440.09, 443.101, and 443.1715,

14         F.S., to conform cross references; amending s.

15         14, ch. 99-240, Laws of Florida; deleting the

16         repeal of chapter 442, F.S.; retaining the

17         repeal of the sections of chapter 442, F.S.;

18         correcting an incorrect section reference;

19         providing effective dates.

20

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

22

23         Section 1.  Section 112.0455, Florida Statutes, is

24  amended to read:

25         (Substantial rewording of section.

26         See s. 112.0455, F.S., for existing text.)

27         112.0455  Drug-free workplaces.--

28         (1)  SHORT TITLE.--Sections 442.02 and 440.03 may be

29  cited as the "Florida Government Drug-Free Workplace Act."

30         (2)  PURPOSE.--This section is intended to:

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  1         (a)  Promote the goal of drug-free workplaces within

  2  all levels of state government through fair and reasonable

  3  drug-testing methods for the protection of public employees

  4  and employers.

  5         (b)  Encourage state government to provide employees

  6  who have drug use problems with an opportunity to participate

  7  in an employee assistance program or an alcohol and drug

  8  rehabilitation program.

  9         (3)  FINDINGS.--The Legislature finds that:

10         (a)  Drug use has serious adverse effects upon a

11  significant portion of the workforce, resulting in billions of

12  dollars of lost productivity each year and posing a threat to

13  the workplace and to public safety and security.

14         (b)  Maintaining a healthy and productive workforce,

15  safe working conditions free from the effects of drugs, and

16  quality products and services is important to governmental

17  employers and employees and the general public in this state.

18  The Legislature further finds that drug use creates a variety

19  of workplace problems, including increased injury on the job,

20  increased absenteeism, increased financial burden on health

21  and benefit programs, increased workplace theft, decreased

22  employee morale, decreased productivity, and a decline in the

23  quality of products and services offered by state government.

24         (c)  Implementation of a drug-free workplace program is

25  necessary to protect government employers and employees who

26  participate in workplace drug-testing programs.

27         (d)  In balancing the interests of state government

28  employers and employees and the welfare of the general public,

29  the establishment of standards to ensure fair and accurate

30  testing for drugs in the workplace is in the best interest of

31  all.

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  1         (e)  For the protection of and fairness to the state,

  2  state employees, and job applicants, the collection and

  3  testing of specimens and the reporting of such testing not

  4  performed pursuant to s. 442.03 and rules adopted under such

  5  section shall not be used for the purposes of s. 442.03.

  6         (3)  Any drug-free workplace established by an agency

  7  of this state must comply with the requirements of s. 442.03.

  8         Section 2.  Paragraph (h) is added to subsection (2) of

  9  section 397.332, Florida Statutes, to read:

10         397.332  Office of Drug Control.--

11         (2)  The purpose of the Office of Drug Control is to

12  work in collaboration with the Office of Planning and

13  Budgeting to:

14         (h)  Serve as an umbrella agency to ensure coordination

15  among the agencies or departments which are responsible for

16  implementing the drug-free workplace provisions of ss. 442.02

17  and 442.03.

18         Section 3.  Section 442.01, Florida Statutes, is

19  created to read:

20         442.01  Drug-Free Workplace Act.--Sections 442.02 and

21  442.03 may be cited as the "Florida Government Drug-Free

22  Workplace Act."

23         Section 4.  Sections 440.101 and 440.102, Florida

24  Statutes, are transferred and renumbered as sections 442.02

25  and 442.03, Florida Statutes, respectively, and amended to

26  read:

27         442.02 440.101  Legislative intent; drug-free

28  workplaces.--

29         (1)  It is the intent of the Legislature to promote

30  drug-free workplaces in order that all employers in the state

31  be afforded the opportunity to maximize their levels of

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  1  productivity, enhance their competitive positions in the

  2  marketplace, and reach their desired levels of success without

  3  experiencing the costs, delays, and tragedies associated with

  4  work-related accidents resulting from drug abuse by employees.

  5  It is further the intent of the Legislature that drug abuse be

  6  discouraged and that employees who choose to engage in drug

  7  abuse face the risk of unemployment and the forfeiture of

  8  workers' compensation benefits provided under chapter 440 and

  9  unemployment compensation benefits provided under chapter 443.

10         (2)  If an employer implements a drug-free workplace

11  program in accordance with s. 442.03 440.102 which includes

12  notice, education, and procedural requirements for testing for

13  drugs and alcohol pursuant to law or to rules adopted under s.

14  442.03 developed by the Agency for Health Care Administration,

15  the employer may require the employee to submit to a test for

16  the presence of drugs or alcohol and, if a drug or alcohol is

17  found to be present in the employee's system at a level

18  prescribed by rule adopted pursuant to this act, the employee

19  may be terminated and may forfeit forfeits his or her

20  eligibility for medical and indemnity benefits provided by the

21  employer under chapter 440 and unemployment compensation

22  benefits under chapter 443. However, a drug-free workplace

23  program must require the employer to notify all employees that

24  it is a condition of employment for an employee to refrain

25  from reporting to work or working with the presence of drugs

26  or alcohol in his or her body and, if an injured employee

27  refuses to submit to a test for drugs or alcohol, the employee

28  forfeits eligibility for medical and indemnity benefits.

29         (3)  An employer which has established and maintains a

30  drug-free workplace program in accordance with s. 442.03 is

31  eligible to qualify for the discounts provided under s.

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  1  627.0915.  An employer who fails to maintain a drug-free

  2  workplace in accordance with s. 442.03 and rules adopted under

  3  such section is not eligible for the discounts under s.

  4  627.0915.  The identity of all employers qualifying for and

  5  receiving discounts provided under s. 627.0915 shall be

  6  reported annually by the insurer to the division as prescribed

  7  by the division.

  8         442.03 440.102  Drug-free workplace program

  9  requirements.--The following provisions apply to a drug-free

10  workplace program implemented pursuant to law or to rules

11  adopted by the Agency for Health Care Administration for

12  collecting and testing specimens for drugs:

13         (1)  DEFINITIONS.--Except where the context otherwise

14  requires, as used in this act:

15         (a)  "Certified laboratory" means a drug-free workplace

16  laboratory certified by the Federal Substance Abuse and Mental

17  Health Services Administration (SAMHSA).

18         (b)(a)  "Chain of custody" refers to the methodology of

19  tracking specified materials or substances for the purpose of

20  maintaining control and accountability from initial collection

21  to final disposition for all such materials or substances and

22  providing for accountability at each stage in handling,

23  testing, and storing specimens and reporting test results.

24         (c)(b)  "Confirmation test," "confirmed test," or

25  "confirmed drug test" means a second analytical procedure used

26  to identify the presence of a specific drug or metabolite in a

27  specimen. The confirmation, which test must be different in

28  scientific principle from that of the initial test procedure

29  and must be capable of providing requisite specificity,

30  sensitivity, and quantitative accuracy or shall consist of a

31  more accurate scientifically accepted method approved by the

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  1  Department of Health and Human Services Mandatory Guidelines

  2  for Federal Workplace Drug Testing Programs as contained in

  3  Volume 54, Number 110, of the Federal Register published June

  4  9, 1994, and, for alcohol testing, the Department of

  5  Transportation Federal Motor Carrier Safety Regulations Part

  6  40.

  7         (d)  "Division" means the Division of Workers'

  8  Compensation of the Department of Labor and Employment

  9  Security.

10         (e)(c)  "Drug" means alcohol, including a distilled

11  spirit, wine, a malt beverage, or an intoxicating liquor; an

12  amphetamine; a cannabinoid; cocaine; phencyclidine (PCP); a

13  hallucinogen; methaqualone; an opiate; a barbiturate; a

14  benzodiazepine; propoxyphene a synthetic narcotic; a designer

15  drug; or a metabolite of any of the substances listed in this

16  paragraph. An employer may test an individual for any or all

17  of such drugs.

18         (f)(d)  "Drug rehabilitation program" means a service

19  provider, established pursuant to s. 397.311(28), that

20  provides confidential, timely, and expert identification,

21  assessment, and resolution of employee drug abuse.

22         (g)(e)  "Drug test" or "test" means any chemical,

23  biological, or physical instrumental analysis administered, by

24  a laboratory certified by the United States Department of

25  Health and Human Services or licensed by the Agency for Health

26  Care Administration as provided in subsection (9), for the

27  purpose of determining the presence or absence of a drug or

28  its metabolites.

29         (h)(f)  "Employee" means any person who works for

30  salary, wages, or other remuneration for an employer.

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  1         (i)(g)  "Employee assistance program" means an

  2  established program capable of providing expert assessment of

  3  employee personal concerns; confidential and timely

  4  identification services with regard to employee drug abuse;

  5  referrals of employees for appropriate diagnosis, treatment,

  6  and assistance; and followup services for employees who

  7  participate in the program or require monitoring after

  8  returning to work. If, in addition to the above activities, an

  9  employee assistance program provides diagnostic and treatment

10  services, these services shall in all cases be provided by

11  service providers pursuant to s. 397.311(28).

12         (j)(h)  "Employer" means a person or entity that

13  employs a person and that is covered by the Workers'

14  Compensation Law.

15         (k)(i)  "Initial drug test" means a sensitive, rapid,

16  and reliable procedure to identify negative and presumptive

17  positive specimens, using an immunoassay procedure or an

18  equivalent, or a more accurate scientifically accepted method

19  approved by the United States Department of Health and Human

20  Services Mandatory Guidelines for Federal Workplace Drug

21  Testing Programs as contained in Volume 54, Number 110, of the

22  Federal Register published June 9, 1994, and, for alcohol

23  testing, the Department of Transportation Federal Motor

24  Carrier Safety Regulations Part 40 Food and Drug

25  Administration or the Agency for Health Care Administration as

26  such more accurate technology becomes available in a

27  cost-effective form.

28         (l)(j)  "Job applicant" means a person who has applied

29  for a position with an employer and has been offered

30  employment conditioned upon successfully passing a drug test,

31  and may have begun work pending the results of the drug test.

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  1  For a state agency public employer, "job applicant" may mean

  2  means only a person who has applied for a special-risk or

  3  safety-sensitive position.

  4         (m)  "Licensed laboratory" means a drug-free workplace

  5  laboratory licensed by the Agency for Health Care

  6  Administration pursuant to this section.

  7         (n)(k)  "Medical review officer" or "MRO" means a

  8  licensed physician, employed with or contracted with an

  9  employer, who is certified in the law and methodology of drug

10  testing; who has knowledge of substance abuse disorders,

11  laboratory testing procedures, and chain of custody collection

12  procedures; who verifies positive, confirmed test results; and

13  who has the necessary medical training to interpret and

14  evaluate an employee's positive test result in relation to the

15  employee's medical history or any other relevant biomedical

16  information.

17         (o)(l)  "Prescription or nonprescription medication"

18  means a drug or medication obtained pursuant to a prescription

19  as defined by s. 893.02 or a medication that is authorized

20  pursuant to federal or state law for general distribution and

21  use without a prescription in the treatment of human diseases,

22  ailments, or injuries.

23         (p)(m)  "Public employer" means any agency within

24  state, county, or municipal government that employs

25  individuals for a salary, wages, or other remuneration.

26         (q)(n)  "Reasonable-suspicion drug testing" means drug

27  testing based on a belief that an employee is using or has

28  used drugs in violation of the employer's policy drawn from

29  specific objective and articulable facts and reasonable

30  inferences drawn from those facts in light of experience.

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  1  Among other things, Such facts and inferences may be based

  2  upon, but are not limited to:

  3         1.  Observable phenomena while at work, such as direct

  4  observation of drug use or of the physical symptoms or

  5  manifestations of being under the influence of a drug.

  6         2.  Abnormal conduct or erratic behavior while at work

  7  or a significant deterioration in work performance.

  8         3.  A report of drug use, provided by a reliable and

  9  credible source.

10         4.  Evidence that an individual has tampered with a

11  drug test during his or her employment with the current

12  employer.

13         5.  Information that an employee has caused,

14  contributed to, or been involved in an accident while at work.

15         6.  Evidence that an employee has used, possessed,

16  sold, solicited, or transferred drugs while working or while

17  on the employer's premises or while operating the employer's

18  vehicle, machinery, or equipment.

19         (r)(o)  "Safety-sensitive position" means, with respect

20  to a public employer, a position in which a drug impairment

21  constitutes an immediate and direct threat to public health or

22  safety, such as a position that requires the employee to carry

23  a firearm, perform life-threatening procedures, work with

24  confidential information or documents pertaining to criminal

25  investigations, or work with controlled substances; a position

26  in which a drug impairment constitutes an immediate and direct

27  threat to the employee's health or safety; a position in which

28  the employee is responsible for the well-being of a minor; a

29  position subject to s. 110.1127; or a position in which a

30  momentary lapse in attention could result in injury or death

31  to another person.

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  1         (s)(p)  "Special-risk position" means, with respect to

  2  a public employer, a position that is required to be filled by

  3  a person who is certified under chapter 633 or chapter 943.

  4         (t)(q)  "Specimen" means tissue, hair, or a product of

  5  the human body capable of revealing the presence of drugs or

  6  their metabolites, as approved by the United States Department

  7  of Health and Human Services Mandatory Guidelines for Federal

  8  Workplace Drug Testing Programs as contained in Volume 54,

  9  Number 110, of the Federal Register published June 9, 1994,

10  and, for alcohol testing, the Department of Transportation

11  Federal Motor Carrier Safety Regulations Part 40 Food and Drug

12  Administration or the Agency for Health Care Administration.

13         (2)  DRUG TESTING.--An employer may test an employee or

14  job applicant for any drug described in paragraph (1)(c). In

15  order to qualify as having established a certified state

16  drug-free workplace program, which affords an employer the

17  ability to qualify for the discounts provided under s.

18  627.0915 and deny medical and indemnity benefits, under this

19  chapter all drug testing conducted by employers shall be in

20  conformity with the standards and procedures established in

21  this section and all applicable rules adopted pursuant to this

22  section. However, an employer does not have a legal duty under

23  this section to request an employee or job applicant to

24  undergo drug testing. If an employer fails to maintain a

25  drug-free workplace program in accordance with the standards

26  and procedures established in this section and in applicable

27  rules, the employer shall not be eligible for discounts under

28  s. 627.0915. All employers qualifying for and receiving

29  discounts provided under s. 627.0915 must be reported annually

30  by the insurer to the division.

31         (3)  NOTICE TO EMPLOYEES AND JOB APPLICANTS.--

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  1         (a)  One time only, prior to testing, an employer shall

  2  give all employees and job applicants for employment a written

  3  policy statement which contains:

  4         1.  A general statement of the employer's policy on

  5  employee drug use, which must identify:

  6         a.  The types of drug testing an employee or job

  7  applicant may be required to submit to, including

  8  reasonable-suspicion drug testing or drug testing conducted on

  9  any other basis.

10         b.  The actions the employer may take against an

11  employee or job applicant on the basis of a positive confirmed

12  drug test result.

13         2.  A statement advising the employee or job applicant

14  of the existence of this section.

15         3.  A general statement concerning confidentiality.

16         4.  Procedures for employees and job applicants to

17  confidentially report to a medical review officer the use of

18  prescription or nonprescription medications to a medical

19  review officer both before and after being tested.

20         5.  A list of the most common medications, by brand

21  name or common name, as applicable, as well as by chemical

22  name, which may alter or affect a drug test. A list of such

23  medications as developed by the Agency for Health Care

24  Administration shall be available to employers through the

25  Division of Workers' Compensation of the Department of Labor

26  and Employment Security.

27         6.  The consequences of refusing to submit to a drug

28  test.

29         7.  A representative sampling of names, addresses, and

30  telephone numbers of employee assistance programs and local

31  drug rehabilitation programs.

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  1         8.  A statement that an employee or job applicant who

  2  receives a positive confirmed test result may contest or

  3  explain the result to the medical review officer within 5

  4  working days after receiving written notification of the test

  5  result; that if an employee's or job applicant's explanation

  6  or challenge is unsatisfactory to the medical review officer,

  7  the medical review officer shall report a positive test result

  8  back to the employer; and that a person may contest the drug

  9  test result pursuant to law or to rules adopted by the Agency

10  for Health Care Administration.

11         9.  A statement informing the employee or job applicant

12  of his or her responsibility to notify the laboratory of any

13  administrative or civil action brought pursuant to this

14  section.

15         10.  A list of all drugs for which the employer may

16  will test, described by brand name or common name, as

17  applicable, as well as by chemical name.

18         11.  A statement regarding any applicable collective

19  bargaining agreement or contract and the right to appeal to

20  the Public Employees Relations Commission or applicable court.

21         12.  A statement notifying employees and job applicants

22  of their right to consult with a medical review officer for

23  technical information regarding prescription or

24  nonprescription medication.

25         (b)  An employer not having a drug-testing program

26  shall ensure that at least 60 days elapse between a general

27  one-time notice to all employees that a drug-testing program

28  is being implemented and the beginning of actual drug testing.

29  An employer having a drug-testing program in place prior to

30  October 1, 2000 July 1, 1990, is not required to provide a

31  60-day notice period.

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  1         (c)  An employer shall include notice of drug testing

  2  on vacancy announcements for positions for which drug testing

  3  is required. A notice of the employer's intent to test for

  4  drugs drug-testing policy must also be posted in an

  5  appropriate and conspicuous location on the employer's

  6  premises, and copies of the policy must be made available for

  7  inspection by the employees or job applicants of the employer

  8  during regular business hours in the employer's personnel

  9  office or other suitable locations.

10         (4)  TYPES OF TESTING.--

11         (a)  An employer is required to conduct the following

12  types of drug tests:

13         1.  Job applicant drug testing.--An employer must

14  require job applicants to submit to a drug test and may use a

15  refusal to submit to a drug test or a positive confirmed drug

16  test as a basis for refusing to hire a job applicant.

17         2.  Reasonable-suspicion drug testing.--An employer

18  must require an employee to submit to reasonable-suspicion

19  drug testing.

20         3.  Routine fitness-for-duty drug testing.--An employer

21  must require an employee to submit to a drug test if the test

22  is conducted as part of a routinely scheduled employee

23  fitness-for-duty medical examination that is part of the

24  employer's established policy or that is scheduled routinely

25  for all members of an employment classification or group.

26         4.  Followup drug testing.--If the employee in the

27  course of employment enters an employee assistance program for

28  drug-related problems, or a drug rehabilitation program, the

29  employer must require the employee to submit to a drug test as

30  a followup to such program, unless the employee voluntarily

31  entered the program. In those cases, the employer has the

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  1  option to not require followup testing. If followup testing is

  2  required, it must be conducted at least once a year for a

  3  2-year period after completion of the program. Advance notice

  4  of a followup testing date must not be given to the employee

  5  to be tested.

  6         5.  Postaccident testing.--If, in the course of

  7  employment, the employee suffers an accident for which the

  8  employee is treated by a physician, the employer must require

  9  the employee to submit to a drug test as a consequence of such

10  accident.

11         (b)  This subsection does not preclude an a private

12  employer from conducting random testing, or any other lawful

13  testing, of employees for drugs.

14         (c)  Limited testing of applicants, only if it is based

15  on a reasonable classification basis, is permissible in

16  accordance with law or with rules adopted by the Agency for

17  Health Care Administration.

18         (5)  PROCEDURES AND EMPLOYEE PROTECTION.--All specimen

19  collection and testing for drugs under this section shall be

20  performed in accordance with the following procedures:

21         (a)  A sample shall be collected with due regard to the

22  privacy of the individual providing the sample, and in a

23  manner reasonably calculated to prevent substitution or

24  contamination of the sample.

25         (b)  Specimen collection must be documented, and the

26  documentation procedures shall include:

27         1.  Labeling of specimen containers so as to reasonably

28  preclude the likelihood of erroneous identification of test

29  results.

30         2.  A form for the employee or job applicant to provide

31  any information he or she considers relevant to the test,

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  1  including identification of currently or recently used

  2  prescription or nonprescription medication or other relevant

  3  medical information. The form must provide notice of the most

  4  common medications by brand name or common name, as

  5  applicable, as well as by chemical name, which may alter or

  6  affect a drug test. The providing of information shall not

  7  preclude the administration of the drug test, but shall be

  8  taken into account in interpreting any positive confirmed test

  9  result.

10         (c)  Specimen collection, storage, and transportation

11  to the testing site shall be performed in a manner that

12  reasonably precludes contamination or adulteration of

13  specimens.

14         (d)  Each initial drug test and confirmation test

15  conducted under this section, not including the taking or

16  collecting of a specimen to be tested, shall be conducted by a

17  licensed or certified laboratory as described in subsection

18  (10) (9).

19         (e)  A specimen for a drug test may be taken or

20  collected by any of the following persons:

21         1.  A physician, a physician assistant, a registered

22  professional nurse, a licensed practical nurse, or a nurse

23  practitioner or a certified paramedic who is present at the

24  scene of an accident for the purpose of rendering emergency

25  medical service or treatment.

26         2.  A qualified person employed by or contracted by a

27  licensed or certified laboratory as described in subsection

28  (10) or an independent contractor or designee of such

29  contractor who has knowledge, training, and experience in

30  collecting such specimens (9).

31

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  1         (f)  A person who collects or takes a specimen for a

  2  drug test shall collect an amount sufficient for two drug

  3  tests as determined by the Agency for Health Care

  4  Administration.

  5         (g)  Every specimen that produces a positive, confirmed

  6  test result shall be preserved by the licensed or certified

  7  laboratory that conducted the confirmation test for a period

  8  of at least 210 days after the result of the test was mailed

  9  or otherwise delivered to the medical review officer. However,

10  if an employee or job applicant undertakes an administrative

11  or legal challenge to the test result, the employee or job

12  applicant shall notify the laboratory and the sample shall be

13  retained by the laboratory until the case or administrative

14  appeal is settled. During the 180-day period after written

15  notification of a positive test result, the employee or job

16  applicant who has provided the specimen shall be permitted by

17  the employer to have a portion of the specimen retested, at

18  the employee's or job applicant's expense, at another

19  laboratory, licensed and approved by the Agency for Health

20  Care Administration pursuant to subsection (9) or certified by

21  the United States Department of Health and Human Services,

22  chosen by the employee or job applicant. The second laboratory

23  must test at equal or greater sensitivity for the drug in

24  question as the first laboratory. The first laboratory that

25  performed the test for the employer is responsible for the

26  transfer of the portion of the specimen to be retested, and

27  for the integrity of the chain of custody during such

28  transfer.

29         (h)  Within 5 working days after receipt of a positive

30  confirmed test result from the medical review officer, an

31  employer shall inform an employee or job applicant in writing

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  1  of such positive test result, the consequences of such

  2  results, and the options available to the employee or job

  3  applicant. The employer shall provide to the employee or job

  4  applicant, upon request, a copy of the test results.

  5         (i)  Within 5 working days after receiving notice of a

  6  positive confirmed test result, an employee or job applicant

  7  may submit information to the employer explaining or

  8  contesting the test result, and explaining why the result does

  9  not constitute a violation of the employer's policy.

10         (j)  If the employee's or job applicant's explanation

11  or challenge of the positive test result is unsatisfactory to

12  the employer, a written explanation as to why the employee's

13  or job applicant's explanation is unsatisfactory, along with

14  the report of positive result, shall be provided by the

15  employer to the employee or job applicant upon written request

16  of the employee or applicant within 5 days after the

17  employer's final notification of a positive result; and all

18  such documentation shall be kept confidential by the employer

19  pursuant to subsection (8) and shall be retained by the

20  employer for at least 1 year.

21         (k)  An employer may not discharge, discipline, refuse

22  to hire, discriminate against, or request or require

23  rehabilitation of an employee or job applicant on the sole

24  basis of a positive test result that has not been verified by

25  a confirmation test and by a medical review officer.

26         (l)  An employer that performs drug testing or specimen

27  collection shall use chain-of-custody procedures established

28  by rule by the Agency for Health Care Administration to ensure

29  proper recordkeeping, handling, labeling, and identification

30  of all specimens tested.

31

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  1         (m)  An employer shall pay the cost of all drug tests,

  2  initial and confirmation, which the employer requires of

  3  employees.  An employee or job applicant shall pay the costs

  4  of any additional drug tests not required by the employer.

  5         (n)  An employer shall not discharge, discipline, or

  6  discriminate against an employee solely upon the employee's

  7  voluntarily seeking treatment, while under the employ of the

  8  employer, for a drug-related problem if the employee has not

  9  previously tested positive for drug use, entered an employee

10  assistance program for drug-related problems, or entered a

11  drug rehabilitation program. Unless otherwise provided by a

12  collective bargaining agreement, an employer may select the

13  employee assistance program or drug rehabilitation program if

14  the employer pays the cost of the employee's participation in

15  the program.

16         (o)  If drug testing is conducted based on reasonable

17  suspicion, the employer shall promptly detail in writing the

18  circumstances which formed the basis of the determination that

19  reasonable suspicion existed to warrant the testing. A copy of

20  this documentation shall be given to the employee upon request

21  and the original documentation shall be kept confidential by

22  the employer pursuant to subsection (8) and shall be retained

23  by the employer for at least 1 year.

24         (p)  All authorized remedial treatment, care, and

25  attendance provided by a health care provider to an injured

26  employee before medical and indemnity benefits are denied

27  under this section must be paid for by the carrier or

28  self-insurer. However, the carrier or self-insurer must have

29  given reasonable notice to all affected health care providers

30  that payment for treatment, care, and attendance provided to

31  the employee after a future date certain will be denied. A

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  1  health care provider, as defined in s. 440.13(1)(i), that

  2  refuses, without good cause, to continue treatment, care, and

  3  attendance before the provider receives notice of benefit

  4  denial commits a misdemeanor of the second degree, punishable

  5  as provided in s. 775.082 or s. 775.083.

  6         (6)  CONFIRMATION TESTING.--

  7         (a)  If an initial drug test is negative, the employer

  8  may in its sole discretion seek a confirmation test.

  9         (a)(b)  Only licensed or certified laboratories as

10  described in subsection (10) (9) may conduct confirmation drug

11  tests.

12         (b)(c)  All positive initial tests shall be confirmed

13  using gas chromatography/mass spectrometry (GC/MS) or an

14  equivalent or more accurate scientifically accepted method

15  approved by the Agency for Health Care Administration or the

16  United States Food and Drug Administration as such technology

17  becomes available in a cost-effective form.

18         (c)(d)  If an initial drug test of an employee or job

19  applicant is confirmed as positive, the employer's medical

20  review officer shall provide technical assistance to the

21  employer and to the employee or job applicant for the purpose

22  of interpreting the test result to determine whether the

23  result could have been caused by prescription or

24  nonprescription medication taken by the employee or job

25  applicant.

26         (7)  EMPLOYER PROTECTION.--

27         (a)  An employee or job applicant whose drug test

28  result is confirmed as positive in accordance with this

29  section shall not, by virtue of the result alone, be deemed to

30  have a "handicap" or "disability" as defined under federal,

31  state, or local handicap and disability discrimination laws.

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  1         (b)  An employer who discharges or disciplines an

  2  employee or refuses to hire a job applicant in compliance with

  3  this section is considered to have discharged, disciplined, or

  4  refused to hire for cause.

  5         (c)  No physician-patient relationship is created

  6  between an employee or job applicant and an employer or any

  7  person performing or evaluating a drug test, solely by the

  8  establishment, implementation, or administration of a

  9  drug-testing program.

10         (d)  Nothing in this section shall be construed to

11  prevent an employer from establishing reasonable work rules

12  related to employee possession, use, sale, or solicitation of

13  drugs, including convictions for drug-related offenses, and

14  taking action based upon a violation of any of those rules.

15         (e)  This section does not operate retroactively, and

16  does not abrogate the right of an employer under state law to

17  conduct drug tests, or implement employee drug-testing

18  programs; however, only those programs that meet the criteria

19  outlined in this section qualify for reduced rates under s.

20  627.0915.

21         (f)  If an employee or job applicant refuses to submit

22  to a drug test, the employer is not barred from discharging or

23  disciplining the employee or from refusing to hire the job

24  applicant. However, this paragraph does not abrogate the

25  rights and remedies of the employee or job applicant as

26  otherwise provided in this section.

27         (g)  This section does not prohibit an employer from

28  conducting medical screening or other tests required,

29  permitted, or not disallowed by any statute, rule, or

30  regulation for the purpose of monitoring exposure of employees

31  to toxic or other unhealthy substances in the workplace or in

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  1  the performance of job responsibilities. Such screening or

  2  testing is limited to the specific substances expressly

  3  identified in the applicable statute, rule, or regulation,

  4  unless prior written consent of the employee is obtained for

  5  other tests. Such screening or testing need not be in

  6  compliance with the rules adopted by the Agency for Health

  7  Care Administration under this chapter or under s. 112.0455. A

  8  public employer may, through the use of an unbiased selection

  9  procedure, conduct random drug tests of employees occupying

10  safety-sensitive or special-risk positions if the testing is

11  performed in accordance with drug-testing rules adopted by the

12  Agency for Health Care Administration and the Department of

13  Labor and Employment Security. If applicable, random drug

14  testing must be specified in a collective bargaining agreement

15  as negotiated by the appropriate certified bargaining agent

16  before such testing is implemented.

17         (h)  No cause of action shall arise in favor of any

18  person based upon the failure of an employer to establish a

19  program or policy for drug testing.

20         (8)  CONFIDENTIALITY.--

21         (a)  Except as otherwise provided in this subsection,

22  all information, interviews, reports, statements, memoranda,

23  and drug test results, written or otherwise, received or

24  produced as a result of a drug-testing program are

25  confidential and exempt from the provisions of s. 119.07(1)

26  and s. 24(a), Art. I of the State Constitution, and may not be

27  used or received in evidence, obtained in discovery, or

28  disclosed in any public or private proceedings, except in

29  accordance with this section or in determining compensability

30  under this chapter.

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  1         (b)  Employers, laboratories, medical review officers,

  2  employee assistance programs, drug rehabilitation programs,

  3  and their agents may not release any information concerning

  4  drug test results obtained pursuant to this section without a

  5  written consent form signed voluntarily by the person tested,

  6  unless such release is compelled by an administrative law

  7  judge, a hearing officer, or a court of competent jurisdiction

  8  pursuant to an appeal taken under this section or is deemed

  9  appropriate by a professional or occupational licensing board

10  in a related disciplinary proceeding. The consent form must

11  contain, at a minimum:

12         1.  The name of the person who is authorized to obtain

13  the information.

14         2.  The purpose of the disclosure.

15         3.  The precise information to be disclosed.

16         4.  The duration of the consent.

17         5.  The signature of the person authorizing release of

18  the information.

19         (c)  Information on drug test results shall not be used

20  in any criminal proceeding against the employee or job

21  applicant.  Information released contrary to this section is

22  inadmissible as evidence in any such criminal proceeding.

23         (d)  This subsection does not prohibit an employer,

24  agent of an employer, or laboratory conducting a drug test

25  from having access to employee drug test information or using

26  such information when consulting with legal counsel in

27  connection with actions brought under or related to this

28  section or when the information is relevant to its defense in

29  a civil or administrative matter.

30

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  1         (9)  LICENSURE AND CERTIFICATION OF DRUG-TESTING

  2  LABORATORIES.--A laboratory may analyze initial or

  3  confirmation drug specimens only if:

  4         (a)  The laboratory is licensed by the Agency for

  5  Health Care Administration or certified by the United States

  6  Department of Health and Human Services. Licensed laboratories

  7  may perform all drug testing authorized under that licensure

  8  using all specimens authorized under such licensure. Each

  9  applicant for licensure must comply with the following

10  requirements:

11         1.  Upon receipt of a completed, signed, and dated

12  application, the agency shall require background screening, in

13  accordance with the level 2 standards for screening set forth

14  in chapter 435, of the managing employee, or other similarly

15  titled individual responsible for the daily operation of the

16  laboratory, and of the financial officer, or other similarly

17  titled individual who is responsible for the financial

18  operation of the laboratory, including billings for services.

19  The applicant must comply with the procedures for level 2

20  background screening as set forth in chapter 435, as well as

21  the requirements of s. 435.03(3).

22         2.  The agency may require background screening of any

23  other individual who is an applicant if the agency has

24  probable cause to believe that he or she has been convicted of

25  an offense prohibited under the level 2 standards for

26  screening set forth in chapter 435.

27         3.  Proof of compliance with the level 2 background

28  screening requirements of chapter 435 which has been submitted

29  within the previous 5 years in compliance with any other

30  health care licensure requirements of this state is acceptable

31  in fulfillment of screening requirements.

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  1         4.  A provisional license may be granted to an

  2  applicant when each individual required by this section to

  3  undergo background screening has met the standards for the

  4  abuse registry background check and the Department of Law

  5  Enforcement background check, but the agency has not yet

  6  received background screening results from the Federal Bureau

  7  of Investigation, or a request for a disqualification

  8  exemption has been submitted to the agency as set forth in

  9  chapter 435, but a response has not yet been issued. A license

10  may be granted to the applicant upon the agency's receipt of a

11  report of the results of the Federal Bureau of Investigation

12  background screening for each individual required by this

13  section to undergo background screening which confirms that

14  all standards have been met, or upon the granting of a

15  disqualification exemption by the agency as set forth in

16  chapter 435. Any other person who is required to undergo level

17  2 background screening may serve in his or her capacity

18  pending the agency's receipt of the report from the Federal

19  Bureau of Investigation. However, the person may not continue

20  to serve if the report indicates any violation of background

21  screening standards and a disqualification exemption has not

22  been requested of and granted by the agency as set forth in

23  chapter 435.

24         5.  Each applicant must submit to the agency, with its

25  application, a description and explanation of any exclusions,

26  permanent suspensions, or terminations of the applicant from

27  the Medicare program or Medicaid program. Proof of compliance

28  with the requirements for disclosure of ownership and control

29  interests under the Medicaid program or Medicare program shall

30  be accepted in lieu of this submission.

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  1         6.  Each applicant must submit to the agency a

  2  description and explanation of any conviction of an offense

  3  prohibited under the level 2 standards of chapter 435 by a

  4  member of the board of directors of the applicant, its

  5  officers, or any individual owning 5 percent or more of the

  6  applicant. This requirement does not apply to a director of a

  7  not-for-profit corporation or organization if the director

  8  serves solely in a voluntary capacity for the corporation or

  9  organization, does not regularly take part in the day-to-day

10  operational decisions of the corporation or organization,

11  receives no remuneration for his or her services on the

12  corporation or organization's board of directors, and has no

13  financial interest and has no family members with a financial

14  interest in the corporation or organization, provided that the

15  director and the not-for-profit corporation or organization

16  include in the application a statement affirming that the

17  director's relationship to the corporation satisfies the

18  requirements of this subparagraph.

19         7.  A license may not be granted to any applicant if

20  the applicant or managing employee has been found guilty of,

21  regardless of adjudication, or has entered a plea of nolo

22  contendere or guilty to, any offense prohibited under the

23  level 2 standards for screening set forth in chapter 435,

24  unless an exemption from disqualification has been granted by

25  the agency as set forth in chapter 435.

26         8.  The agency may deny or revoke licensure if the

27  applicant:

28         a.  Has falsely represented a material fact in the

29  application required by subparagraph 5. or subparagraph 6., or

30  has omitted any material fact from the application required by

31  subparagraph 5. or subparagraph 6.; or

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  1         b.  Has had prior action taken against the applicant

  2  under the Medicare program or Medicaid program as set forth in

  3  subparagraph 5.

  4         9.  An application for license renewal must contain the

  5  information required under subparagraphs 5. and 6.

  6         (b)  The laboratory is certified pursuant to the

  7  Federal Substance Abuse and Mental Health Services

  8  Administration (SAMHSA).  For the purposes of this section, a

  9  certified laboratory shall report drug-testing results for

10  only those drugs and specimens authorized under such

11  certification.

12         (10)(9)  DRUG-TESTING STANDARDS FOR LABORATORIES.--

13         (a)  A laboratory may analyze initial or confirmation

14  test specimens only if:

15         1.  The laboratory is licensed and approved by the

16  Agency for Health Care Administration using criteria

17  established by the United States Department of Health and

18  Human Services as general guidelines for modeling the state

19  drug-testing program pursuant to this section or the

20  laboratory is certified by the United States Department of

21  Health and Human Services.

22         2.  The laboratory has written procedures to ensure the

23  chain of custody.

24         3.  The laboratory follows proper quality control

25  procedures, including, but not limited to:

26         a.  The use of internal quality controls, including the

27  use of samples of known concentrations which are used to check

28  the performance and calibration of testing equipment, and

29  periodic use of blind samples for overall accuracy.

30

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  1         b.  An internal review and certification process for

  2  drug test results, conducted by a person qualified to perform

  3  that function in the testing laboratory.

  4         c.  Security measures implemented by the testing

  5  laboratory to preclude adulteration of specimens and drug test

  6  results.

  7         d.  Other necessary and proper actions taken to ensure

  8  reliable and accurate drug test results.

  9         (b)  A laboratory shall disclose to the medical review

10  officer a written positive confirmed test result report within

11  7 working days after receipt of the sample. All laboratory

12  reports of a drug test result must, at a minimum, state:

13         1.  The name and address of the laboratory that

14  performed the test and the positive identification of the

15  person tested.

16         2.  Positive results on confirmation tests only, or

17  negative results, as applicable.

18         3.  A list of the drugs for which the drug analyses

19  were conducted.

20         4.  The type of tests conducted for both initial tests

21  and confirmation tests and the minimum cutoff levels of the

22  tests.

23         5.  Any correlation between medication reported by the

24  employee or job applicant pursuant to subparagraph (5)(b)2.

25  and a positive confirmed drug test result.

26

27  A report must not disclose the presence or absence of any drug

28  other than a specific drug and its metabolites listed pursuant

29  to this section.

30         (c)  The laboratory shall submit to the Agency for

31  Health Care Administration a monthly report with statistical

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  1  information regarding the testing of employees and job

  2  applicants. The report must include information on the methods

  3  of analysis conducted, the drugs tested for, the number of

  4  positive and negative results for both initial tests and

  5  confirmation tests, and any other information deemed

  6  appropriate by the Agency for Health Care Administration. A

  7  monthly report must not identify specific employees or job

  8  applicants.

  9         (11)(10)  RULES.--

10         (a)  The Agency for Health Care Administration shall

11  adopt rules for laboratories and medical review officers

12  engaged in drug-free workplace testing pursuant to this part.

13  Such rules shall be modeled after the requirements and

14  guidelines of s. 112.0455 and criteria established by the

15  United States Department of Health and Human Services and the

16  United States Department of Transportation. Such rules shall

17  include as general guidelines for modeling the state

18  drug-testing program concerning, but not be limited to:

19         1.(a)  Standards for licensing and certifying

20  drug-testing laboratories and suspension and revocation of

21  such licenses.

22         2.  Standards for collecting drug test specimens.

23         3.  Standards for testing and reporting drug test

24  results.

25         4.  Grounds for disciplinary action against a licensed

26  drug-free workplace laboratory, including, not limited to,

27  licensure denial, suspension, revocation, and annulment.

28         5.  Imposition of administrative fines not to exceed

29  $1,000 per violation for the violation of any provision of

30  this act or rules adopted pursuant to this act.  Each day of

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  1  violation constitutes a separate violation and is subject to a

  2  separate fine.

  3         6.(b)  Urine, hair, blood, and other body specimens and

  4  minimum specimen amounts that may be used are appropriate for

  5  drug-free workplace drug testing.

  6         7.  Minimum specimen amounts which are appropriate for

  7  drug testing, not inconsistent with or duplicative of existing

  8  federal drug-free workplace programs referenced in this

  9  section. Split specimens shall not be required by such rules,

10  but are not prohibited.

11         8.(c)  Methods of analysis and procedures to ensure

12  reliable drug-testing results, including standards for initial

13  tests and confirmation tests, not inconsistent with or

14  duplicative of existing federal drug-free workplace programs

15  referenced in this section.

16         9.(d)  Minimum cutoff detection levels for each drug or

17  metabolites of such drug found in body specimens and capable

18  of revealing the presence of drugs or metabolites of drugs for

19  the purposes of determining a positive test result, not

20  inconsistent with or duplicative of existing federal drug-free

21  workplace programs referenced in this section.

22         10.(e)  Chain-of-custody procedures to ensure proper

23  identification, labeling, and handling of specimens being

24  tested, not inconsistent with or duplicative of existing

25  federal drug-free workplace programs referenced in this

26  section.

27         11.(f)  Retention, storage, and transportation

28  procedures to ensure reliable results on confirmation tests

29  and retests, not inconsistent with or duplicative of existing

30  federal drug-free workplace programs referenced in this

31  section.

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  1         12.  A list of the most common medications by brand

  2  name or common name, as applicable, which may alter or affect

  3  a drug test.

  4         13.  Standards for proficiency testing.

  5         14.  Standards for quality control.

  6         15.  Standards for quality assurance.

  7         16.  Requirements for the qualifications and

  8  registration of all medical review officers rendering reports

  9  on drug-free workplace results under this section.

10         17.  Requirements for statistical reporting from

11  licensed and certified laboratories and the medical review

12  officer regarding the testing of employees and job applicants.

13  The reports shall include information deemed appropriate by

14  the Agency for Health Care Administration. No report shall

15  identify specific employees, employers, state government

16  agencies, or job applicants.

17         18.  The inspection of licensed and certified drug

18  testing laboratories, including the acceptance of the Federal

19  Substance Abuse and Mental Health Services Administration

20  (SAMHSA) inspection program for certified laboratories in lieu

21  of inspection by the Agency for Health Care Administration in

22  whole or in part.

23         (b)  The Department of Labor and Employment Security

24  shall also adopt any rules necessary to implement the

25  provisions of this section.

26         (12)(11)  PUBLIC EMPLOYEES IN SAFETY-SENSITIVE OR

27  SPECIAL-RISK POSITIONS.--

28         (a)  If an employee who is employed by a public

29  employer in a safety-sensitive position enters an employee

30  assistance program or drug rehabilitation program, the

31  employer must assign the employee to a position other than a

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  1  safety-sensitive position or, if such position is not

  2  available, place the employee on leave while the employee is

  3  participating in the program. However, the employee shall be

  4  permitted to use any accumulated annual leave credits before

  5  leave may be ordered without pay.

  6         (b)  An employee who is employed by a public employer

  7  in a special-risk position may be discharged or disciplined by

  8  a public employer for the first positive confirmed test result

  9  if the drug confirmed is an illicit drug under s. 893.03. A

10  special-risk employee who is participating in an employee

11  assistance program or drug rehabilitation program may not be

12  allowed to continue to work in any special-risk or

13  safety-sensitive position of the public employer, but may be

14  assigned to a position other than a safety-sensitive position

15  or placed on leave while the employee is participating in the

16  program. However, the employee shall be permitted to use any

17  accumulated annual leave credits before leave may be ordered

18  without pay.

19         (13)(12)  DENIAL OF BENEFITS.--An employer may shall

20  deny an employee medical or indemnity benefits under this

21  chapter 440, pursuant to this section.

22         (14)(13)  COLLECTIVE BARGAINING RIGHTS.--

23         (a)  This section does not eliminate the bargainable

24  rights as provided in the collective bargaining process if

25  applicable.

26         (b)  Drug-free workplace program requirements pursuant

27  to this section shall be a mandatory topic of negotiations

28  with any certified collective bargaining agent for nonfederal

29  public sector employers that operate under a collective

30  bargaining agreement.

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  1         (15)(14)  APPLICABILITY.--A drug testing policy or

  2  procedure adopted by an employer pursuant to this chapter

  3  shall be applied equally to all employee classifications where

  4  the employee is subject to workers' compensation coverage.

  5         (16)  DISCIPLINARY REMEDIES.--

  6         (a)  An employee of a public employer that is a state

  7  agency who is disciplined or who is a job applicant for

  8  another position with such agency and is not hired pursuant to

  9  this section may file an appeal with the Public Employees

10  Relations Commission.  Employees of public employers as

11  defined in this section that are not state agencies may file

12  an appeal with the administrative entity customarily utilized

13  by those employers for employee grievances and the rules of

14  those entities shall apply to those proceedings.

15         (b)  Any appeal filed with the commission must be filed

16  within 30 calendar days after receipt by the employee or job

17  applicant of notice of discipline or refusal to hire.  The

18  notice shall inform the employee or job applicant of the right

19  to file an appeal, or, if available, the right to file a

20  collective bargaining agreement pursuant to s. 447.401. Such

21  appeals shall be resolved pursuant to the procedures

22  established in ss. 447.207(1)-(4), 447.208(2), and 447.503(4)

23  and (5).  A hearing on the appeal shall be conducted within 30

24  days after the filing of the appeal, unless an extension is

25  requested by the employee or job applicant and granted by the

26  commission or an arbitrator.

27         (c)  The commission shall adopt rules concerning the

28  receipt, processing, and resolution of appeals filed pursuant

29  to this section.

30         (d)  Appeals to the commission shall be the exclusive

31  administrative remedy for any employee of a public employer

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  1  that is a state agency who is disciplined or any job applicant

  2  for a position within a state agency who is not hired pursuant

  3  to this section, notwithstanding the provisions of chapter

  4  120.  However, nothing in this subsection shall affect the

  5  right of said employees or job applicants to file a collective

  6  bargaining grievance pursuant to s. 447.401.  No employee or

  7  job applicant described in this subsection may file both an

  8  appeal and a grievance.

  9         (e)  An employee of a public employer or a job

10  applicant for a position with a public employer who has been

11  disciplined or has not been hired pursuant to this section

12  must exhaust either the applicable administrative appeal

13  process or collective bargaining grievance-arbitration process

14  prior to filing any additional appeal allowed by law.

15         (f)  A public employer who refuses to hire a job

16  applicant based upon a positive, confirmed drug test result

17  shall not be required to hold the position vacant while the

18  job applicant pursues any applicable administrative remedy.

19  However, if the job applicant prevails in that action, the

20  employer shall provide that applicant the opportunity of

21  employment in the next available comparable position.

22         (g)  Upon resolving an appeal filed pursuant to

23  paragraph (b), and finding a violation of this section, the

24  commission may order the following relief:

25         1.  Rescind the disciplinary action, expunge related

26  records from the personnel file of the employee or job

27  applicant, and reinstate the employee.

28         2.  Order compliance with paragraph (f).

29         3.  Award back pay and benefits.

30

31

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  1         4.  Award the prevailing employee or job applicant the

  2  necessary costs of the appeal, reasonable attorney's fees, and

  3  expert witness fees.

  4         (17)  NONDISCIPLINARY REMEDIES.--

  5         (a)  Any person alleging a violation of the provisions

  6  of this section that cannot be remedied by the commission or

  7  an arbitrator pursuant to subsection (16) must institute a

  8  civil action for injunctive relief or damages, or both, in a

  9  court of competent jurisdiction within 180 days after the

10  alleged violation, or be barred from obtaining the following

11  relief.  Relief is specifically limited to:

12         1.  An order restraining the continued violation of

13  this section.

14         2.  An award of the costs of litigation, expert witness

15  fees, reasonable attorney's fees, and economic and noneconomic

16  damages. Noneconomic damages shall be limited to the recovery

17  of damages directly resulting from injury or loss caused by

18  each violation of this section.

19         (b)  Any employer who complies with the provisions of

20  this section shall be immune from liability arising from all

21  civil actions relating to any drug-testing program or

22  procedure performed in compliance with this section.

23         (c)  Unemployment compensation benefits may be denied

24  to a job applicant who is denied employment due to a positive

25  drug test if:

26         1.  The employer's tests are conducted by a licensed

27  and approved laboratory and conform to the standards set forth

28  under chapter 440; or

29         2.  The employer is in compliance with equivalent or

30  more stringent drug-testing standards established by federal

31  law or regulation.

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  1

  2  A positive drug test conducted in accordance with this

  3  paragraph creates a rebuttable presumption that the individual

  4  used a drug and that in so doing is considered to have engaged

  5  in disqualifying conduct. Such positive test results are

  6  self-authenticating and are admissible in unemployment

  7  compensation hearings.

  8         (d)  Pursuant to any claim alleging a violation of this

  9  section, including a claim under this section in which it is

10  alleged that an employer's action with respect to a person was

11  based on an incorrect test result, there shall be a rebuttable

12  presumption that the test was valid if the employer complied

13  with the provisions of this section.

14         (e)  No cause of action shall arise in favor of any

15  person based upon the failure of an employer to establish a

16  program or policy for drug testing.

17         (18)  REPORTING AND ACCOUNTABILITY STANDARDS.--The

18  employer or carrier shall report to the division information

19  related to the establishment of a drug-free workplace in

20  accordance with rules adopted by the division to monitor the

21  effectiveness of drug-free workplaces.

22         (19)  EDUCATION REQUIREMENTS FOR CERTIFIED DRUG-FREE

23  WORKPLACES.--The division shall adopt rules to specify

24  educational requirements that must be provided by employers as

25  an element of a drug-free workplace.  Employers participating

26  in a drug-free workplace shall provide such education

27  according to those standards set by the division.

28         (20)  MEDICAL REVIEW OFFICERS.--Any drug-testing

29  program shall provide for a final review of drug test results.

30  A positive or an inconclusive result or the presence of a

31  possible contaminant or adulterant does not automatically

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  1  identify an employee or job applicant as a user of prohibited

  2  drugs or controlled substances. Negative test results shall be

  3  reviewed to ensure that proper collection and testing

  4  procedures were followed. An individual with a detailed

  5  knowledge of possible alternate medical explanations shall

  6  review all drug-testing results. Such review shall be

  7  performed by a medical review officer prior to the

  8  transmission of any drug test report to the employer. Such

  9  tests not reviewed by a qualified medical review officer in

10  accordance with this section and the rules adopted under this

11  section are invalid and shall not be used for the purposes of

12  this section.

13         (21)  FEDERAL COMPLIANCE.--The drug-testing procedures

14  provided in this section do not apply when the specific work

15  performed requires employees or job applicants to be subject

16  to drug testing under federal regulations. If an employee

17  tests positive for drugs or alcohol under federal regulations

18  or refuses to submit to such testing, the employee shall be

19  sanctioned as provided in this section.

20         (22)  LICENSE FEE.--License fees from licensure of

21  drug-testing laboratories shall be sufficient to carry out the

22  responsibilities of the Agency for Health Care Administration

23  for the regulation of drug-testing laboratories.  The Agency

24  for Health Care Administration shall collect fees for all

25  licenses issued under this section.  Each nonrefundable fee

26  shall be due at the time of application and shall be payable

27  to the Agency for Health Care Administration to be deposited

28  in a trust fund administered by the Agency for Health Care

29  Administration and used only for the purposes of this section.

30  The fee schedule is as follows:  for licensure as a

31  drug-testing laboratory, an annual fee of not less than $8,000

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  1  nor more than $10,000 per fiscal year; for late filing of an

  2  application for renewal, an additional fee of $500 per day

  3  shall be charged.

  4         Section 5.  Section 627.0915, Florida Statutes, is

  5  amended to read:

  6         627.0915  Rate filings; workers' compensation,

  7  drug-free workplace, and safe employers.--The Department of

  8  Insurance shall approve rating plans for workers' compensation

  9  insurance that give a 10-percent discount specific

10  identifiable consideration in the setting of rates to

11  employers that either implement a drug-free workplace program

12  pursuant to rules adopted by the Division of Workers'

13  Compensation of the Department of Labor and Employment

14  Security or implement a safety program approved by the

15  Division of Safety pursuant to rules adopted by the Division

16  of Safety of the Department of Labor and Employment Security

17  or implement both a drug-free workplace program and a safety

18  program. The Division of Safety may by rule require that the

19  client of a help supply services company comply with the

20  essential requirements of a workplace safety program as a

21  condition for receiving a premium credit. The plans must take

22  effect January 1, 1994, must be actuarially sound, and must

23  state the savings anticipated to result from such drug-testing

24  and safety programs.

25         Section 6.  Paragraph (a) of subsection (7) of section

26  440.09, Florida Statutes, is amended to read:

27         440.09  Coverage.--

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

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

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

31  injury was occasioned primarily by the intoxication of the

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

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

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

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

  5  442.02 and 442.03 440.101 and 440.102, the employer may

  6  require the employee to submit to a test for the presence of

  7  any or all drugs or alcohol in his or her system.

  8         Section 7.  Paragraphs (a) and (b) of subsection (11)

  9  of section 443.101, Florida Statutes, are amended to read:

10         443.101  Disqualification for benefits.--An individual

11  shall be disqualified for benefits:

12         (11)  If an individual is discharged from employment

13  for drug use as evidenced by a positive, confirmed drug test

14  as provided in paragraph (1)(d), or is rejected for offered

15  employment because of a positive, confirmed drug test as

16  provided in paragraph (2)(c), test results and chain of

17  custody documentation provided to the employer by a licensed

18  and approved drug-testing laboratory will be

19  self-authenticating and admissible in unemployment

20  compensation hearings, and such evidence will create a

21  rebuttable presumption that the individual used, or was using,

22  controlled substances, subject to the following conditions:

23         (a)  To qualify for the presumption described in this

24  subsection, an employer must have implemented a drug-free

25  workplace program under ss. 442.02 and 442.03 440.101 and

26  440.102, and must submit proof that the employer has qualified

27  for the insurance discounts provided under s. 627.0915, as

28  certified by the insurance carrier or self-insurance unit. In

29  lieu thereof, an employer who does not fit the definition of

30  "employer" in s. 442.03 440.102 may qualify for the

31  presumption provided that the employer is in compliance with

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  1  equivalent or more stringent drug-testing standards

  2  established by federal law or regulation.

  3         (b)  Only laboratories licensed and approved as

  4  provided in s. 442.03 440.102(9), or as provided by equivalent

  5  or more stringent licensing requirements established by

  6  federal law or regulation may perform such tests.

  7         Section 8.  Subsection (3) of section 443.1715, Florida

  8  Statutes, is amended to read:

  9         443.1715  Disclosure of information; confidentiality.--

10         (3)  SPECIAL PROVISIONS FOR DISCLOSURE OF DRUG TEST

11  INFORMATION.--Notwithstanding the contrary provisions of s.

12  442.03(8) 440.102(8), all information, interviews, reports,

13  and drug test results, written or otherwise, received by an

14  employer through a drug-testing program may be used or

15  received in evidence, obtained in discovery, or disclosed in

16  public or private proceedings conducted for the purpose of

17  determining compensability under this chapter, including any

18  administrative or judicial appeal taken hereunder. The

19  employer, agent of the employer, or laboratory conducting a

20  drug test may also obtain access to employee drug test

21  information when consulting with legal counsel in connection

22  with actions brought under or related to this chapter or when

23  the information is relevant to its defense in a civil or

24  administrative matter. Such information may also be released

25  to a professional or occupational licensing board in a related

26  disciplinary proceeding. However, unless otherwise provided by

27  law, such information is confidential for all other purposes.

28         (a)  Such information may not be disclosed or released,

29  or used in any criminal proceeding against the person tested.

30  Information released contrary to paragraph (c) is inadmissible

31  as evidence in any such criminal proceeding.

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  1         (b)  Unless otherwise provided by law, any such

  2  information received by a public employer through a

  3  drug-testing program, or obtained by a public employee under

  4  this chapter, is confidential and exempt from the provisions

  5  of s. 119.07(1) and s. 24(a), Art. I of the State

  6  Constitution, until introduced into the public record pursuant

  7  to a hearing conducted under s. 443.151(4).

  8         (c)  Confidentiality may be waived only by express and

  9  informed written consent executed by the person tested. The

10  consent form must contain, at a minimum:

11         1.  The name of the person who is authorized to obtain

12  the information;

13         2.  The purpose of the disclosure;

14         3.  The precise information to be disclosed;

15         4.  The duration of the consent; and

16         5.  The signature of the person authorizing release of

17  the information.

18         Section 9.  Effective upon this act becoming a law,

19  section 14 of chapter 99-240, Laws of Florida, is amended to

20  read:

21         Section 14.  Sections Chapter 442, Florida Statutes,

22  consisting of ss. 442.001, 442.002, 442.003, 442.004, 442.005,

23  442.006, 442.007, 442.008, 442.009, 442.0105 442.1015,

24  442.011, 442.012, 442.013, 442.014, 442.015, 442.016, 442.017,

25  442.018, 442.019, 442.020, 442.021, 442.022, 442.023, 442.101,

26  442.102, 442.103, 442.104, 442.105, 442.106, 442.107, 442.108,

27  442.109, 442.111, 442.112, 442.113, 442.115, 442.116, 442.118,

28  442.1185, 442.119, 442.121, 442.123, 442.125, 442.126,

29  442.127, 442.20, and 442.21, Florida Statutes, are is repealed

30  July 1, 2000. The Department of Labor and Employment Security

31  shall submit to the Governor and the Legislature by January 1,

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  1  2000, a report on a proposed reauthorization of the Division

  2  of Safety and the provisions of chapter 442, Florida Statutes,

  3  based upon the following criteria:

  4         (1)  External requirements mandating that the State of

  5  Florida provide a state agency for employment safety issues;

  6         (2)  Internal organizational requirements that

  7  necessitate a state agency for safety issues and a review of

  8  state agency practices for the provision of existing

  9  safety-related activities.

10         (3)  A compilation of best practices among public and

11  private employers which achieve safety results without the

12  creation of a governmental regulatory apparatus.

13         (4)  The appropriateness of a management-by-exception

14  system in which the division functions as a contract

15  performance auditor for the development of internal risk and

16  safety management issues among employers.

17         Section 10.  Except as otherwise provided herein, this

18  act shall take effect October 1, 2000.

19

20            *****************************************

21                          HOUSE SUMMARY

22
      Removes the duplication of drug-free workplace provisions
23    in chs. 112 and 440, F.S., and transfers from ss.
      112.0455, 440.101, and 440.102, F.S., to ch. 442, F.S.,
24    and revises and clarifies, drug-free workplace
      provisions. See bill for details.
25

26

27

28

29

30

31

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