Florida Senate - 2009 SB 2062
By Senator Bennett
21-00904-09 20092062__
1 A bill to be entitled
2 An act relating to the drug testing of potential and
3 existing beneficiaries for unemployment compensation;
4 creating s. 443.093, F.S.; creating the Drug
5 Deterrence Program within the Agency for Workforce
6 Innovation; providing legislative intent; providing
7 the scope of eligibility for benefits; defining terms;
8 providing for the selection process of individuals to
9 be tested; providing for notice; providing terms of
10 disqualification of benefits; requiring the agency to
11 supply information on drug treatment programs;
12 requiring tested individuals to bear the cost of
13 tests; providing for the reporting of positive results
14 of certain individuals to a law enforcement agency;
15 requiring that the agency contract with qualified
16 laboratories to administer the tests; providing
17 qualifying standards for laboratories; providing for
18 authentication and the admissibility of drug tests in
19 unemployment compensation hearings; creating a
20 rebuttable presumption; providing testing procedures
21 to be followed by laboratories; providing for the
22 preservation of test samples; providing for the
23 retesting of test samples; providing for an appeals
24 process; authorizing the agency to adopt rules;
25 directing the agency to submit a report to the
26 Governor, the President of the Senate, and the Speaker
27 of the House of Representatives; directing the Office
28 of Program Policy Analysis and Government
29 Accountability to submit a report to the Governor, the
30 President of the Senate, and the Speaker of the House
31 of Representatives; providing for expiration of the
32 program; providing an effective date.
33
34 Be It Enacted by the Legislature of the State of Florida:
35
36 Section 1. Section 443.093, Florida Statutes, is created to
37 read:
38 443.093 Drug Deterrence Program.—
39 (1) PURPOSE.—It is the intent of the Legislature to create
40 within the Agency for Workforce Innovation the Drug Deterrence
41 Program. The Legislature finds that illegal drug use is a threat
42 to public safety. The purpose of this program is to require
43 random drug testing as a condition for unemployment benefits to
44 prevent the enabling of drug use with government funds, thereby
45 protecting the public. In addition, because the agency provides
46 job-placement assistance, this program serves to promote safer
47 workplaces.
48 (2) SCOPE.—In addition to any benefit eligibility or
49 disqualification conditions prescribed in this chapter, any
50 individual making a claim for benefits or receiving benefits is
51 subject to this section. As a condition to making a claim for
52 benefits or accepting receipt of benefits, an individual must
53 agree to comply with the terms of this section, including, but
54 not limited to, agreeing to be subject to random drug testing.
55 (3) DEFINITIONS.—As used in this section, the term:
56 (a) “Agency” means the Agency for Workforce Innovation.
57 (b) “Drug” means an amphetamine, a cannabinoid, cocaine,
58 phencyclidine (PCP), a hallucinogen, methaqualone, an opiate, a
59 barbiturate, a benzodiazepine, a synthetic narcotic, a designer
60 drug, or a metabolite of any of the substances listed in this
61 paragraph.
62 (c) “Drug test” or “test” means any chemical, biological,
63 or physical instrumental analysis administered by a laboratory
64 certified by the United States Department of Health and Human
65 Services or licensed by the Agency for Health Care
66 Administration for the purpose of determining the presence or
67 absence of a drug or its metabolites.
68 (4) CREATION.—
69 (a) The Agency for Workforce Innovation shall implement a
70 program no later than October 1, 2009, of drug testing, on a
71 random basis:
72 1. Ten percent of individuals who make a claim for
73 benefits; and
74 2. Ten percent of individuals who are receiving benefits.
75 (b) In creating and implementing the program, the agency
76 shall:
77 1. Develop a procedure for random selection of individuals
78 for testing and shall ensure that the testing occurs on a
79 statewide basis and reasonably correlates to the population
80 distribution in the state;
81 2. Make a determination of eligibility under s.
82 443.101(1)(d) before an applicant is selected for drug testing;
83 3. Provide notice of the potential for drug testing to
84 individuals claiming and receiving benefits; and
85 4. Require an individual to be tested to sign an
86 acknowledgement that he or she has received notice of the
87 agency's drug testing policy and that he or she has a right to
88 refuse to take the drug test;
89 (5) TESTING; USE OF RESULTS.—
90 (a) An individual is disqualified from receiving or
91 continuing to receive benefits upon:
92 1. Refusing to submit to testing under this section; or
93 2. Upon testing positive for drugs as a result of a test
94 under this section.
95 (b) If the individual fails the drug test required under
96 this section, the individual is not entitled to unemployment
97 benefits for up to 52 weeks, under rules adopted by the agency,
98 and until he or she has earned income of at least 17 times his
99 or her weekly benefit amount.
100 (c) The agency shall provide any individual who tests
101 positive with information on drug treatment programs that may be
102 available in the area in which he or she resides; however, the
103 agency or the state is not responsible for providing or paying
104 for drug treatment as part of the testing conducted under this
105 section.
106 (d) The cost of the drug test shall be deducted from the
107 individual's benefits or, if the individual tests positive for
108 the presence of a drug and is ineligible for benefits, the
109 individual shall bear the cost of the test. Any individual who
110 takes a drug test under this section, is denied benefits, and
111 refuses to pay for the test, is ineligible to apply for or
112 receive assistance under this chapter until he or she pays for
113 the test.
114 (e) The agency shall report to a local law enforcement
115 agency the identification and test results of any person who
116 tests positive for a drug and who is under community supervision
117 for a drug-related criminal offense. Community supervision
118 includes parole, probation, conditional release, or supervision
119 in a diversion or drug court program.
120 (6) TESTING; FACILITIES.—
121 (a) The agency shall contract with one or more laboratories
122 licensed and approved as provided in s. 440.102(9), or as
123 provided by equivalent or more stringent licensing requirements
124 established by federal law or regulation for conducting drug
125 testing.
126 (b) Test results and chain-of-custody documentation
127 provided to the agency by an approved drug-testing laboratory is
128 self-authenticating and admissible in unemployment compensation
129 hearings, and such evidence creates a rebuttable presumption
130 that the individual used, or was using, drugs.
131 (c) All specimen collection and testing for drugs under
132 this section shall be performed in accordance with the following
133 procedures:
134 1. A sample shall be collected with due regard to the
135 privacy of the individual providing the sample, and in a manner
136 reasonably calculated to prevent substitution or contamination
137 of the sample.
138 2. Specimen collection must be documented, and the
139 documentation procedures must include:
140 a. Labeling of specimen containers so as to reasonably
141 preclude the likelihood of erroneous identification of test
142 results.
143 b. A form for the person being tested to provide any
144 information he or she considers relevant to the test, including
145 identification of currently or recently used prescription or
146 nonprescription medication or other relevant medical
147 information. The form must provide notice of the most common
148 medications by brand name or common name, as applicable, as well
149 as by chemical name, which may alter or affect a drug test. The
150 providing of information does not preclude the administration of
151 the drug test, but must be taken into account in interpreting
152 any positive, confirmed test result.
153 c. Specimen collection, storage, and transportation to the
154 testing site must be performed in a manner that reasonably
155 precludes contamination or adulteration of specimens.
156 (e) Every specimen that produces a positive test result
157 must be preserved by the licensed or certified laboratory that
158 conducted the test for at least 6 months. However, if the tested
159 person undertakes an administrative or legal challenge to the
160 test result, the agency shall notify the laboratory and the
161 sample shall be retained by the laboratory until the case or
162 administrative appeal is settled.
163 (f) An individual who tests positive for drugs may refute
164 and rule out a false positive test by having the same sample
165 retested by gas chromatography with mass spectrometry, gas
166 chromatography, high performance liquid chromatography, or an
167 equally or more specific test at the same laboratory at his or
168 her own cost.
169 (7) APPEAL.—Any person who is deemed ineligible, or becomes
170 ineligible, for unemployment benefits because of a positive drug
171 test has a right to appeal the agency's decision pursuant to s.
172 443.151(4).
173 (8) RULES.—The agency shall adopt rules under ss.
174 120.536(1) and 120.54 to administer the provisions of this
175 section.
176 (9) REPORT.—
177 (a) The agency shall submit a report to the Governor, the
178 President of the Senate, and the Speaker of the House of
179 Representatives by January 1, 2012, which at a minimum:
180 1. Gives the number of individuals tested, the substances
181 tested for, and the results of the testing;
182 2. Gives the number of individuals denied unemployment
183 compensation benefits for failing a drug test upon claiming
184 benefits and the number of individuals for whom benefits were
185 terminated for failing a test while receiving benefits;
186 3. Describes any obstacles to implementation of the
187 program;
188 4. Gives the number of applicants who refused to be tested;
189 5. Gives the number of weeks and the amount of benefits for
190 which individuals would have been eligible if they not tested
191 positive or refused to take the test;
192 6. Estimates the costs of the drug testing program,
193 including the average cost of individual tests and the cost of
194 administering the program;
195 7. Estimates savings, if any, under the program to the
196 Unemployment Compensation Trust Fund; and
197 8. Includes a recommendation on whether the Legislature
198 should maintain the program.
199 (b) Before the 2012 Regular Session of the Legislature, the
200 Office of Program Policy Analysis and Government Accountability
201 shall review and evaluate the Drug Deterrence Program and submit
202 a report to the Governor, the President of the Senate, and the
203 Speaker of the House of Representatives. The report must
204 evaluate whether the program is cost-effective and deters drug
205 users from receiving benefits and make a recommendation to the
206 Legislature to abolish, continue, reorganize, or expand the
207 program.
208 (10) EXPIRATION.—This section expires on June 30, 2012.
209 Section 2. This act shall take effect July 1, 2009.