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.