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         443.093Drug 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.