Florida Senate - 2011                                     SB 302
       
       
       
       By Senator Bennett
       
       
       
       
       21-00405A-11                                           2011302__
    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 Pilot Program within the Agency for
    6         Workforce Innovation; providing legislative intent;
    7         providing the scope of eligibility for benefits;
    8         designating the specific workforce board that is
    9         subject to the pilot program; defining terms;
   10         providing for the screening of individuals to
   11         determine which individuals must be tested; providing
   12         for notice; providing terms of disqualification of
   13         benefits; requiring the agency to supply information
   14         on drug treatment programs; providing for
   15         authentication and the admissibility of drug tests in
   16         unemployment compensation hearings; creating a
   17         rebuttable presumption; providing testing procedures;
   18         providing for the preservation of test samples;
   19         providing for the retesting of test samples; providing
   20         for an appeals process; authorizing the agency to
   21         adopt rules; directing the agency to submit a report
   22         to the Governor and Legislature; directing the Office
   23         of Program Policy Analysis and Government
   24         Accountability to submit a report to the Governor and
   25         Legislature; providing for future expiration of the
   26         program; providing an effective date.
   27  
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Section 443.093, Florida Statutes, is created to
   31  read:
   32         443.093Drug Deterrence Pilot Program.
   33         (1)PURPOSE.—It is the intent of the Legislature to create
   34  within the Agency for Workforce Innovation the Drug Deterrence
   35  Pilot Program. The Legislature finds that illegal drug use is a
   36  threat to public safety. The purpose of this pilot program is to
   37  require the drug testing of certain individuals as a condition
   38  for unemployment benefits in order to prevent the enabling of
   39  drug use with government funds, thereby protecting the public.
   40         (2)SCOPE.—In addition to any benefit eligibility or
   41  disqualification conditions prescribed in this chapter, any
   42  individual making a claim for benefits or receiving benefits and
   43  residing within Regional Workforce Board 18 is subject to this
   44  section. As a condition to making a claim for benefits or
   45  accepting receipt of benefits, an individual must agree to
   46  comply with the terms of this section, including, but not
   47  limited to, agreeing to be subject to drug testing.
   48         (3)DEFINITIONS.—As used in this section, the term:
   49         (a)“Agency” means the Agency for Workforce Innovation.
   50         (b)“Drug” means an amphetamine, a cannabinoid, cocaine,
   51  phencyclidine (PCP), a hallucinogen, methaqualone, an opiate, a
   52  barbiturate, a benzodiazepine, a synthetic narcotic, a designer
   53  drug, or a metabolite of any of the substances listed in this
   54  paragraph.
   55         (c)“Drug test” or “test” means any chemical, biological,
   56  or physical instrumental analysis for the purpose of determining
   57  the presence or absence of a drug or its metabolites.
   58         (4)CREATION.—
   59         (a)The Agency for Workforce Innovation shall implement an
   60  unemployment compensation drug testing pilot program with
   61  Regional Workforce Board 18 by October 1, 2011.
   62         (b)In creating and implementing the program, the agency
   63  shall:
   64         1.Develop a screening mechanism used to assess whether a
   65  person is likely to be an illicit drug user;
   66         2.Require that individuals claiming or receiving benefits
   67  who are assessed as likely illicit drug users to be subject to
   68  drug testing;
   69         3.Make a determination of eligibility under s. 443.091 and
   70  disqualification under s. 443.101 before an applicant is
   71  selected for drug testing;
   72         4.Provide notice of the potential for drug testing to
   73  individuals claiming and receiving benefits; and
   74         5.Require an individual to be tested to sign an
   75  acknowledgement that he or she has received notice of the
   76  agency’s drug testing policy and that he or she has a right to
   77  refuse to take the drug test.
   78         (5)TESTING; USE OF RESULTS.—
   79         (a)An individual is disqualified from receiving or
   80  continuing to receive benefits upon:
   81         1.Refusing to submit to testing under this section; or
   82         2.Upon testing positive for drugs as a result of a test
   83  under this section.
   84         (b)If the individual fails the drug test required under
   85  this section, the individual is not entitled to unemployment
   86  benefits for up to 52 weeks, under rules adopted by the agency,
   87  and until he or she has earned income of at least 17 times his
   88  or her weekly benefit amount.
   89         (c)The agency shall provide any individual who tests
   90  positive with information on drug treatment programs that may be
   91  available in the area in which he or she resides; however, the
   92  agency or the state is not responsible for providing or paying
   93  for drug treatment as part of the testing conducted under this
   94  section.
   95         (6)TESTING.—
   96         (a)All specimen collection and testing for drugs under
   97  this section shall be performed in accordance with the following
   98  procedures:
   99         1.A sample shall be collected with due regard to the
  100  privacy of the individual providing the sample, and in a manner
  101  reasonably calculated to prevent substitution or contamination
  102  of the sample.
  103         2.Specimen collection must be documented, and the
  104  documentation procedures must include:
  105         a.Labeling of specimen containers so as to reasonably
  106  preclude the likelihood of erroneous identification of test
  107  results.
  108         b.A form for the person being tested to provide any
  109  information that he or she considers relevant to the test,
  110  including identification of currently or recently used
  111  prescription or nonprescription medication or other relevant
  112  medical information. The form must provide notice of the most
  113  common medications by brand name or common name, as applicable,
  114  as well as by chemical name, which may alter or affect a drug
  115  test. The providing of information does not preclude the
  116  administration of the drug test, but must be taken into account
  117  in interpreting any positive, confirmed test result.
  118  
  119  Specimen collection, storage, and transportation to the testing
  120  site must be performed in a manner that reasonably precludes
  121  contamination or adulteration of specimens.
  122         (b)Every specimen that produces a positive test result
  123  must be preserved for at least 6 months. However, if the tested
  124  person undertakes an administrative or legal challenge to the
  125  test result, the sample shall be preserved until the case or
  126  administrative appeal is settled.
  127         (c)An individual who tests positive for drugs may refute
  128  and rule out a false positive test by having the same sample
  129  retested by gas chromatography using mass spectrometry, gas
  130  chromatography, high-performance liquid chromatography, or an
  131  equally or more specific test.
  132         (d)Test results and chain-of-custody documentation
  133  provided to the agency by an approved drug-testing laboratory is
  134  self-authenticating and admissible in unemployment compensation
  135  hearings, and such evidence creates a rebuttable presumption
  136  that the individual used, or was using, drugs.
  137         (7)APPEAL.—An individual who is deemed ineligible for, or
  138  is disqualified from, receiving unemployment benefits because of
  139  a positive drug test has a right to appeal the agency’s decision
  140  pursuant to s. 443.151(4).
  141         (8)RULES.—The agency shall adopt rules pursuant to ss.
  142  120.536(1) and 120.54 to administer this section.
  143         (9)REPORT.—
  144         (a)The agency shall submit a report to the Governor, the
  145  President of the Senate, and the Speaker of the House of
  146  Representatives by January 1, 2013, which, at a minimum:
  147         1.Gives the number of individuals tested, the substances
  148  tested for, and the results of the testing;
  149         2.Gives the number of individuals denied unemployment
  150  compensation benefits for failing a drug test upon claiming
  151  benefits and the number of individuals for whom benefits were
  152  terminated for failing a test while receiving benefits;
  153         3.Describes any obstacles to implementation of the
  154  program;
  155         4.Gives the number of applicants who refused to be tested;
  156         5.Gives the number of weeks and the amount of benefits for
  157  which individuals would have been eligible if they had not
  158  tested positive or refused to take the test;
  159         6.Estimates the costs of the drug testing program,
  160  including the average cost of individual tests and the cost of
  161  administering the program;
  162         7.Estimates savings, if any, under the program to the
  163  Unemployment Compensation Trust Fund; and
  164         8.Includes a recommendation on whether the Legislature
  165  should maintain the program.
  166         (b)Before the 2013 Regular Session of the Legislature, the
  167  Office of Program Policy Analysis and Government Accountability
  168  shall review and evaluate the Drug Deterrence Pilot Program and
  169  submit a report to the Governor, the President of the Senate,
  170  and the Speaker of the House of Representatives. The report must
  171  evaluate whether the program is cost-effective and deters drug
  172  users from receiving benefits and make a recommendation to the
  173  Legislature to abolish, continue, reorganize, or expand the
  174  program.
  175         (10)EXPIRATION.—This section expires June 30, 2013.
  176         Section 2. This act shall take effect July 1, 2011.