Florida Senate - 2012                                    SB 1358
       
       
       
       By Senator Hays
       
       
       
       
       20-00710D-12                                          20121358__
    1                        A bill to be entitled                      
    2         An act relating to the Drug-Free Workplace Act;
    3         amending s. 112.0455, F.S.; removing the definition of
    4         the term “safety-sensitive position” and defining the
    5         term “random testing”; authorizing an agency within
    6         state government to conduct random drug testing every
    7         3 months; removing provisions prohibiting a state
    8         agency from discharging or disciplining an employee
    9         under certain circumstances based on the employee’s
   10         first positive confirmed drug test; removing
   11         provisions limiting the circumstances under which an
   12         agency may discharge an employee in a special risk or
   13         safety-sensitive position; providing that an agency
   14         may discharge or discipline an employee following a
   15         first-time positive confirmed drug test result;
   16         authorizing an agency to refer an employee to an
   17         employee assistance program or an alcohol and drug
   18         rehabilitation program if the employee is not
   19         discharged; requiring participation in an employee
   20         assistance program at the employee’s own expense;
   21         requiring the employer to determine if the employee is
   22         able to safely and effectively perform the job duties
   23         assigned to the employee before the employee completes
   24         the employee assistance program; deeming that certain
   25         specified job activities cannot be performed safely
   26         and effectively while the employee is participating in
   27         the employee assistance program; requiring the
   28         employer to transfer the employee to a job assignment
   29         that he or she can perform safely and effectively
   30         while the employee participates in the employee
   31         assistance program; requiring the employer to place
   32         the employee on leave status while the employee is
   33         participating in an employee assistance program if
   34         such a position is unavailable; authorizing the
   35         employee to use accumulated leave credits before being
   36         placed on leave without pay; amending s. 440.102,
   37         F.S.; revising the definition of the term “job
   38         applicant” as it pertains to a public employer;
   39         removing the definition of the term “safety-sensitive
   40         position” and replacing it with the definition for the
   41         term “mandatory-testing position;” providing that an
   42         employer remains qualified for an insurer rate plan
   43         that discounts rates for worker’s compensation and
   44         employer’s liability insurance policies if the
   45         employer maintains a drug-free workplace program that
   46         is broader in scope than that provided for by the
   47         standards and procedures established in the act;
   48         authorizing a public employer, using an unbiased
   49         selection procedure, to conduct random drug tests of
   50         employees occupying mandatory-testing or special-risk
   51         positions if the testing is performed in accordance
   52         with drug-testing rules adopted by the Agency for
   53         Health Care Administration; requiring that a public
   54         sector employer assign a public sector employee to a
   55         position other than a mandatory-testing position if
   56         the employee enters an employee assistance program or
   57         drug rehabilitation program; removing provisions
   58         related to collective bargaining rights for nonfederal
   59         public sector employers; conforming cross-references;
   60         amending s. 944.474, F.S.; revising provisions
   61         governing employees of the state correctional system,
   62         to conform to changes made by the act; providing an
   63         effective date.
   64  
   65  Be It Enacted by the Legislature of the State of Florida:
   66  
   67         Section 1. Subsections (5), (7), and (8) and paragraphs
   68  (h), (i), (j), and (k) of subsection (10) of section 112.0455,
   69  Florida Statutes, are amended to read:
   70         112.0455 Drug-Free Workplace Act.—
   71         (5) DEFINITIONS.—Except where the context otherwise
   72  requires, as used in this act:
   73         (a) “Drug” means alcohol, including distilled spirits,
   74  wine, malt beverages, and intoxicating liquors; amphetamines;
   75  cannabinoids; cocaine; phencyclidine (PCP); hallucinogens;
   76  methaqualone; opiates; barbiturates; benzodiazepines; synthetic
   77  narcotics; designer drugs; or a metabolite of any of the
   78  substances listed herein.
   79         (b) “Drug test” or “test” means any chemical, biological,
   80  or physical instrumental analysis administered for the purpose
   81  of determining the presence or absence of a drug or its
   82  metabolites.
   83         (c) “Initial drug test” means a sensitive, rapid, and
   84  reliable procedure to identify negative and presumptive positive
   85  specimens. All initial tests must shall use an immunoassay
   86  procedure or an equivalent, or must shall use a more accurate
   87  scientifically accepted method approved by the Agency for Health
   88  Care Administration as such more accurate technology becomes
   89  available in a cost-effective form.
   90         (d) “Confirmation test,” “confirmed test,” or “confirmed
   91  drug test” means a second analytical procedure used to identify
   92  the presence of a specific drug or metabolite in a specimen. The
   93  confirmation test must be different in scientific principle from
   94  that of the initial test procedure. This confirmation method
   95  must be capable of providing requisite specificity, sensitivity,
   96  and quantitative accuracy.
   97         (e) “Chain of custody” refers to the methodology of
   98  tracking specified materials or substances for the purpose of
   99  maintaining control and accountability from initial collection
  100  to final disposition for all such materials or substances and
  101  providing for accountability at each stage in handling, testing,
  102  storing specimens, and reporting of test results.
  103         (f) “Job applicant” means a person who has applied for a
  104  special risk or safety-sensitive position with an employer and
  105  has been offered employment conditioned upon successfully
  106  passing a drug test.
  107         (g) “Employee” means a any person who works for salary,
  108  wages, or other remuneration for an employer.
  109         (h) “Employer” means an any agency within state government
  110  that employs individuals for salary, wages, or other
  111  remuneration.
  112         (i) “Prescription or nonprescription medication” means a
  113  drug or medication obtained pursuant to a prescription as
  114  defined by s. 893.02 or a medication that is authorized pursuant
  115  to federal or state law for general distribution and use without
  116  a prescription in the treatment of human diseases, ailments, or
  117  injuries.
  118         (j) “Random testing” means a drug test conducted on
  119  employees who are selected through the use of a computer
  120  generated random sample of an employer’s employees.
  121         (k)(j) “Reasonable suspicion drug testing” means drug
  122  testing based on a belief that an employee is using or has used
  123  drugs in violation of the employer’s policy drawn from specific
  124  objective and articulable facts and reasonable inferences drawn
  125  from those facts in light of experience. Reasonable suspicion
  126  drug testing may shall not be required except upon the
  127  recommendation of a supervisor who is at least one level of
  128  supervision higher than the immediate supervisor of the employee
  129  in question. Among other things, such facts and inferences may
  130  be based upon:
  131         1. Observable phenomena while at work, such as direct
  132  observation of drug use or of the physical symptoms or
  133  manifestations of being under the influence of a drug.
  134         2. Abnormal conduct or erratic behavior while at work or a
  135  significant deterioration in work performance.
  136         3. A report of drug use, provided by a reliable and
  137  credible source, which has been independently corroborated.
  138         4. Evidence that an individual has tampered with a drug
  139  test during employment with the current employer.
  140         5. Information that an employee has caused, or contributed
  141  to, an accident while at work.
  142         6. Evidence that an employee has used, possessed, sold,
  143  solicited, or transferred drugs while working or while on the
  144  employer’s premises or while operating the employer’s vehicle,
  145  machinery, or equipment.
  146         (l)(k) “Specimen” means a tissue, hair, or product of the
  147  human body capable of revealing the presence of drugs or their
  148  metabolites.
  149         (m)(l) “Employee assistance program” means an established
  150  program for employee assessment, counseling, and possible
  151  referral to an alcohol and drug rehabilitation program.
  152         (m) “Safety-sensitive position” means any position,
  153  including a supervisory or management position, in which a drug
  154  impairment would constitute an immediate and direct threat to
  155  public health or safety.
  156         (n) “Special risk” means employees who are required as a
  157  condition of employment to be certified under chapter 633 or
  158  chapter 943.
  159         (7) TYPES OF TESTING.—An employer may conduct is
  160  authorized, but is not required, to conduct, the following types
  161  of drug tests:
  162         (a) Job applicant testing.—An employer may require job
  163  applicants to submit to a drug test and may use a refusal to
  164  submit to a drug test or a positive confirmed drug test as a
  165  basis for refusal to hire the job applicant.
  166         (b) Reasonable suspicion.—An employer may require an
  167  employee to submit to reasonable suspicion drug testing.
  168         (c) Random testing.—An employer may conduct random testing
  169  once every 3 months.
  170         (d)(c)Routine fitness for duty.—An employer may require an
  171  employee to submit to a drug test if the test is conducted as
  172  part of a routinely scheduled employee fitness-for-duty medical
  173  examination that is part of the employer’s established policy or
  174  that is scheduled routinely for all members of an employment
  175  classification or group.
  176         (e)(d)Followup testing.—If the employee in the course of
  177  employment enters an employee assistance program for drug
  178  related problems, or an alcohol and drug rehabilitation program,
  179  the employer may require the said employee to submit to a drug
  180  test as a followup to such program, and on a quarterly,
  181  semiannual, or annual basis for up to 2 years thereafter.
  182         (8) PROCEDURES AND EMPLOYEE PROTECTION.—All specimen
  183  collection and testing for drugs under this section shall be
  184  performed in accordance with the following procedures:
  185         (a) A sample shall be collected with due regard to the
  186  privacy of the individual providing the sample, and in a manner
  187  reasonably calculated to prevent substitution or contamination
  188  of the sample.
  189         (b) Specimen collection shall be documented, and the
  190  documentation procedures shall include:
  191         1. Labeling of specimen containers so as to reasonably
  192  preclude the likelihood of erroneous identification of test
  193  results.
  194         2. A form for the employee or job applicant to provide any
  195  information he or she considers relevant to the test, including
  196  identification of currently or recently used prescription or
  197  nonprescription medication, or other relevant medical
  198  information. Such form shall provide notice of the most common
  199  medications by brand name or common name, as applicable, as well
  200  as by chemical name, which may alter or affect a drug test. The
  201  providing of information does shall not preclude the
  202  administration of the drug test, but shall be taken into account
  203  in interpreting any positive confirmed results.
  204         (c) Specimen collection, storage, and transportation to the
  205  testing site shall be performed in a manner that which will
  206  reasonably preclude specimen contamination or adulteration.
  207         (d) Each initial and confirmation test conducted under this
  208  section, not including the taking or collecting of a specimen to
  209  be tested, shall be conducted by a licensed laboratory as
  210  described in subsection (12).
  211         (e) A specimen for a drug test may be taken or collected by
  212  any of the following persons:
  213         1. A physician, a physician’s assistant, a registered
  214  professional nurse, a licensed practical nurse, a nurse
  215  practitioner, or a certified paramedic who is present at the
  216  scene of an accident for the purpose of rendering emergency
  217  medical service or treatment.
  218         2. A qualified person employed by a licensed laboratory.
  219         (f) A person who collects or takes a specimen for a drug
  220  test conducted pursuant to this section shall collect an amount
  221  sufficient for two drug tests as determined by the Agency for
  222  Health Care Administration.
  223         (g) Any drug test conducted or requested by an employer may
  224  occur before, during, or immediately after the regular work
  225  period of the employee, and shall be deemed to be performed
  226  during work time for the purposes of determining compensation
  227  and benefits for the employee.
  228         (h) Every specimen that produces a positive confirmed
  229  result shall be preserved by the licensed laboratory that
  230  conducts the confirmation test for a period of at least 210 days
  231  from the time the results of the positive confirmation test are
  232  mailed or otherwise delivered to the employer. However, if an
  233  employee or job applicant undertakes an administrative or legal
  234  challenge to the test result, the employee or job applicant
  235  shall notify the laboratory and the sample shall be retained by
  236  the laboratory until the case or administrative appeal is
  237  settled. During the 180-day period after written notification of
  238  a positive test result, the employee or job applicant who has
  239  provided the specimen shall be permitted by the employer to have
  240  a portion of the specimen retested, at the employee or job
  241  applicant’s expense, at another laboratory, licensed and
  242  approved by the Agency for Health Care Administration, chosen by
  243  the employee or job applicant. The second laboratory must test
  244  at equal or greater sensitivity for the drug in question as the
  245  first laboratory. The first laboratory that which performed the
  246  test for the employer is shall be responsible for the transfer
  247  of the portion of the specimen to be retested, and for the
  248  integrity of the chain of custody during such transfer.
  249         (i) Within 5 working days after receipt of a positive
  250  confirmed test result from the testing laboratory, an employer
  251  shall inform an employee or job applicant in writing of such
  252  positive test result, the consequences of such results, and the
  253  options available to the employee or job applicant.
  254         (j) The employer shall provide to the employee or job
  255  applicant, upon request, a copy of the test results.
  256         (k) Within 5 working days after receiving notice of a
  257  positive confirmed test result, the employee or job applicant
  258  may submit information to an employer explaining or contesting
  259  the test results, and why the results do not constitute a
  260  violation of the employer’s policy.
  261         (l) If an employee or job applicant’s explanation or
  262  challenge of the positive test results is unsatisfactory to the
  263  employer, a written explanation as to why the employee or job
  264  applicant’s explanation is unsatisfactory, along with the report
  265  of positive results, shall be provided by the employer to the
  266  employee or job applicant. All such documentation shall be kept
  267  confidential and exempt from the provisions of s. 119.07(1) by
  268  the employer pursuant to subsection (11) and shall be retained
  269  by the employer for at least 1 year.
  270         (m) An No employer may not discharge, discipline, refuse to
  271  hire, discriminate against, or request or require rehabilitation
  272  of an employee or job applicant on the sole basis of a positive
  273  test result that has not been verified by a confirmation test.
  274         (n) In addition to the limitation under paragraph (m):
  275         1. Except as provided in subparagraph 3., no employer may
  276  discharge, discipline, or discriminate against an employee on
  277  the sole basis of the employee’s first positive confirmed drug
  278  test, unless the employer has first given the employee an
  279  opportunity to participate in, at the employee’s own expense or
  280  pursuant to coverage under a health insurance plan, an employee
  281  assistance program or an alcohol and drug rehabilitation
  282  program, and:
  283         a. The employee has either refused to participate in the
  284  employee assistance program or the alcohol and drug
  285  rehabilitation program or has failed to successfully complete
  286  such program, as evidenced by withdrawal from the program before
  287  its completion or a report from the program indicating
  288  unsatisfactory compliance, or by a positive test result on a
  289  confirmation test after completion of the program; or
  290         b. The employee has failed or refused to sign a written
  291  consent form allowing the employer to obtain information
  292  regarding the progress and successful completion of an employee
  293  assistance program or an alcohol and drug rehabilitation
  294  program.
  295         2. An employee in a safety-sensitive position shall be
  296  placed by the employer in a non-safety-sensitive position, or if
  297  such position is unavailable, on leave status while
  298  participating in an employee assistance program or an alcohol
  299  and drug rehabilitation program. If placed on leave status
  300  without pay, the employee shall be permitted to use any
  301  accumulated leave credits prior to being placed on leave without
  302  pay.
  303         3. A special risk employee may be discharged or disciplined
  304  for the first positive confirmed drug test result when illicit
  305  drugs, pursuant to s. 893.13, are confirmed. No special risk
  306  employee shall be permitted to continue work in a safety
  307  sensitive position, but may be placed either in a non-safety
  308  sensitive position or on leave status while participating in an
  309  employee assistance program or an alcohol and drug
  310  rehabilitation program.
  311         (n)(o) Upon successful completion of an employee assistance
  312  program or an alcohol and drug rehabilitation program, the
  313  employee shall be reinstated to the same or equivalent position
  314  that was held prior to such rehabilitation.
  315         (o)(p)An No employer may not discharge, discipline, or
  316  discriminate against an employee, or refuse to hire a job
  317  applicant, on the basis of any prior medical history revealed to
  318  the employer pursuant to this section.
  319         (p)(q) An employer who performs drug testing or specimen
  320  collection shall use chain-of-custody procedures as established
  321  by the Agency for Health Care Administration to ensure proper
  322  recordkeeping, handling, labeling, and identification of all
  323  specimens to be tested.
  324         (q)(r) An employer shall pay the cost of all drug tests,
  325  initial and confirmation, which the employer requires of
  326  employees.
  327         (r)(s) An employee or job applicant shall pay the costs of
  328  any additional drug tests not required by the employer.
  329         (s)(t)An No employer may not shall discharge, discipline,
  330  or discriminate against an employee solely upon voluntarily
  331  seeking treatment, while under the employ of the employer, for a
  332  drug-related problem if the employee has not previously tested
  333  positive for drug use, entered an employee assistance program
  334  for drug-related problems, or entered an alcohol and drug
  335  rehabilitation program. However, special risk employees may be
  336  subject to discharge or disciplinary action when the presence of
  337  illicit drugs, pursuant to s. 893.13, is confirmed.
  338         (t)(u)If Where testing is conducted based on reasonable
  339  suspicion, each employer shall promptly detail in writing the
  340  circumstances which formed the basis of the determination that
  341  reasonable suspicion existed to warrant the testing. A copy of
  342  this documentation shall be given to the employee upon request
  343  and the original documentation shall be kept confidential and
  344  exempt from the provisions of s. 119.07(1) by the employer
  345  pursuant to subsection (11) and retained by the employer for at
  346  least 1 year.
  347         (u)(v) If an employee is unable to participate in
  348  outpatient rehabilitation, the employee may be placed on leave
  349  status while participating in an employee assistance program or
  350  an alcohol and drug rehabilitation program. If placed on leave
  351  without-pay status, the employee shall be permitted to use any
  352  accumulated leave credits prior to being placed on leave without
  353  pay. Upon successful completion of an employee assistance
  354  program or an alcohol and drug rehabilitation program, the
  355  employee shall be reinstated to the same or equivalent position
  356  that was held prior to such rehabilitation.
  357         (10) EMPLOYER PROTECTION.—
  358         (h) An employer may discharge or discipline shall refer an
  359  employee following with a first-time positive confirmed drug
  360  test result. If the employer does not discharge the employee,
  361  the employer may refer the employee to an employee assistance
  362  program or an alcohol and drug rehabilitation program in which
  363  the employee may participate at the expense of the employee or
  364  pursuant to a health insurance plan, unless such employee is
  365  discharged as provided in subparagraph (8)(n)3. If the results
  366  of a subsequent confirmed drug test are positive, the employer
  367  may discharge or discipline the employee.
  368         1.If an employer refers an employee to an employee
  369  assistance program, the employer must determine whether the
  370  employee is able to safely and effectively perform the job
  371  duties assigned to the employee while the employee participates
  372  in the employee assistance program.
  373         2. An employee whose assigned duties require the employee
  374  to carry a firearm, work closely with an employee who carries a
  375  firearm, perform life-threatening procedures, work with heavy or
  376  dangerous machinery, work as a safety inspector, work with
  377  children, work with detainees in the correctional system, work
  378  with confidential information or documents pertaining to
  379  criminal investigations, work with controlled substances, hold a
  380  position subject to s. 110.1127, or hold a position in which a
  381  momentary lapse in attention could result in injury or death to
  382  another person, is deemed unable to safely and effectively
  383  perform the job duties assigned to the employee while the
  384  employee participates in the employee assistance program.
  385         3.If an employer refers an employee to an employee
  386  assistance program and the employer determines that the employee
  387  is unable, or the employee is deemed unable, to safely and
  388  effectively perform the job duties assigned to the employee
  389  before he or she completes the employee assistance program, the
  390  employer shall place the employee in a job assignment that the
  391  employer determines the employee can safely and effectively
  392  perform while participating in the employee assistance program.
  393         4. If a job assignment in which the employee may safely and
  394  effectively perform is unavailable, the employer shall place the
  395  employee on leave status while the employee is participating in
  396  an employee assistance program. If placed on leave status
  397  without pay, the employee may use accumulated leave credits
  398  before being placed on leave without pay.
  399         (i) Nothing in This section does not shall be construed to
  400  prohibit an employer from conducting medical screening or other
  401  tests required by any statute, rule, or regulation for the
  402  purpose of monitoring exposure of employees to toxic or other
  403  unhealthy substances in the workplace or in the performance of
  404  job responsibilities. Such screening or tests shall be limited
  405  to the specific substances expressly identified in the
  406  applicable statute, rule, or regulation, unless prior written
  407  consent of the employee is obtained for other tests.
  408         (j) An employer shall place a safety-sensitive position
  409  employee whose drug test result is confirmed positive in a non
  410  safety-sensitive position, or if such a position is unavailable,
  411  on leave status while the employee participates in an employee
  412  assistance program or an alcohol and drug rehabilitation
  413  program. If placed on leave status without pay, the employee
  414  shall be permitted to use any accumulated leave credits prior to
  415  being placed on leave without pay.
  416         (k)A special risk employee may be discharged or
  417  disciplined on the first positive confirmed drug test result
  418  when illicit drugs, pursuant to s. 893.13, are confirmed. No
  419  special risk employee shall be permitted to continue work in a
  420  safety-sensitive position, but may be placed either in a non
  421  safety-sensitive position or on leave status while participating
  422  in an employee assistance program or an alcohol and drug
  423  rehabilitation program.
  424         Section 2. Paragraphs (j) and (o) of subsection (1),
  425  subsection (2), paragraph (g) of subsection (7), and subsections
  426  (11), (13), (14), and (15) of section 440.102, Florida Statutes,
  427  are amended to read:
  428         440.102 Drug-free workplace program requirements.—The
  429  following provisions apply to a drug-free workplace program
  430  implemented pursuant to law or to rules adopted by the Agency
  431  for Health Care Administration:
  432         (1) DEFINITIONS.—Except where the context otherwise
  433  requires, as used in this act:
  434         (j) “Job applicant” means a person who has applied for a
  435  position with an employer and has been offered employment
  436  conditioned upon successfully passing a drug test, and may have
  437  begun work pending the results of the drug test. For a public
  438  employer, “job applicant” means only a person who has applied
  439  for a special-risk or mandatory-testing safety-sensitive
  440  position.
  441         (o) “Mandatory-testing position” means, with respect to a
  442  public employer, a job assignment that requires the employee to
  443  carry a firearm, work closely with an employee who carries a
  444  firearm, perform life-threatening procedures, work with heavy or
  445  dangerous machinery, work as a safety inspector, work with
  446  children, work with detainees in the correctional system, work
  447  with confidential information or documents pertaining to
  448  criminal investigations, or work with controlled substances; a
  449  job assignment that requires an employee security background
  450  check pursuant to s. 110.1127; or a job assignment in which a
  451  momentary lapse in attention could result in injury or death to
  452  another person. “Safety-sensitive position” means, with respect
  453  to a public employer, a position in which a drug impairment
  454  constitutes an immediate and direct threat to public health or
  455  safety, such as a position that requires the employee to carry a
  456  firearm, perform life-threatening procedures, work with
  457  confidential information or documents pertaining to criminal
  458  investigations, or work with controlled substances; a position
  459  subject to s. 110.1127; or a position in which a momentary lapse
  460  in attention could result in injury or death to another person.
  461         (2) DRUG TESTING.—An employer may test an employee or job
  462  applicant for any drug described in paragraph (1)(c). In order
  463  to qualify as having established a drug-free workplace program
  464  under this section and to qualify for the discounts provided
  465  under s. 627.0915 and deny medical and indemnity benefits under
  466  this chapter, an employer must, at a minimum, implement drug
  467  testing that conforms to the standards and procedures
  468  established in this section and all applicable rules adopted
  469  pursuant to this section as required in subsection (4). However,
  470  an employer does not have a legal duty under this section to
  471  request an employee or job applicant to undergo drug testing. If
  472  an employer fails to maintain a drug-free workplace program in
  473  accordance with the standards and procedures established in this
  474  section and in applicable rules, the employer is ineligible for
  475  discounts under s. 627.0915. However, an employer qualifies for
  476  discounts under s. 627.0915 if the employer maintains a drug
  477  free workplace program that is broader in scope than that
  478  provided for by the standards and procedures established in this
  479  section. An employer who qualifies All employers qualifying for
  480  and receives receiving discounts provided under s. 627.0915 must
  481  be reported annually by the insurer to the department.
  482         (7) EMPLOYER PROTECTION.—
  483         (g) This section does not prohibit an employer from
  484  conducting medical screening or other tests required, permitted,
  485  or not disallowed by any statute, rule, or regulation for the
  486  purpose of monitoring exposure of employees to toxic or other
  487  unhealthy substances in the workplace or in the performance of
  488  job responsibilities. Such screening or testing is limited to
  489  the specific substances expressly identified in the applicable
  490  statute, rule, or regulation, unless prior written consent of
  491  the employee is obtained for other tests. Such screening or
  492  testing need not be in compliance with the rules adopted by the
  493  Agency for Health Care Administration under this chapter or
  494  under s. 112.0455. A public employer may, through the use of an
  495  unbiased selection procedure, conduct random drug tests of
  496  employees occupying mandatory-testing safety-sensitive or
  497  special-risk positions if the testing is performed in accordance
  498  with drug-testing rules adopted by the Agency for Health Care
  499  Administration and the department. If applicable, random drug
  500  testing must be specified in a collective bargaining agreement
  501  as negotiated by the appropriate certified bargaining agent
  502  before such testing is implemented.
  503         (11) PUBLIC EMPLOYEES IN MANDATORY-TESTING SAFETY-SENSITIVE
  504  OR SPECIAL-RISK POSITIONS.—
  505         (a) If an employee who is employed by a public employer in
  506  a mandatory-testing safety-sensitive position enters an employee
  507  assistance program or drug rehabilitation program, the employer
  508  must assign the employee to a position other than a mandatory
  509  testing safety-sensitive position or, if such position is not
  510  available, place the employee on leave while the employee is
  511  participating in the program. However, the employee shall be
  512  permitted to use any accumulated annual leave credits before
  513  leave may be ordered without pay.
  514         (b) An employee who is employed by a public employer in a
  515  special-risk position may be discharged or disciplined by a
  516  public employer for the first positive confirmed test result if
  517  the drug confirmed is an illicit drug under s. 893.03. A
  518  special-risk employee who is participating in an employee
  519  assistance program or drug rehabilitation program may not be
  520  allowed to continue to work in any special-risk or mandatory
  521  testing safety-sensitive position of the public employer, but
  522  may be assigned to a position other than a mandatory-testing
  523  safety-sensitive position or placed on leave while the employee
  524  is participating in the program. However, the employee shall be
  525  permitted to use any accumulated annual leave credits before
  526  leave may be ordered without pay.
  527         (13) COLLECTIVE BARGAINING RIGHTS.—
  528         (a) This section does not eliminate the bargainable rights
  529  as provided in the collective bargaining process if applicable.
  530         (b) Drug-free workplace program requirements pursuant to
  531  this section shall be a mandatory topic of negotiations with any
  532  certified collective bargaining agent for nonfederal public
  533  sector employers that operate under a collective bargaining
  534  agreement.
  535         (13)(14) APPLICABILITY.—A drug testing policy or procedure
  536  adopted by an employer pursuant to this chapter shall be applied
  537  equally to all employee classifications where the employee is
  538  subject to workers’ compensation coverage.
  539         (14)(15) STATE CONSTRUCTION CONTRACTS.—Each construction
  540  contractor regulated under part I of chapter 489, and each
  541  electrical contractor and alarm system contractor regulated
  542  under part II of chapter 489, who contracts to perform
  543  construction work under a state contract for educational
  544  facilities governed by chapter 1013, for public property or
  545  publicly owned buildings governed by chapter 255, or for state
  546  correctional facilities governed by chapter 944 shall implement
  547  a drug-free workplace program under this section.
  548         Section 3. Section 944.474, Florida Statutes, is amended to
  549  read:
  550         944.474 Legislative intent; employee wellness program; drug
  551  and alcohol testing.—
  552         (1) It is the intent of the Legislature that the state
  553  correctional system provide a safe and secure environment for
  554  both inmates and staff. A healthy workforce is a productive
  555  workforce, and security of the state correctional system can
  556  best be provided by strong and healthy employees. The Department
  557  of Corrections may develop and implement an employee wellness
  558  program. The program may include, but is not limited to,
  559  wellness education, smoking cessation, nutritional education,
  560  and overall health-risk reduction, including the effects of
  561  using drugs and alcohol.
  562         (2) An employee Under no circumstances shall employees of
  563  the department may not test positive for illegal use of
  564  controlled substances. An employee of the department may not be
  565  under the influence of alcohol while on duty. In order to ensure
  566  that these prohibitions are adhered to by all employees of the
  567  department and notwithstanding s. 112.0455, the department may
  568  develop a program for the drug testing of all job applicants and
  569  for the random drug testing of all employees. The department may
  570  randomly evaluate employees for the contemporaneous use or
  571  influence of alcohol through the use of alcohol tests and
  572  observation methods. Notwithstanding s. 112.0455, the department
  573  may develop a program for the reasonable suspicion drug testing
  574  of employees who are in safety-sensitive or special risk
  575  positions, as defined in s. 112.0455(5), for the controlled
  576  substances listed in s. 893.03(3)(d). The reasonable suspicion
  577  drug testing authorized by this subsection shall be conducted in
  578  accordance with s. 112.0455, but may also include testing upon
  579  reasonable suspicion based on violent acts or violent behavior
  580  of an employee who is on or off duty. The department shall adopt
  581  rules pursuant to ss. 120.536(1) and 120.54 that are necessary
  582  to administer this subsection.
  583         Section 4. This act shall take effect July 1, 2012.