Florida Senate - 2016 SB 1154
By Senator Bradley
7-01833-16 20161154__
1 A bill to be entitled
2 An act relating to drug-free workplaces; amending s.
3 440.102, F.S.; revising definitions; revising the
4 contents of an employer policy statement with respect
5 to employee drug use; revising the frequency of
6 followup testing; revising specimen collection,
7 verification, and documentation procedures; revising
8 requirements for confirmation testing; revising
9 minimum requirements for laboratory reports of a drug
10 test result; providing an effective date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Paragraphs (c), (e), and (q) of subsection (1),
15 paragraph (a) of subsection (3), paragraph (a) of subsection
16 (4), paragraphs (b) through (l) of subsection (5), subsection
17 (6), paragraph (a) of subsection (7), and paragraph (c) of
18 subsection (9) of section 440.102, Florida Statutes, are amended
19 to read:
20 440.102 Drug-free workplace program requirements.—The
21 following provisions apply to a drug-free workplace program
22 implemented pursuant to law or to rules adopted by the Agency
23 for Health Care Administration:
24 (1) DEFINITIONS.—Except where the context otherwise
25 requires, as used in this act:
26 (c) “Drug” means any form of alcohol, as defined in s.
27 322.01(2), including a distilled spirit, wine, a malt beverage,
28 or an intoxicating preparation, or any controlled substance
29 identified under Schedule I, Schedule II, Schedule III, Schedule
30 IV, or Schedule V of the Controlled Substances Act, 21 U.S.C. s.
31 812(c) liquor; an amphetamine; a cannabinoid; cocaine;
32 phencyclidine (PCP); a hallucinogen; methaqualone; an opiate; a
33 barbiturate; a benzodiazepine; a synthetic narcotic; a designer
34 drug; or a metabolite of any of the substances listed in this
35 paragraph. An employer may test an individual for any or all of
36 such drugs.
37 (e) “Drug test” or “test” means any chemical, biological,
38 or physical instrumental analysis administered, by a laboratory
39 certified by the United States Department of Health and Human
40 Services or licensed by the Agency for Health Care
41 Administration, for the purpose of determining the presence or
42 absence of a drug or its metabolites. In the case of testing for
43 the presence of alcohol, the test shall be conducted in
44 accordance with United States Department of Transportation
45 alcohol testing procedures authorized under 49 C.F.R. part 40,
46 subparts J through M.
47 (q) “Specimen” means tissue, hair, or a product of the
48 human body capable of revealing the presence of drugs or their
49 metabolites, as approved by the United States Food and Drug
50 Administration, or the Agency for Health Care Administration,
51 the United States Department of Health and Human Services, or
52 the United States Department of Transportation.
53 (3) NOTICE TO EMPLOYEES AND JOB APPLICANTS.—
54 (a) One time only, before prior to testing, an employer
55 shall give all employees and job applicants for employment a
56 written policy statement that which contains:
57 1. A general statement of the employer’s policy on employee
58 drug use, which must identify:
59 a. The types of drug testing an employee or job applicant
60 may be required to submit to, including reasonable-suspicion
61 drug testing or drug testing conducted on any other basis.
62 b. The actions the employer may take against an employee or
63 job applicant on the basis of a positive confirmed drug test
64 result.
65 2. A statement advising the employee or job applicant of
66 the existence of this section.
67 3. A general statement concerning confidentiality.
68 4. Procedures for employees and job applicants to
69 confidentially report to a medical review officer the use of
70 prescription or nonprescription medications to a medical review
71 officer both before and after being tested.
72 5. A list of the most common medications, by brand name or
73 common name, as applicable, as well as by chemical name, which
74 may alter or affect a drug test. A list of such medications as
75 developed by the Agency for Health Care Administration shall be
76 available to employers through the department.
77 6. The consequences of refusing to submit to a drug test.
78 7. A representative sampling of names, addresses, and
79 telephone numbers of employee assistance programs and local drug
80 rehabilitation programs.
81 8. A statement that an employee or job applicant who
82 receives a positive confirmed test result may contest or explain
83 the result to the medical review officer within 5 working days
84 after receiving written notification of the test result; that if
85 an employee’s or job applicant’s explanation or challenge is
86 unsatisfactory to the medical review officer, the medical review
87 officer shall report a positive test result back to the
88 employer; and that a person may contest the drug test result
89 pursuant to law or to rules adopted by the Agency for Health
90 Care Administration.
91 9. A statement informing the employee or job applicant of
92 his or her responsibility to notify the laboratory of any
93 administrative or civil action brought pursuant to this section.
94 10. A list of all drugs for which the employer will test,
95 described by brand name or common name, as applicable, as well
96 as by chemical name.
97 11. A statement regarding any applicable collective
98 bargaining agreement or contract and the right to appeal to the
99 Public Employees Relations Commission or applicable court.
100 12. A statement notifying employees and job applicants of
101 their right to consult with a medical review officer for
102 technical information regarding prescription or nonprescription
103 medication.
104 (4) TYPES OF TESTING.—
105 (a) An employer is required to conduct the following types
106 of drug tests:
107 1. Job applicant drug testing.—An employer must require job
108 applicants to submit to a drug test and may use a refusal to
109 submit to a drug test or a positive confirmed drug test as a
110 basis for refusing to hire a job applicant.
111 2. Reasonable-suspicion drug testing.—An employer must
112 require an employee to submit to reasonable-suspicion drug
113 testing.
114 3. Routine fitness-for-duty drug testing.—An employer must
115 require an employee to submit to a drug test if the test is
116 conducted as part of a routinely scheduled employee fitness-for
117 duty medical examination that is part of the employer’s
118 established policy or that is scheduled routinely for all
119 members of an employment classification or group.
120 4. Followup drug testing.—If the employee in the course of
121 employment enters an employee assistance program for drug
122 related problems, or a drug rehabilitation program, the employer
123 must require the employee to submit to a drug test as a followup
124 to such program, unless the employee voluntarily entered the
125 program. In those cases, the employer has the option to not
126 require followup testing. If followup testing is required, it
127 must be conducted at least six times in the first year, and the
128 period for followup testing may be extended for up to 5 years
129 once a year for a 2-year period after completion of the program.
130 Advance notice of a followup testing date must not be given to
131 the employee to be tested.
132 (5) PROCEDURES AND EMPLOYEE PROTECTION.—All specimen
133 collection and testing for drugs under this section shall be
134 performed in accordance with the following procedures:
135 (b) Specimen collection must be documented, and the
136 documentation procedures shall include the:
137 1. labeling of specimen containers so as to reasonably
138 preclude the likelihood of erroneous identification of test
139 results. For saliva or breath alcohol testing, a specimen
140 container is not required if the specimen is not being
141 transported to a laboratory for analysis.
142 2. A form for the employee or job applicant to provide any
143 information he or she considers relevant to the test, including
144 identification of currently or recently used prescription or
145 nonprescription medication or other relevant medical
146 information. The form must provide notice of the most common
147 medications by brand name or common name, as applicable, as well
148 as by chemical name, which may alter or affect a drug test. The
149 providing of information shall not preclude the administration
150 of the drug test, but shall be taken into account in
151 interpreting any positive confirmed test result.
152 (c) Specimen collection, storage, and transportation to a
153 laboratory the testing site shall be performed in a manner that
154 reasonably precludes contamination or adulteration of specimens.
155 (d) Each confirmation test conducted under this section,
156 not including the taking or collecting of a specimen to be
157 tested, shall be conducted by a licensed or certified laboratory
158 as described in subsection (9).
159 (d)(e) A specimen for a drug test may be taken or collected
160 by any person who meets the qualification standards for urine or
161 oral fluid specimen collection as specified by the United States
162 Department of Health and Human Services or the United States
163 Department of Transportation. For alcohol testing, a person must
164 meet the United States Department of Transportation standards
165 for a screening test technician or a breath alcohol technician.
166 A hair specimen may be collected and packaged by a person who
167 has been trained and certified by a drug testing laboratory. A
168 person who directly supervises an employee subject to testing
169 may not serve as the specimen collector for that employee unless
170 there is no other qualified specimen collector available. of the
171 following persons:
172 1. A physician, a physician assistant, a registered
173 professional nurse, a licensed practical nurse, or a nurse
174 practitioner or a certified paramedic who is present at the
175 scene of an accident for the purpose of rendering emergency
176 medical service or treatment.
177 2. A qualified person employed by a licensed or certified
178 laboratory as described in subsection (9).
179 (e)(f) A person who collects or takes a specimen for a drug
180 test shall collect an amount sufficient for two independent drug
181 tests, one to screen the specimen and one for confirmation of
182 the screening results, at a laboratory as determined by the
183 Agency for Health Care Administration.
184 (f)(g) Every specimen that produces a positive, confirmed
185 test result shall be preserved by the licensed or certified
186 laboratory that conducted the confirmation test for a period of
187 at least 1 year after the confirmation test was conducted. A
188 specimen may be retained after the 1-year period if there is an
189 ongoing administrative or legal challenge to the test result 210
190 days after the result of the test was mailed or otherwise
191 delivered to the medical review officer. However, if an employee
192 or job applicant undertakes an administrative or legal challenge
193 to the test result, the employee or job applicant shall notify
194 the laboratory and the sample shall be retained by the
195 laboratory until the case or administrative appeal is settled.
196 During the 5-day 180-day period after written notification of a
197 positive test result, the employee or job applicant who has
198 provided the specimen shall be permitted by the employer to have
199 a portion of the specimen retested, at the employee’s or job
200 applicant’s expense, at another laboratory, licensed and
201 approved by the Agency for Health Care Administration, chosen by
202 the employee or job applicant. The second laboratory must test
203 the specimen at the limit of detection for the analyte confirmed
204 by the original at equal or greater sensitivity for the drug in
205 question as the first laboratory. If the analyte is detected by
206 the second laboratory, the result shall be reported as
207 reconfirmed positive. The first laboratory that performed the
208 test for the employer is responsible for the transfer of the
209 portion of the specimen to be retested, and for the integrity of
210 the chain of custody during such transfer.
211 (g)(h) Within 5 working days after receipt of a positive
212 verified confirmed test result from the medical review officer,
213 an employer shall inform an employee or job applicant in writing
214 of such positive test result, the consequences of such results,
215 and the options available to the employee or job applicant. The
216 employer shall provide to the employee or job applicant, upon
217 request, a copy of the test results.
218 (i) Within 5 working days after receiving notice of a
219 positive confirmed test result, an employee or job applicant may
220 submit information to the employer explaining or contesting the
221 test result, and explaining why the result does not constitute a
222 violation of the employer’s policy.
223 (h)(j) The employee’s or job applicant’s explanation or
224 challenge of the positive test result is unsatisfactory to the
225 employer, a written explanation as to why the employee’s or job
226 applicant’s explanation is unsatisfactory, along with the report
227 of positive result, shall be provided by the employer to the
228 employee or job applicant; and All such documentation of a
229 positive test shall be kept confidential by the employer
230 pursuant to subsection (8) and shall be retained by the employer
231 for at least 1 year.
232 (i)(k) An employer may not discharge, discipline, refuse to
233 hire, discriminate against, or request or require rehabilitation
234 of an employee or job applicant on the sole basis of a positive
235 test result that has not been reviewed and verified by a
236 confirmation test and by a medical review officer, except when a
237 confirmed positive breath alcohol test was conducted in
238 accordance with United States Department of Transportation
239 alcohol testing procedures.
240 (j)(l) An employer that performs drug testing or specimen
241 collection shall use chain-of-custody procedures established by
242 the Agency for Health Care Administration, the United States
243 Department of Health and Human Services, or the United States
244 Department of Transportation to ensure proper recordkeeping,
245 handling, labeling, and identification of all specimens tested.
246 (6) CONFIRMATION TESTING.—
247 (a) If an initial drug test is negative, the employer may
248 in its sole discretion seek a confirmation test.
249 (b) Only licensed or certified laboratories as described in
250 subsection (9) may conduct confirmation drug tests.
251 (a)(c) All laboratory positive initial tests on a urine,
252 oral fluid, blood, or hair specimen shall be confirmed using gas
253 chromatography/mass spectrometry (GC/MS) or an equivalent or
254 more accurate scientifically accepted method approved by the
255 United States Department of Health and Human Services or the
256 United States Department of Transportation Agency for Health
257 Care Administration or the United States Food and Drug
258 Administration as such technology becomes available in a cost
259 effective form.
260 (b)(d) If a an initial drug test of an employee or job
261 applicant is confirmed by the laboratory as positive, the
262 employer’s medical review officer shall provide technical
263 assistance to the employer and to the employee or job applicant
264 for the purpose of interpreting the test result to determine
265 whether the result could have been caused by prescription or
266 nonprescription medication taken by the employee or job
267 applicant.
268 (c) For a breath alcohol test, an initial positive result
269 shall be confirmed by a second breath specimen taken and tested
270 using an evidential breath testing device listed on the
271 conforming products list issued by the National Highway Traffic
272 Safety Administration and conducted in accordance with United
273 States Department of Transportation alcohol testing procedures
274 authorized under 49 C.F.R. part 40, subparts J through M.
275 (7) EMPLOYER PROTECTION.—
276 (a) An employee or job applicant whose drug test result is
277 confirmed or verified as positive in accordance with this
278 section shall not, by virtue of the result alone, be deemed to
279 have a “handicap” or “disability” as defined under federal,
280 state, or local handicap and disability discrimination laws.
281 (9) DRUG-TESTING STANDARDS FOR LABORATORIES.—
282 (c) A laboratory shall disclose to the medical review
283 officer a written positive confirmed test result report within 7
284 working days after receipt of the sample. All laboratory reports
285 of a drug test result must, at a minimum, state:
286 1. The name and address of the laboratory that performed
287 the test and the positive identification of the person tested.
288 2. Positive results on confirmation tests only, or negative
289 results, as applicable.
290 3. A list of the drugs for which the drug analyses were
291 conducted.
292 4. The type of tests conducted for both initial tests and
293 confirmation tests and the minimum cutoff levels of the tests.
294 5. Any correlation between medication reported by the
295 employee or job applicant pursuant to subparagraph (5)(b)2. and
296 a positive confirmed drug test result.
297
298 A report must not disclose the presence or absence of any drug
299 other than a specific drug and its metabolites listed pursuant
300 to this section.
301 Section 2. This act shall take effect July 1, 2016.