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.
   12  Be It Enacted by the Legislature of the State of Florida:
   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.
   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.
  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.
  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.