Florida Senate - 2020 SB 1186
By Senator Baxley
1 A bill to be entitled
2 An act relating to drug-free workplaces; amending s.
3 112.0455, F.S.; requiring licensed drug-testing
4 facilities to perform prescreening tests on urine
5 specimens to determine the specimens’ validity;
6 specifying requirements for such tests; authorizing
7 such facilities to rely on such tests to determine if
8 confirmation testing is required; providing that urine
9 specimens may not be sent to an out-of-state facility
10 unless the facility complies with certain
11 requirements; authorizing the Agency for Health Care
12 Administration to adopt rules; conforming cross
13 references; amending s. 440.102, F.S.; revising
14 definitions; revising information required in a
15 written policy statement provided to employees and job
16 applicants before drug testing; revising procedures
17 for specimen collection, testing, and preservation;
18 revising qualifications for persons who may take or
19 collect specimens for a drug test; revising
20 requirements and procedures for retesting specimens;
21 deleting and revising confidentiality requirements for
22 employers relating to certain information; revising
23 circumstances under which an employer may take certain
24 actions as to an employee or a job applicant on the
25 sole basis of certain positive test results; revising
26 standards for chain-of-custody procedures; revising
27 requirements and authorized actions relating to
28 confirmation testing; requiring licensed drug-testing
29 facilities to perform prescreening tests on urine
30 specimens to determine the specimens’ validity;
31 specifying requirements for such tests; authorizing
32 such facilities to rely on such tests to determine if
33 confirmation testing is required; providing that urine
34 specimens may not be sent to an out-of-state facility
35 unless the facility complies with certain
36 requirements; authorizing the agency to adopt rules;
37 conforming provisions to changes made by the act;
38 amending s. 443.101, F.S.; conforming a cross
39 reference; providing an effective date.
41 WHEREAS, the State of Florida has a profound interest in
42 the health and welfare of its citizens, and
43 WHEREAS, new and emerging drug-testing subversion
44 technologies represent a significant threat to the ability to
45 properly identify those suffering from addiction and drug abuse,
47 WHEREAS, the Legislature, therefore, seeks to require urine
48 sample validity testing, such that those persons being tested
49 can be properly and promptly identified for referral to drug
50 treatment programs and other health care services, NOW,
53 Be It Enacted by the Legislature of the State of Florida:
55 Section 1. Present subsections (13) through (17) of section
56 112.0455, Florida Statutes, are redesignated as subsections (14)
57 through (18), respectively, a new subsection (13) is added to
58 that section, and paragraph (b) of subsection (6) and paragraph
59 (a) of present subsection (15) are amended, to read:
60 112.0455 Drug-Free Workplace Act.—
61 (6) NOTICE TO EMPLOYEES.—
62 (b) Prior to testing, all employees and job applicants for
63 employment shall be given a written policy statement from the
64 employer which contains:
65 1. A general statement of the employer’s policy on employee
66 drug use, which shall identify:
67 a. The types of testing an employee or job applicant may be
68 required to submit to, including reasonable suspicion or other
69 basis; and
70 b. The actions the employer may take against an employee or
71 job applicant on the basis of a positive confirmed drug test
73 2. A statement advising the employee or job applicant of
74 the existence of this section.
75 3. A general statement concerning confidentiality.
76 4. Procedures for employees and job applicants to
77 confidentially report the use of prescription or nonprescription
78 medications both before and after being tested. Additionally,
79 employees and job applicants shall receive notice of the most
80 common medications by brand name or common name, as applicable,
81 as well as by chemical name, which may alter or affect a drug
82 test. A list of such medications shall be developed by the
83 Agency for Health Care Administration.
84 5. The consequences of refusing to submit to a drug test.
85 6. Names, addresses, and telephone numbers of employee
86 assistance programs and local alcohol and drug rehabilitation
88 7. A statement that an employee or job applicant who
89 receives a positive confirmed drug test result may contest or
90 explain the result to the employer within 5 working days after
91 written notification of the positive test result. If an employee
92 or job applicant’s explanation or challenge is unsatisfactory to
93 the employer, the person may contest the drug test result as
94 provided by subsections (15)
(14) and (16) (15).
95 8. A statement informing the employee or job applicant of
96 his or her responsibility to notify the laboratory of any
97 administrative or civil actions brought pursuant to this
99 9. A list of all drugs for which the employer will test,
100 described by brand names or common names, as applicable, as well
101 as by chemical names.
102 10. A statement regarding any applicable collective
103 bargaining agreement or contract and the right to appeal to the
104 Public Employees Relations Commission.
105 11. A statement notifying employees and job applicants of
106 their right to consult the testing laboratory for technical
107 information regarding prescription and nonprescription
109 (13) DRUG-TESTING STANDARDS; SAMPLE VALIDITY PRESCREENING.
110 Before a drug-testing facility licensed under part II of chapter
111 408 may perform any drug-screening test on a urine specimen
112 collected in this state, prescreening tests must be performed to
113 determine the validity of the specimen. The prescreening tests
114 must be capable of detecting, or detecting and defeating, novel
115 or emerging urine drug-testing subversion technologies as
116 described in this subsection.
117 (a) The drug-testing facility shall use urine sample
118 validity screening tests that meet all of the following
120 1. A urine sample validity screening test for creatinine
121 must use a 20 mg/dL cutoff concentration and must have minimal
122 interferences from bilirubin and blood in the urine. The urine
123 sample validity screening test must be able to discriminate
124 between a creatinine level from an unadulterated urine sample
125 and a creatinine level arising from overhydration or creatine or
126 protein loading.
127 2. A urine sample validity screening test for oxidants must
128 be able to detect the presence or effects of oxidant adulterants
129 up to 6 days after sample collection, under the sample storage
130 conditions outlined in the laboratory standards guideline
131 adopted by rule by the Agency for Health Care Administration,
132 and after any sample transport that is routinely involved.
133 3. Urine sample validity screening tests must be able to
134 detect synthetic or freeze-dried urine substituted for the
135 donor’s urine for drug testing.
136 4. Urine sample validity screening tests must be validated
137 for the detection of all of the additional adulterant classes
138 represented by glutaraldehyde, salt, heavy metals, cationic
139 detergents, protease, strong alkaline buffers, and strong acidic
140 buffers. The detection limits of these classes must be at a
141 sufficient level to detect a nonphysiologic sample or
142 interference with enzyme immunoassay drug screening tests.
143 (b) The drug-testing facility may use only urine sample
144 validity screening tests that have undergone validation studies
145 conducted by the manufacturer to document the product’s
146 conformance to the requirements of this subsection.
147 (c) A drug-testing facility may rely on urine sample
148 validity screening tests to determine if confirmation testing is
149 required for any urine sample that has been deemed invalid for
150 drug screening.
151 (d) Urine specimens collected in this state may not be sent
152 for drug screening tests to a drug-testing facility located
153 outside of this state unless such drug-testing facility complies
154 with all requirements of this subsection.
155 (e) The Agency for Health Care Administration shall adopt
156 rules necessary for the implementation and enforcement of this
158 (16) (15) NONDISCIPLINE REMEDIES.—
159 (a) Any person alleging a violation of the provisions of
160 this section, that is not remediable by the commission or an
161 arbitrator pursuant to subsection (15) (14), must institute a
162 civil action for injunctive relief or damages, or both, in a
163 court of competent jurisdiction within 180 days of the alleged
164 violation, or be barred from obtaining the following relief.
165 Relief is limited to:
166 1. An order restraining the continued violation of this
168 2. An award of the costs of litigation, expert witness
169 fees, reasonable attorney attorney’s fees, and noneconomic
170 damages provided that damages shall be limited to the recovery
171 of damages directly resulting from injury or loss caused by each
172 violation of this section.
173 Section 2. Present subsections (9) through (15) of section
174 440.102, Florida Statutes, are redesignated as subsections (10)
175 through (16), respectively, a new subsection (9) is added to
176 that section, and paragraphs (c), (e), and (q) of subsection
177 (1), paragraph (a) of subsection (3), paragraphs (b) through
178 (h), (j), (k), and (l) of subsection (5), subsection (6),
179 paragraph (a) of subsection (7), and paragraphs (b) and (c) of
180 present subsection (9) of that section are amended, to read:
181 440.102 Drug-free workplace program requirements.—The
182 following provisions apply to a drug-free workplace program
183 implemented pursuant to law or to rules adopted by the Agency
184 for Health Care Administration:
185 (1) DEFINITIONS.—Except where the context otherwise
186 requires, as used in this act:
187 (c) “Drug” means any form of alcohol, as defined in s.
188 322.01(2), including a distilled spirit, wine, a malt beverage,
189 or an intoxicating preparation; any controlled substance
190 identified under Schedule I, Schedule II, Schedule III, Schedule
191 IV, or Schedule V of s. 893.03; any controlled substance
192 identified under Schedule I, Schedule II, Schedule III, Schedule
193 IV, or Schedule V of the Controlled Substances Act, 21 U.S.C. s.
194 812(c) liquor; an amphetamine; a cannabinoid; cocaine;
195 phencyclidine (PCP); a hallucinogen; methaqualone; an opiate; a
196 barbiturate; a benzodiazepine; a synthetic narcotic; a designer
197 drug; or a metabolite of any of the substances listed in this
198 paragraph. An employer may test an individual for any or all of
199 such drugs.
200 (e) “Drug test” or “test” means any chemical, biological,
201 or physical instrumental analysis administered , by a laboratory
202 certified by the United States Department of Health and Human
203 Services or licensed by the Agency for Health Care
204 Administration , for the purpose of determining the presence or
205 absence of a drug or its metabolites. In the case of testing for
206 the presence of alcohol, the test must be conducted in
207 accordance with the United States Department of Transportation
208 alcohol testing procedures authorized under 49 C.F.R. part 40,
209 subparts J through M.
210 (q) “Specimen” means tissue, hair, or a product of the
211 human body capable of revealing the presence of drugs or their
212 metabolites, as approved by the United States Food and Drug
213 Administration, or the Agency for Health Care Administration,
214 the United States Department of Health and Human Services, or
215 the United States Department of Transportation.
216 (3) NOTICE TO EMPLOYEES AND JOB APPLICANTS.—
217 (a) One time only, before prior to testing, an employer
218 shall give all employees and job applicants for employment a
219 written policy statement that which contains:
220 1. A general statement of the employer’s policy on employee
221 drug use, which must identify:
222 a. The types of drug testing an employee or job applicant
223 may be required to submit to, including reasonable-suspicion
224 drug testing or drug testing conducted on any other basis.
225 b. The actions the employer may take against an employee or
226 job applicant on the basis of a positive confirmed drug test
228 2. A statement advising the employee or job applicant of
229 the existence of this section.
230 3. A general statement concerning confidentiality.
231 4. Procedures for employees and job applicants to
232 confidentially report to a medical review officer the use of
233 prescription or nonprescription medications to a medical review
234 officer both before and after being tested.
235 5. A list of the most common medications, by brand name or
236 common name, as applicable, as well as by chemical name, which
237 may alter or affect a drug test. A list of such medications as
238 developed by the Agency for Health Care Administration shall be
239 available to employers through the department.
240 6. The consequences of refusing to submit to a drug test.
241 7. A representative sampling of names, addresses, and
242 telephone numbers of employee assistance programs and local drug
243 rehabilitation programs.
244 8. A statement that an employee or job applicant who
245 receives a positive confirmed test result may contest or explain
246 the result to the medical review officer within 5 working days
247 after receiving written notification of the test result; that if
248 an employee’s or job applicant’s explanation or challenge is
249 unsatisfactory to the medical review officer, the medical review
250 officer shall report a positive test result back to the
251 employer; and that a person may contest the drug test result
252 pursuant to law or to rules adopted by the Agency for Health
253 Care Administration.
254 9. A statement informing the employee or job applicant of
255 his or her responsibility to notify the laboratory of any
256 administrative or civil action brought pursuant to this section.
257 10. A list of all drugs for which the employer will test,
258 described by brand name or common name, as applicable, as well
259 as by chemical name.
260 11. A statement regarding any applicable collective
261 bargaining agreement or contract and the right to appeal to the
262 Public Employees Relations Commission or applicable court.
263 12. A statement notifying employees and job applicants of
264 their right to consult with a medical review officer for
265 technical information regarding prescription or nonprescription
267 (5) PROCEDURES AND EMPLOYEE PROTECTION.—All specimen
268 collection and testing for drugs under this section shall be
269 performed in accordance with the following procedures:
270 (b) Specimen collection must be documented, and the
271 documentation procedures shall include the :
272 1. labeling of specimen containers so as to reasonably
273 preclude the likelihood of erroneous identification of test
274 results. For saliva or breath alcohol testing, a specimen
275 container is not required if the specimen is not being
276 transported to a laboratory for analysis
277 2. A form for the employee or job applicant to provide any
278 information he or she considers relevant to the test, including
279 identification of currently or recently used prescription or
280 nonprescription medication or other relevant medical
281 information. The form must provide notice of the most common
282 medications by brand name or common name, as applicable, as well
283 as by chemical name, which may alter or affect a drug test. The
284 providing of information shall not preclude the administration
285 of the drug test, but shall be taken into account in
286 interpreting any positive confirmed test result.
287 (c) Specimen collection, storage, and transportation to a
288 laboratory the testing site shall be performed in a manner that
289 reasonably precludes contamination or adulteration of specimens.
290 (d) Each confirmation test conducted under this section,
291 not including the taking or collecting of a specimen to be
292 tested, shall be conducted by a licensed or certified laboratory
293 as described in subsection (10) (9).
294 (e) A specimen for a drug test may be taken or collected by
295 any person who meets the qualification standards for urine or
296 oral fluid specimen collection as specified by the United States
297 Department of Health and Human Services or the United States
298 Department of Transportation. For alcohol testing, a person must
299 meet the United States Department of Transportation standards
300 for a screening test technician or a breath alcohol technician.
301 A hair specimen may be collected and packaged by a person who
302 has been trained and certified by a drug-testing laboratory. A
303 person who directly supervises an employee subject to testing
304 may not serve as the specimen collector for that employee unless
305 there is no other qualified specimen collector available of the
306 following persons:
307 1. A physician, a physician assistant, a registered
308 professional nurse, a licensed practical nurse, or a nurse
309 practitioner or a certified paramedic who is present at the
310 scene of an accident for the purpose of rendering emergency
311 medical service or treatment.
312 2. A qualified person employed by a licensed or certified
313 laboratory as described in subsection (9).
314 (f) A person who collects or takes a specimen for a drug
315 test shall collect an amount sufficient for two independent drug
316 tests, one to screen the specimen and one for confirmation of
317 the screening test results, at a laboratory as determined by the
318 Agency for Health Care Administration.
319 (g) Every specimen that produces a positive, confirmed test
320 result shall be preserved by the licensed or certified
321 laboratory that conducted the confirmation test for a period of
322 at least 1 year after the confirmation test was conducted 210
323 days after the result of the test was mailed or otherwise
324 delivered to the medical review officer. However, if an employee
325 or job applicant undertakes an administrative or legal challenge
326 to the test result, the employee or job applicant shall notify
327 the laboratory and the sample shall be retained by the
328 laboratory until the case or administrative appeal is settled.
329 During the 60-day 180-day period after written notification of a
330 positive test result, the employee or job applicant who has
331 provided the specimen shall be permitted by the employer to have
332 a portion of the specimen retested, at the employee’s or job
333 applicant’s expense, at another laboratory, licensed and
334 approved by the Agency for Health Care Administration, chosen by
335 the employee or job applicant. The second laboratory must test
336 the specimen at the limit of detection for the drug or analyte
337 confirmed by the original at equal or greater sensitivity for
338 the drug in question as the first laboratory. If the drug or
339 analyte is detected by the second laboratory, the result must be
340 reported as reconfirmed positive. The first laboratory that
341 performed the test for the employer is responsible for the
342 transfer of the portion of the specimen to be retested, and for
343 the integrity of the chain of custody during such transfer.
344 (h) Within 5 working days after receipt of a positive
345 verified confirmed test result from the medical review officer,
346 an employer shall inform an employee or job applicant in writing
347 of such positive test result, the consequences of such result
348 results, and the options available to the employee or job
349 applicant. The employer shall provide to the employee or job
350 applicant, upon request, a copy of the test results.
351 (j) The employee’s or job applicant’s explanation or
352 challenge of the positive test result is unsatisfactory to the
353 employer, a written explanation as to why the employee’s or job
354 applicant’s explanation is unsatisfactory, along with the report
355 of positive result, shall be provided by the employer to the
356 employee or job applicant; and All such documentation of a
357 positive test shall be kept confidential by the employer
358 pursuant to subsection (8) and shall be retained by the employer
359 for at least 1 year.
360 (k) An employer may not discharge, discipline, refuse to
361 hire, discriminate against, or request or require rehabilitation
362 of an employee or job applicant on the sole basis of a positive
363 test result that has not been reviewed and verified by a
364 confirmation test and by a medical review officer, except when a
365 confirmed positive breath alcohol test was conducted in
366 accordance with United States Department of Transportation
367 alcohol testing procedures.
368 (l) An employer that performs drug testing or specimen
369 collection shall use chain-of-custody procedures established by
370 the Agency for Health Care Administration, the United States
371 Department of Health and Human Services, or the United States
372 Department of Transportation to ensure proper recordkeeping,
373 handling, labeling, and identification of all specimens tested.
374 (6) CONFIRMATION TESTING.—
375 (a) If an initial drug test is negative, the employer may
376 in its sole discretion seek a confirmation test.
377 (b) Only licensed or certified laboratories as described in
378 subsection (9) may conduct confirmation drug tests.
379 (c) All laboratory positive initial tests on a urine, oral
380 fluid, blood, or hair specimen shall be confirmed using gas
381 chromatography/mass spectrometry (GC/MS) or an equivalent or
382 more accurate scientifically accepted method approved by the
383 United States Department of Health and Human Services or the
384 United States Department of Transportation Agency for Health
385 Care Administration or the United States Food and Drug
386 Administration as such technology becomes available in a cost
387 effective form.
388 (b) (d) If a an initial drug test of an employee or job
389 applicant is confirmed by the laboratory as positive, the
390 employer’s medical review officer shall provide technical
391 assistance to the employer and to the employee or job applicant
392 for the purpose of interpreting the test result to determine
393 whether the result could have been caused by prescription or
394 nonprescription medication taken by the employee or job
396 (c) For a breath alcohol test, an initial positive result
397 must be confirmed by a second breath specimen taken and tested
398 using an evidential breath testing device listed on the
399 conforming products list issued by the National Highway Traffic
400 Safety Administration and conducted in accordance with United
401 States Department of Transportation alcohol testing procedures
402 authorized under 49 C.F.R. part 40, subparts J through M.
403 (7) EMPLOYER PROTECTION.—
404 (a) An employee or job applicant whose drug test result is
405 confirmed or verified as positive in accordance with this
406 section shall not, by virtue of the result alone, be deemed to
407 have a “handicap” or “disability” as defined under federal,
408 state, or local handicap and disability discrimination laws.
409 (9) DRUG-TESTING STANDARDS; SAMPLE VALIDITY PRESCREENING.
410 Before a drug-testing facility licensed under part II of chapter
411 408 may perform any drug screening test on a urine specimen
412 collected in this state, prescreening tests must be performed to
413 determine the validity of the specimen. The prescreening tests
414 must be capable of detecting, or detecting and defeating, novel
415 or emerging urine drug-testing subversion technologies as
416 described in this subsection.
417 (a) The drug-testing facility shall use urine sample
418 validity screening tests that meet all of the following
420 1. A urine sample validity screening test for creatinine
421 must use a 20 mg/dL cutoff concentration and must have minimal
422 interferences from bilirubin and blood in the urine. The urine
423 sample validity screening test must be able to discriminate
424 between a creatinine level from an unadulterated urine sample
425 and a creatinine level arising from overhydration or creatine or
426 protein loading.
427 2. A urine sample validity screening test for oxidants must
428 be able to detect the presence or effects of oxidant adulterants
429 up to 6 days after sample collection, under the sample storage
430 conditions outlined in the laboratory standards guideline
431 adopted by rule by the Agency for Health Care Administration,
432 and after any sample transport that is routinely involved.
433 3. Urine sample validity screening tests must be able to
434 detect synthetic or freeze-dried urine substituted for the
435 donor’s urine for drug testing.
436 4. Urine sample validity screening tests must be validated
437 for the detection of all of the additional adulterant classes
438 represented by glutaraldehyde, salt, heavy metals, cationic
439 detergents, protease, strong alkaline buffers, and strong acidic
440 buffers. The detection limits of these classes must be at a
441 sufficient level to detect a nonphysiologic sample or
442 interference with enzyme immunoassay drug-screening tests.
443 (b) The drug-testing facility may use only urine sample
444 validity screening tests that have undergone validation studies
445 conducted by the manufacturer to document the product’s
446 conformance to the requirements of this subsection.
447 (c) A drug-testing facility may rely on urine sample
448 validity screening tests to determine if confirmation testing is
449 required for any urine sample that has been deemed invalid for
450 drug screening.
451 (d) Urine specimens collected in this state may not be sent
452 for drug-screening tests to a drug-testing facility located
453 outside of this state unless such drug-testing facility complies
454 with all requirements of this subsection.
455 (e) The Agency for Health Care Administration shall adopt
456 rules necessary for the implementation and enforcement of this
458 (10) (9) DRUG-TESTING STANDARDS FOR LABORATORIES.—
459 (b) A laboratory may analyze initial or confirmation test
460 specimens only if:
461 1. The laboratory obtains a license under part II of
462 chapter 408 and s. 112.0455(18) s. 112.0455(17). Each applicant
463 for licensure and each licensee must comply with all
464 requirements of this section, part II of chapter 408, and
465 applicable rules.
466 2. The laboratory has written procedures to ensure the
467 chain of custody.
468 3. The laboratory follows proper quality control
469 procedures, including, but not limited to:
470 a. The use of internal quality controls, including the use
471 of samples of known concentrations which are used to check the
472 performance and calibration of testing equipment, and periodic
473 use of blind samples for overall accuracy.
474 b. An internal review and certification process for drug
475 test results, conducted by a person qualified to perform that
476 function in the testing laboratory.
477 c. Security measures implemented by the testing laboratory
478 to preclude adulteration of specimens and drug test results.
479 d. Other necessary and proper actions taken to ensure
480 reliable and accurate drug test results.
481 (c) A laboratory shall disclose to the medical review
482 officer a written positive confirmed test result report within 7
483 working days after receipt of the sample. All laboratory reports
484 of a drug test result must, at a minimum, state:
485 1. The name and address of the laboratory that performed
486 the test and the positive identification of the person tested.
487 2. Positive results on confirmation tests only, or negative
488 results, as applicable.
489 3. A list of the drugs for which the drug analyses were
491 4. The type of tests conducted for both initial tests and
492 confirmation tests and the minimum cutoff levels of the tests.
493 5. Any correlation between medication reported by the
494 employee or job applicant pursuant to subparagraph (5)(b)2. and
495 a positive confirmed drug test result.
497 A report must not disclose the presence or absence of any drug
498 other than a specific drug and its metabolites listed pursuant
499 to this section.
500 Section 3. Paragraph (b) of subsection (11) of section
501 443.101, Florida Statutes, is amended to read:
502 443.101 Disqualification for benefits.—An individual shall
503 be disqualified for benefits:
504 (11) If an individual is discharged from employment for
505 drug use as evidenced by a positive, confirmed drug test as
506 provided in paragraph (1)(d), or is rejected for offered
507 employment because of a positive, confirmed drug test as
508 provided in paragraph (2)(c), test results and chain of custody
509 documentation provided to the employer by a licensed and
510 approved drug-testing laboratory is self-authenticating and
511 admissible in reemployment assistance hearings, and such
512 evidence creates a rebuttable presumption that the individual
513 used, or was using, controlled substances, subject to the
514 following conditions:
515 (b) Only laboratories licensed and approved as provided in
516 s. 440.102(10) s. 440.102(9) , or as provided by equivalent or
517 more stringent licensing requirements established by federal law
518 or regulation may perform the drug tests.
519 Section 4. This act shall take effect July 1, 2020.