Bill Text: FL S1186 | 2020 | Regular Session | Introduced
Bill Title: Drug-free Workplaces
Spectrum: Partisan Bill (Republican 2-0)
Status: (Failed) 2020-03-14 - Died in Rules [S1186 Detail]
Download: Florida-2020-S1186-Introduced.html
Florida Senate - 2020 SB 1186 By Senator Baxley 12-00779A-20 20201186__ 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. 40 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, 46 and 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, 51 THEREFORE, 52 53 Be It Enacted by the Legislature of the State of Florida: 54 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 72 result. 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 87 programs. 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 98 section. 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 108 medication. 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 119 criteria: 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 157 subsection. 158 (16)(15)NONDISCIPLINE REMEDIES.— 159 (a) Any person alleging a violation ofthe provisions of160 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 167 section. 168 2. An award of the costs of litigation, expert witness 169 fees, reasonable attorneyattorney’sfees, 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;195phencyclidine (PCP); a hallucinogen; methaqualone; an opiate; a196barbiturate; a benzodiazepine; a synthetic narcotic; a designer197drug; or a metabolite of any of the substances listed in this 198 paragraph. An employer may test an individual for any or allof199 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,orthe 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, beforeprior totesting, an employer 218 shall give all employees and job applicants for employment a 219 written policy statement thatwhichcontains: 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 227 result. 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 medicationsto a medical review234officer 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 bybrand name orcommon 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 266 medication. 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:2721.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 2772.A form for the employee or job applicant to provide any278information he or she considers relevant to the test, including279identification of currently or recently used prescription or280nonprescription medication or other relevant medical281information. The form must provide notice of the most common282medications by brand name or common name, as applicable, as well283as by chemical name, which may alter or affect a drug test. The284providing of information shall not preclude the administration285of the drug test, but shall be taken into account in286interpreting any positive confirmed test result. 287 (c) Specimen collection, storage, and transportation to a 288 laboratorythe testing siteshall 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 availableof the306following persons:3071.A physician, a physician assistant, a registered308professional nurse, a licensed practical nurse, or a nurse309practitioner or a certified paramedic who is present at the310scene of an accident for the purpose of rendering emergency311medical service or treatment.3122.A qualified person employed by a licensed or certified313laboratory 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 conducted210323days after the result of the test was mailed or otherwise324delivered 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-day180-dayperiod 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 originalat equal or greater sensitivity for338the drug in question as the firstlaboratory. 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 verifiedconfirmedtest 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 348results, 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 or352challenge of the positive test result is unsatisfactory to the353employer, a written explanation as to why the employee’s or job354applicant’s explanation is unsatisfactory, along with the report355of positive result, shall be provided by the employer to the356employee or job applicant; andAllsuchdocumentation 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 bya364confirmation test and bya 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 may376in its sole discretion seek a confirmation test.377(b)Only licensed or certified laboratories as described in378subsection (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 TransportationAgency for Health385Care Administration or the United States Food and Drug386Administration as such technology becomes available in a cost387effective form. 388 (b)(d)If aan initialdrug 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 395 applicant. 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 419 criteria: 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 457 subsection. 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 490 conducted. 491 4. The type of tests conducted for both initial tests and 492 confirmation tests and the minimum cutoff levels of the tests. 4935.Any correlation between medication reported by the494employee or job applicant pursuant to subparagraph (5)(b)2. and495a positive confirmed drug test result.496 497 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.