Bill Text: FL S1358 | 2012 | Regular Session | Comm Sub
Bill Title: Drug-free Workplaces
Spectrum: Slight Partisan Bill (? 3-1)
Status: (Introduced - Dead) 2012-03-08 - Laid on Table, refer to CS/CS/CS/HB 1205 -SJ 1131 [S1358 Detail]
Download: Florida-2012-S1358-Comm_Sub.html
Florida Senate - 2012 CS for CS for CS for SB 1358
By the Committees on Budget; Budget Subcommittee on General
Government Appropriations; and Governmental Oversight and
Accountability; and Senator Hays
576-04507-12 20121358c3
1 A bill to be entitled
2 An act relating to drug-free workplaces; amending s.
3 112.0455, F.S.; revising the definition of the term
4 “job applicant,” defining the term “random testing,”
5 and removing the definition of the term “safety
6 sensitive position” for purposes of the Drug-Free
7 Workplace Act; requiring drug testing to be conducted
8 within each state agency’s appropriation; authorizing
9 a state agency to conduct random drug testing every 3
10 months; providing testing selection requirements;
11 removing provisions prohibiting a state agency from
12 discharging or disciplining an employee under certain
13 circumstances based on the employee’s first positive
14 confirmed drug test; removing provisions limiting the
15 circumstances under which an agency may discharge an
16 employee in a special risk or safety-sensitive
17 position; providing that an agency may discharge or
18 discipline an employee following a first-time positive
19 confirmed drug test result; authorizing an agency to
20 refer an employee to an employee assistance program or
21 an alcohol and drug rehabilitation program if the
22 employee is not discharged; requiring participation in
23 an employee assistance program or an alcohol and drug
24 rehabilitation program at the employee’s own expense
25 or at the expense of a health insurance plan;
26 requiring the employer to determine if the employee is
27 able to safely and effectively perform the job duties
28 assigned to the employee while the employee is
29 participating in the employee assistance program or
30 alcohol and drug rehabilitation program; deeming that
31 certain specified job activities cannot be performed
32 safely and effectively while the employee is
33 participating in the employee assistance program or
34 alcohol and drug rehabilitation program; requiring the
35 employer to transfer the employee to a job assignment
36 that he or she can perform safely and effectively
37 while the employee participates in the employee
38 assistance program or alcohol and drug rehabilitation
39 program; requiring the employer to place the employee
40 on leave status while the employee is participating in
41 an employee assistance program or an alcohol and drug
42 rehabilitation program if such a position is
43 unavailable; authorizing the employee to use
44 accumulated leave credits before being placed on leave
45 without pay; amending s. 440.102, F.S.; revising the
46 definition of the term “job applicant” as it pertains
47 to a public employer; removing the definition of the
48 term “safety-sensitive position” and replacing it with
49 the definition for the term “mandatory-testing
50 position”; providing that an employer remains
51 qualified for an insurer rate plan that discounts
52 rates for workers’ compensation and employer’s
53 liability insurance policies if the employer maintains
54 a drug-free workplace program that is broader in scope
55 than that provided for by the standards and procedures
56 established in the act; authorizing a public employer,
57 using an unbiased selection procedure, to conduct
58 random drug tests of employees occupying mandatory
59 testing or special-risk positions if the testing is
60 performed in accordance with drug-testing rules
61 adopted by the Agency for Health Care Administration;
62 requiring that a public sector employer assign a
63 public sector employee to a position other than a
64 mandatory-testing position if the employee enters an
65 employee assistance program or drug and alcohol
66 rehabilitation program; amending s. 944.474, F.S.;
67 revising provisions governing employees of the state
68 correctional system, to conform to changes made by the
69 act; providing an effective date.
70
71 Be It Enacted by the Legislature of the State of Florida:
72
73 Section 1. Subsections (5), (7), and (8) and paragraphs
74 (h), (i), (j), and (k) of subsection (10) of section 112.0455,
75 Florida Statutes, are amended to read:
76 112.0455 Drug-Free Workplace Act.—
77 (5) DEFINITIONS.—Except where the context otherwise
78 requires, as used in this act:
79 (a) “Drug” means alcohol, including distilled spirits,
80 wine, malt beverages, and intoxicating liquors; amphetamines;
81 cannabinoids; cocaine; phencyclidine (PCP); hallucinogens;
82 methaqualone; opiates; barbiturates; benzodiazepines; synthetic
83 narcotics; designer drugs; or a metabolite of any of the
84 substances listed herein.
85 (b) “Drug test” or “test” means any chemical, biological,
86 or physical instrumental analysis administered for the purpose
87 of determining the presence or absence of a drug or its
88 metabolites.
89 (c) “Initial drug test” means a sensitive, rapid, and
90 reliable procedure to identify negative and presumptive positive
91 specimens. All initial tests must shall use an immunoassay
92 procedure or an equivalent, or must shall use a more accurate
93 scientifically accepted method approved by the Agency for Health
94 Care Administration as such more accurate technology becomes
95 available in a cost-effective form.
96 (d) “Confirmation test,” “confirmed test,” or “confirmed
97 drug test” means a second analytical procedure used to identify
98 the presence of a specific drug or metabolite in a specimen. The
99 confirmation test must be different in scientific principle from
100 that of the initial test procedure. This confirmation method
101 must be capable of providing requisite specificity, sensitivity,
102 and quantitative accuracy.
103 (e) “Chain of custody” refers to the methodology of
104 tracking specified materials or substances for the purpose of
105 maintaining control and accountability from initial collection
106 to final disposition for all such materials or substances and
107 providing for accountability at each stage in handling, testing,
108 storing specimens, and reporting of test results.
109 (f) “Job applicant” means a person who has applied for a
110 special risk or safety-sensitive position with an employer and
111 has been offered employment conditioned upon successfully
112 passing a drug test.
113 (g) “Employee” means a any person who works for salary,
114 wages, or other remuneration for an employer.
115 (h) “Employer” means an any agency within state government
116 that employs individuals for salary, wages, or other
117 remuneration.
118 (i) “Prescription or nonprescription medication” means a
119 drug or medication obtained pursuant to a prescription as
120 defined by s. 893.02 or a medication that is authorized pursuant
121 to federal or state law for general distribution and use without
122 a prescription in the treatment of human diseases, ailments, or
123 injuries.
124 (j) “Random testing” means a drug test conducted on
125 employees who are selected through the use of a computer
126 generated random sample of an employer’s employees.
127 (k)(j) “Reasonable suspicion drug testing” means drug
128 testing based on a belief that an employee is using or has used
129 drugs in violation of the employer’s policy drawn from specific
130 objective and articulable facts and reasonable inferences drawn
131 from those facts in light of experience. Reasonable suspicion
132 drug testing may shall not be required except upon the
133 recommendation of a supervisor who is at least one level of
134 supervision higher than the immediate supervisor of the employee
135 in question. Among other things, such facts and inferences may
136 be based upon:
137 1. Observable phenomena while at work, such as direct
138 observation of drug use or of the physical symptoms or
139 manifestations of being under the influence of a drug.
140 2. Abnormal conduct or erratic behavior while at work or a
141 significant deterioration in work performance.
142 3. A report of drug use, provided by a reliable and
143 credible source, which has been independently corroborated.
144 4. Evidence that an individual has tampered with a drug
145 test during employment with the current employer.
146 5. Information that an employee has caused, or contributed
147 to, an accident while at work.
148 6. Evidence that an employee has used, possessed, sold,
149 solicited, or transferred drugs while working or while on the
150 employer’s premises or while operating the employer’s vehicle,
151 machinery, or equipment.
152 (l)(k) “Specimen” means a tissue, hair, or product of the
153 human body capable of revealing the presence of drugs or their
154 metabolites.
155 (m)(l) “Employee assistance program” means an established
156 program for employee assessment, counseling, and possible
157 referral to an alcohol and drug rehabilitation program.
158 (m) “Safety-sensitive position” means any position,
159 including a supervisory or management position, in which a drug
160 impairment would constitute an immediate and direct threat to
161 public health or safety.
162 (n) “Special risk” means employees who are required as a
163 condition of employment to be certified under chapter 633 or
164 chapter 943.
165 (7) TYPES OF TESTING.—Drug testing must be conducted within
166 each agency’s appropriation. An employer may conduct is
167 authorized, but is not required, to conduct, the following types
168 of drug tests:
169 (a) Job applicant testing.—An employer may require job
170 applicants to submit to a drug test and may use a refusal to
171 submit to a drug test or a positive confirmed drug test as a
172 basis for refusal to hire the job applicant.
173 (b) Reasonable suspicion.—An employer may require an
174 employee to submit to reasonable suspicion drug testing.
175 (c) Random testing.—An employer may conduct random testing
176 once every 3 months. The random sample of employees chosen for
177 testing must be computer-generated by an independent third
178 party. A random sample may not constitute more than 10 percent
179 of the total employee population.
180 (d)(c) Routine fitness for duty.—An employer may require an
181 employee to submit to a drug test if the test is conducted as
182 part of a routinely scheduled employee fitness-for-duty medical
183 examination that is part of the employer’s established policy or
184 that is scheduled routinely for all members of an employment
185 classification or group.
186 (e)(d) Followup testing.—If the employee in the course of
187 employment enters an employee assistance program for drug
188 related problems, or an alcohol and drug rehabilitation program,
189 the employer may require the said employee to submit to a drug
190 test as a followup to such program, and on a quarterly,
191 semiannual, or annual basis for up to 2 years thereafter.
192 (8) PROCEDURES AND EMPLOYEE PROTECTION.—All specimen
193 collection and testing for drugs under this section shall be
194 performed in accordance with the following procedures:
195 (a) A sample shall be collected with due regard to the
196 privacy of the individual providing the sample, and in a manner
197 reasonably calculated to prevent substitution or contamination
198 of the sample.
199 (b) Specimen collection shall be documented, and the
200 documentation procedures shall include:
201 1. Labeling of specimen containers so as to reasonably
202 preclude the likelihood of erroneous identification of test
203 results.
204 2. A form for the employee or job applicant to provide any
205 information he or she considers relevant to the test, including
206 identification of currently or recently used prescription or
207 nonprescription medication, or other relevant medical
208 information. Such form shall provide notice of the most common
209 medications by brand name or common name, as applicable, as well
210 as by chemical name, which may alter or affect a drug test. The
211 providing of information does shall not preclude the
212 administration of the drug test, but shall be taken into account
213 in interpreting any positive confirmed results.
214 (c) Specimen collection, storage, and transportation to the
215 testing site shall be performed in a manner that which will
216 reasonably preclude specimen contamination or adulteration.
217 (d) Each initial and confirmation test conducted under this
218 section, not including the taking or collecting of a specimen to
219 be tested, shall be conducted by a licensed laboratory as
220 described in subsection (12).
221 (e) A specimen for a drug test may be taken or collected by
222 any of the following persons:
223 1. A physician, a physician’s assistant, a registered
224 professional nurse, a licensed practical nurse, a nurse
225 practitioner, or a certified paramedic who is present at the
226 scene of an accident for the purpose of rendering emergency
227 medical service or treatment.
228 2. A qualified person employed by a licensed laboratory.
229 (f) A person who collects or takes a specimen for a drug
230 test conducted pursuant to this section shall collect an amount
231 sufficient for two drug tests as determined by the Agency for
232 Health Care Administration.
233 (g) Any drug test conducted or requested by an employer may
234 occur before, during, or immediately after the regular work
235 period of the employee, and shall be deemed to be performed
236 during work time for the purposes of determining compensation
237 and benefits for the employee.
238 (h) Every specimen that produces a positive confirmed
239 result shall be preserved by the licensed laboratory that
240 conducts the confirmation test for a period of at least 210 days
241 from the time the results of the positive confirmation test are
242 mailed or otherwise delivered to the employer. However, if an
243 employee or job applicant undertakes an administrative or legal
244 challenge to the test result, the employee or job applicant
245 shall notify the laboratory and the sample shall be retained by
246 the laboratory until the case or administrative appeal is
247 settled. During the 180-day period after written notification of
248 a positive test result, the employee or job applicant who has
249 provided the specimen shall be permitted by the employer to have
250 a portion of the specimen retested, at the employee or job
251 applicant’s expense, at another laboratory, licensed and
252 approved by the Agency for Health Care Administration, chosen by
253 the employee or job applicant. The second laboratory must test
254 at equal or greater sensitivity for the drug in question as the
255 first laboratory. The first laboratory that which performed the
256 test for the employer is shall be responsible for the transfer
257 of the portion of the specimen to be retested, and for the
258 integrity of the chain of custody during such transfer.
259 (i) Within 5 working days after receipt of a positive
260 confirmed test result from the testing laboratory, an employer
261 shall inform an employee or job applicant in writing of such
262 positive test result, the consequences of such results, and the
263 options available to the employee or job applicant.
264 (j) The employer shall provide to the employee or job
265 applicant, upon request, a copy of the test results.
266 (k) Within 5 working days after receiving notice of a
267 positive confirmed test result, the employee or job applicant
268 may submit information to an employer explaining or contesting
269 the test results, and why the results do not constitute a
270 violation of the employer’s policy.
271 (l) If an employee or job applicant’s explanation or
272 challenge of the positive test results is unsatisfactory to the
273 employer, a written explanation as to why the employee or job
274 applicant’s explanation is unsatisfactory, along with the report
275 of positive results, shall be provided by the employer to the
276 employee or job applicant. All such documentation shall be kept
277 confidential and exempt from the provisions of s. 119.07(1) by
278 the employer pursuant to subsection (11) and shall be retained
279 by the employer for at least 1 year.
280 (m) An No employer may not discharge, discipline, refuse to
281 hire, discriminate against, or request or require rehabilitation
282 of an employee or job applicant on the sole basis of a positive
283 test result that has not been verified by a confirmation test.
284 (n) In addition to the limitation under paragraph (m):
285 1. Except as provided in subparagraph 3., no employer may
286 discharge, discipline, or discriminate against an employee on
287 the sole basis of the employee’s first positive confirmed drug
288 test, unless the employer has first given the employee an
289 opportunity to participate in, at the employee’s own expense or
290 pursuant to coverage under a health insurance plan, an employee
291 assistance program or an alcohol and drug rehabilitation
292 program, and:
293 a. The employee has either refused to participate in the
294 employee assistance program or the alcohol and drug
295 rehabilitation program or has failed to successfully complete
296 such program, as evidenced by withdrawal from the program before
297 its completion or a report from the program indicating
298 unsatisfactory compliance, or by a positive test result on a
299 confirmation test after completion of the program; or
300 b. The employee has failed or refused to sign a written
301 consent form allowing the employer to obtain information
302 regarding the progress and successful completion of an employee
303 assistance program or an alcohol and drug rehabilitation
304 program.
305 2. An employee in a safety-sensitive position shall be
306 placed by the employer in a non-safety-sensitive position, or if
307 such position is unavailable, on leave status while
308 participating in an employee assistance program or an alcohol
309 and drug rehabilitation program. If placed on leave status
310 without pay, the employee shall be permitted to use any
311 accumulated leave credits prior to being placed on leave without
312 pay.
313 3. A special risk employee may be discharged or disciplined
314 for the first positive confirmed drug test result when illicit
315 drugs, pursuant to s. 893.13, are confirmed. No special risk
316 employee shall be permitted to continue work in a safety
317 sensitive position, but may be placed either in a non-safety
318 sensitive position or on leave status while participating in an
319 employee assistance program or an alcohol and drug
320 rehabilitation program.
321 (n)(o) Upon successful completion of an employee assistance
322 program or an alcohol and drug rehabilitation program, the
323 employee shall be reinstated to the same or equivalent position
324 that was held prior to such rehabilitation.
325 (o)(p) An No employer may not discharge, discipline, or
326 discriminate against an employee, or refuse to hire a job
327 applicant, on the basis of any prior medical history revealed to
328 the employer pursuant to this section.
329 (p)(q) An employer who performs drug testing or specimen
330 collection shall use chain-of-custody procedures as established
331 by the Agency for Health Care Administration to ensure proper
332 recordkeeping, handling, labeling, and identification of all
333 specimens to be tested.
334 (q)(r) An employer shall pay the cost of all drug tests,
335 initial and confirmation, which the employer requires of
336 employees.
337 (r)(s) An employee or job applicant shall pay the costs of
338 any additional drug tests not required by the employer.
339 (s)(t) An No employer may not shall discharge, discipline,
340 or discriminate against an employee solely upon voluntarily
341 seeking treatment, while under the employ of the employer, for a
342 drug-related problem if the employee has not previously tested
343 positive for drug use, entered an employee assistance program
344 for drug-related problems, or entered an alcohol and drug
345 rehabilitation program. However, special risk employees may be
346 subject to discharge or disciplinary action when the presence of
347 illicit drugs, pursuant to s. 893.13, is confirmed.
348 (t)(u) If Where testing is conducted based on reasonable
349 suspicion, each employer shall promptly detail in writing the
350 circumstances which formed the basis of the determination that
351 reasonable suspicion existed to warrant the testing. A copy of
352 this documentation shall be given to the employee upon request
353 and the original documentation shall be kept confidential and
354 exempt from the provisions of s. 119.07(1) by the employer
355 pursuant to subsection (11) and retained by the employer for at
356 least 1 year.
357 (u)(v) If an employee is unable to participate in
358 outpatient rehabilitation, the employee may be placed on leave
359 status while participating in an employee assistance program or
360 an alcohol and drug rehabilitation program. If placed on leave
361 without-pay status, the employee shall be permitted to use any
362 accumulated leave credits prior to being placed on leave without
363 pay. Upon successful completion of an employee assistance
364 program or an alcohol and drug rehabilitation program, the
365 employee shall be reinstated to the same or equivalent position
366 that was held prior to such rehabilitation.
367 (10) EMPLOYER PROTECTION.—
368 (h) An employer may discharge or discipline shall refer an
369 employee following with a first-time positive confirmed drug
370 test result. If the employer does not discharge the employee,
371 the employer may refer the employee to an employee assistance
372 program or an alcohol and drug rehabilitation program in which
373 the employee may participate at the expense of the employee or
374 pursuant to a health insurance plan, unless such employee is
375 discharged as provided in subparagraph (8)(n)3. If the results
376 of a subsequent confirmed drug test are positive, the employer
377 may discharge or discipline the employee.
378 1. If an employer refers an employee to an employee
379 assistance program or an alcohol and drug rehabilitation
380 program, the employer must determine whether the employee is
381 able to safely and effectively perform the job duties assigned
382 to the employee while the employee participates in the employee
383 assistance program or the alcohol and drug rehabilitation
384 program.
385 2. An employee whose assigned duties require the employee
386 to carry a firearm, work closely with an employee who carries a
387 firearm, perform life-threatening procedures, work with heavy or
388 dangerous machinery, work as a safety inspector, work with
389 children, work with detainees in the correctional system, work
390 with confidential information or documents pertaining to
391 criminal investigations, work with controlled substances, hold a
392 position subject to s. 110.1127, or hold a position in which a
393 momentary lapse in attention could result in injury or death to
394 another person, is deemed unable to safely and effectively
395 perform the job duties assigned to the employee while the
396 employee participates in the employee assistance program or the
397 alcohol and drug rehabilitation program.
398 3. If an employer refers an employee to an employee
399 assistance program or an alcohol and drug rehabilitation program
400 and the employer determines that the employee is unable, or the
401 employee is deemed unable, to safely and effectively perform the
402 job duties assigned to the employee before he or she completes
403 the employee assistance program or the alcohol and drug
404 rehabilitation program, the employer shall place the employee in
405 a job assignment that the employer determines the employee can
406 safely and effectively perform while participating in the
407 employee assistance program or the alcohol and drug
408 rehabilitation program.
409 4. If a job assignment in which the employee may safely and
410 effectively perform is unavailable, the employer shall place the
411 employee on leave status while the employee is participating in
412 an employee assistance program or an alcohol and drug
413 rehabilitation program. If placed on leave status without pay,
414 the employee may use accumulated leave credits before being
415 placed on leave without pay.
416 (i) Nothing in This section does not shall be construed to
417 prohibit an employer from conducting medical screening or other
418 tests required by any statute, rule, or regulation for the
419 purpose of monitoring exposure of employees to toxic or other
420 unhealthy substances in the workplace or in the performance of
421 job responsibilities. Such screening or tests shall be limited
422 to the specific substances expressly identified in the
423 applicable statute, rule, or regulation, unless prior written
424 consent of the employee is obtained for other tests.
425 (j) An employer shall place a safety-sensitive position
426 employee whose drug test result is confirmed positive in a non
427 safety-sensitive position, or if such a position is unavailable,
428 on leave status while the employee participates in an employee
429 assistance program or an alcohol and drug rehabilitation
430 program. If placed on leave status without pay, the employee
431 shall be permitted to use any accumulated leave credits prior to
432 being placed on leave without pay.
433 (k) A special risk employee may be discharged or
434 disciplined on the first positive confirmed drug test result
435 when illicit drugs, pursuant to s. 893.13, are confirmed. No
436 special risk employee shall be permitted to continue work in a
437 safety-sensitive position, but may be placed either in a non
438 safety-sensitive position or on leave status while participating
439 in an employee assistance program or an alcohol and drug
440 rehabilitation program.
441 Section 2. Paragraphs (j) and (o) of subsection (1),
442 subsection (2), paragraph (g) of subsection (7), and subsection
443 (11) of section 440.102, Florida Statutes, are amended to read:
444 440.102 Drug-free workplace program requirements.—The
445 following provisions apply to a drug-free workplace program
446 implemented pursuant to law or to rules adopted by the Agency
447 for Health Care Administration:
448 (1) DEFINITIONS.—Except where the context otherwise
449 requires, as used in this act:
450 (j) “Job applicant” means a person who has applied for a
451 position with an employer and has been offered employment
452 conditioned upon successfully passing a drug test, and may have
453 begun work pending the results of the drug test. For a public
454 employer, “job applicant” means only a person who has applied
455 for a special-risk or mandatory-testing safety-sensitive
456 position.
457 (o) “Mandatory-testing position” means, with respect to a
458 public employer, a job assignment that requires the employee to
459 carry a firearm, work closely with an employee who carries a
460 firearm, perform life-threatening procedures, work with heavy or
461 dangerous machinery, work as a safety inspector, work with
462 children, work with detainees in the correctional system, work
463 with confidential information or documents pertaining to
464 criminal investigations, work with controlled substances, or a
465 job assignment that requires an employee security background
466 check, pursuant to s. 110.1127, or a job assignment in which a
467 momentary lapse in attention could result in injury or death to
468 another person. “Safety-sensitive position” means, with respect
469 to a public employer, a position in which a drug impairment
470 constitutes an immediate and direct threat to public health or
471 safety, such as a position that requires the employee to carry a
472 firearm, perform life-threatening procedures, work with
473 confidential information or documents pertaining to criminal
474 investigations, or work with controlled substances; a position
475 subject to s. 110.1127; or a position in which a momentary lapse
476 in attention could result in injury or death to another person.
477 (2) DRUG TESTING.—An employer may test an employee or job
478 applicant for any drug described in paragraph (1)(c). In order
479 to qualify as having established a drug-free workplace program
480 under this section and to qualify for the discounts provided
481 under s. 627.0915 and deny medical and indemnity benefits under
482 this chapter, an employer must, at a minimum, implement drug
483 testing that conforms to the standards and procedures
484 established in this section and all applicable rules adopted
485 pursuant to this section as required in subsection (4). However,
486 an employer does not have a legal duty under this section to
487 request an employee or job applicant to undergo drug testing. If
488 an employer fails to maintain a drug-free workplace program in
489 accordance with the standards and procedures established in this
490 section and in applicable rules, the employer is ineligible for
491 discounts under s. 627.0915. However, an employer qualifies for
492 discounts under s. 627.0915 if the employer maintains a drug
493 free workplace program that is broader in scope than that
494 provided for by the standards and procedures established in this
495 section. An employer who qualifies All employers qualifying for
496 and receives receiving discounts provided under s. 627.0915 must
497 be reported annually by the insurer to the department.
498 (7) EMPLOYER PROTECTION.—
499 (g) This section does not prohibit an employer from
500 conducting medical screening or other tests required, permitted,
501 or not disallowed by any statute, rule, or regulation for the
502 purpose of monitoring exposure of employees to toxic or other
503 unhealthy substances in the workplace or in the performance of
504 job responsibilities. Such screening or testing is limited to
505 the specific substances expressly identified in the applicable
506 statute, rule, or regulation, unless prior written consent of
507 the employee is obtained for other tests. Such screening or
508 testing need not be in compliance with the rules adopted by the
509 Agency for Health Care Administration under this chapter or
510 under s. 112.0455. A public employer may, through the use of an
511 unbiased selection procedure, conduct random drug tests of
512 employees occupying mandatory-testing safety-sensitive or
513 special-risk positions if the testing is performed in accordance
514 with drug-testing rules adopted by the Agency for Health Care
515 Administration and the department. If applicable, random drug
516 testing must be specified in a collective bargaining agreement
517 as negotiated by the appropriate certified bargaining agent
518 before such testing is implemented.
519 (11) PUBLIC EMPLOYEES IN MANDATORY-TESTING SAFETY-SENSITIVE
520 OR SPECIAL-RISK POSITIONS.—
521 (a) If an employee who is employed by a public employer in
522 a mandatory-testing safety-sensitive position enters an employee
523 assistance program or drug rehabilitation program, the employer
524 must assign the employee to a position other than a mandatory
525 testing safety-sensitive position or, if such position is not
526 available, place the employee on leave while the employee is
527 participating in the program. However, the employee shall be
528 permitted to use any accumulated annual leave credits before
529 leave may be ordered without pay.
530 (b) An employee who is employed by a public employer in a
531 special-risk position may be discharged or disciplined by a
532 public employer for the first positive confirmed test result if
533 the drug confirmed is an illicit drug under s. 893.03. A
534 special-risk employee who is participating in an employee
535 assistance program or drug rehabilitation program may not be
536 allowed to continue to work in any special-risk or mandatory
537 testing safety-sensitive position of the public employer, but
538 may be assigned to a position other than a mandatory-testing
539 safety-sensitive position or placed on leave while the employee
540 is participating in the program. However, the employee shall be
541 permitted to use any accumulated annual leave credits before
542 leave may be ordered without pay.
543 Section 3. Section 944.474, Florida Statutes, is amended to
544 read:
545 944.474 Legislative intent; employee wellness program; drug
546 and alcohol testing.—
547 (1) It is the intent of the Legislature that the state
548 correctional system provide a safe and secure environment for
549 both inmates and staff. A healthy workforce is a productive
550 workforce, and security of the state correctional system can
551 best be provided by strong and healthy employees. The Department
552 of Corrections may develop and implement an employee wellness
553 program. The program may include, but is not limited to,
554 wellness education, smoking cessation, nutritional education,
555 and overall health-risk reduction, including the effects of
556 using drugs and alcohol.
557 (2) An employee Under no circumstances shall employees of
558 the department may not test positive for illegal use of
559 controlled substances. An employee of the department may not be
560 under the influence of alcohol while on duty. In order to ensure
561 that these prohibitions are adhered to by all employees of the
562 department and notwithstanding s. 112.0455, the department may
563 develop a program for the drug testing of all job applicants and
564 for the random drug testing of all employees. The department may
565 randomly evaluate employees for the contemporaneous use or
566 influence of alcohol through the use of alcohol tests and
567 observation methods. Notwithstanding s. 112.0455, the department
568 may develop a program for the reasonable suspicion drug testing
569 of employees who are in mandatory-testing positions, as defined
570 in s. 440.102(1)(o), safety-sensitive or special risk positions,
571 as defined in s. 112.0455(5), for the controlled substances
572 listed in s. 893.03(3)(d). The reasonable suspicion drug testing
573 authorized by this subsection shall be conducted in accordance
574 with s. 112.0455, but may also include testing upon reasonable
575 suspicion based on violent acts or violent behavior of an
576 employee who is on or off duty. The department shall adopt rules
577 pursuant to ss. 120.536(1) and 120.54 that are necessary to
578 administer this subsection.
579 Section 4. This act shall take effect July 1, 2012.
