Florida has no law requiring employers to conduct drug testing on applicants and employees. However, employers can still require employees to undergo drug testing through the Drug-Free Workplace Program. This article will discuss the Florida employment laws on drug testing through the Drug-Free Workplace Program.
Importance of Drug Testing in Florida
Despite the absence of state-mandated law requiring employers to conduct drug testing on applicants and employees, drug testing is still important because of the voluntary Drug-Free Workplace Program. Florida employment laws on drug testing revolve around this program.
Private companies participating in the program require employee drug testing. They are given a 5% discount on workers’ compensation insurance premiums for the program implementation. Employers can deny an applicant’s hiring or dismiss an employee for refusing to undergo the testing.
Agencies Involved in Regulation and Enforcement
The Department of Economic Opportunity and the Department of Financial Services regulate the Florida Drug-Free Workplace Program. Whereas the enforcement of the program falls on employers.
Department of Economic Opportunity (DEO)
The DEO provides guidelines, training, and resources for employers to implement a drug-free workplace. It oversees the Workers’ Compensation Drug-Free Workplace Program. This program facilitates discounts on workers’ compensation premiums.
Department of Financial Services (DFS)
The DFS administers the financial aspect of the Workers’ Compensation Drug-Free Workplace Program. It also provides guidelines and resources for employers.
The Employers
The actual enforcement of the Drug-Free Workplace Program falls on the employers. They must coordinate with the DEO and DFS for the guidelines, training, and resources. They must work with the Agency for HealthCare Administration (AHCA) to implement proper drug testing. The compliance must align with Florida Statutes, Chapter 440, Section 102, and relevant administrative codes.
Latest Changes in Drug-Free Workplace Program
The latest change in Florida’s Drug-Free Workplace Program concerns the use of medical marijuana. While the use of medical marijuana is legal for some qualified patients, the employer still has the prerogative to maintain a drug-free workplace policy. This means that he can refuse the use of medical marijuana in the workplace.
Employer Responsibilities during Drug Testing
An employer has some vital responsibilities to undertake in drug testing.
Written Notice and Policy
An employer must provide a written policy to employees regarding drug testing. The policy must include the consequences of a positive result. Employees must be given at least 60 days’ notice of the policy. Applicants must be informed that drug testing is part of the hiring process.
Testing Procedures
An employer must get the services of a SAMSHA-accredited drug testing laboratory from the Agency for Health Care Administration (AHCA). Contracting a laboratory with a comprehensive drug testing service is wise because they can do various tests.
Confidentiality
All information from the testing must be handled with confidentially.
Positive Test Results
The employee can contest the positive result with the Medical Review Officer (MRO). The employee can ask for a re-test. If the result is still positive, an employer can terminate the employee or deny hiring the applicant.
Rehabilitation and Assistance
However, an employer must inform employees who failed the test about the Employee Assistance Programs (EAPs) to provide them with counseling and rehabilitation.
Employee’s Rights and Protections during Drug Testing
An employee has rights and protections during drug testing.
Written Policy and Notice
Before drug testing, an employee must have received a written policy regarding the required drug testing. It should include the consequences of a positive test result. They must be given 60 days’ notice of implementation of the policy.
Testing Procedures
The drug testing service must be done in a SAMHSA-accredited laboratory, following the correct sample collection procedure.
Confidentiality
All the information from the testing must be confidential. They must not be disclosed without the employee’s permission.
Positive Test Results
In case of a positive result, an employee will review the results with a Medical Review Officer (MRO). They can even request a re-test. This is taking the same sample and testing it at another laboratory facility.
Explanation of Results
An employee has the right to an explanation of the result, including the consequences of the failed test result.
Consequences of Non-Compliance for Employers
Employers failing to comply with employees’ rights during drug testing face several consequences. Here is the breakdown:
Legal Consequences
Employees can sue their employers if they believe their rights were violated during the drug testing process. The lawsuit can include unlawful termination, discrimination, or invasion of privacy.
Fines and Penalties
Employers implementing the Drug-Free Workplace Program may lose their eligibility for the workers’ compensation premium reduction for failing to comply with its regulation.
They may also face fines and penalties from the Florida Department of Financial Services (DFS) and other relevant regulatory bodies.
For unlawful termination, they may be obligated to reinstate the employee and provide back pay for lost wages.
Types of Drug Testing
Employers participating in the Drug-Free Workplace Program can conduct the following drug tests:
Pre-Employment Drug Testing
Employers can require job applicants to undergo drug testing as part of the hiring process. Refusal to submit to a drug test or a positive confirmed drug test can be a basis for refusing to hire an applicant.
Reasonable Suspicion Drug Testing
If the employer suspects an employee is using drugs based on some evidence, they can require an employee to submit to Reasonable Suspicion Drug Testing.
Routine Fitness-for-Duty Drug Testing
As a policy, employers can require employees to submit to routine employee fitness-for-duty drug testing.
Follow-up or Return-to-Work Drug Testing
For employees in an Employee Assistance Program for drug-related problems, employers must require the employee to have follow-up drug testing before reinstating for work.
Random Drug Testing
Employers may conduct random drug testing. Employees are picked randomly for drug testing without notice.
Employers must choose a trusted SAMHSA-accredited laboratory with comprehensive drug testing services for convenience and reliability.
Final Thoughts
Drug testing in the workplace is important in Florida. Although it does not have state-mandated laws on employee drug testing, the state achieves this through the voluntary Drug-Free Workplace Program. Participating companies must work primarily with the Department of Economic Opportunity (DEO) and the Department of Financial Services (DFS).
In this program, the employer is the enforcer. They can customize the program to fit their company’s needs. The unique aspect of this program is that it seeks a balance between employer needs and employee rights.
