Florida Drug Testing Law Explained
In Florida, employers have the legal right to conduct drug tests of their employees, subject to certain statutory regulations and exceptions. The relevant state statutes governing employer drug testing can be found in Florida Statutes Chapter 440, which concerns workers’ compensation, and Chapter 112, which pertains to public officers and employees.
Under Florida Statute 440.102, employers may require pre-employment drug testing as a condition of any offer of employment. Employers that elect to maintain and enforce a substance abuse program for the purpose of complying with this statute are provided immunity from liability in any civil cause of action brought by or on behalf of an employee or applicant against the employer for damages arising out of the employer’s good faith conduct of alcohol and drug testing and efforts to maintain a drug-free workplace. Employers in industries regulated by the United States Department of Transportation are exempted from certain provisions of Section 440.102 , however.
Florida Statute 112.0455 sets forth the scope of acceptable drug testing under the workers’ compensation scheme. Under the plan, for example, employers are permitted to require drug and alcohol testing of any employee injured in the course of employment prior to the employee’s treatment for the alleged work-related injury. An employee may challenge positive test results but can receive benefits under the workers’ compensation program regardless of the challenge.
Privately-employed drivers, pilots, crew members, railroad workers, and some public employees are subject to regulations set forth in 49 C.F.R. Part 40, which requires employers to perform drug testing in certain circumstances. These regulations apply to employers that are subject to Department of Transportation drug testing regulations.
Employer Protections And Rights
An employer’s right to drug test employees is limited to what is provided in the employment contract or delegation of duties for non-unionized employees. Among unionized employees, the right to conduct drug tests arises from the terms of the collective bargaining agreement. Florida courts examine the reasonableness of drug testing in the workplace according to two main standards: the collection standard (which stipulates whether the tests were fairly obtained) and the reasonableness standard (whether the test was required). The collection standard applies to the collection process of the biological sample and its confidentiality, whereas the reasonableness standard is concerned with whether the drug test was reasonably required based on the surrounding circumstances and the collection procedure used. Even though an employer has a right to administer a drug test, that collection must be reasonable by not being done arbitrarily nor capriciously.
Alcohol is addressed under the law as a separate substance. Florida companies are granted an exception in conducting alcohol tests based on the general regulations for drug tests. However, the rules contain different collection procedures, including Blood Alcohol Content for the test and providing the employer 12 hours to conduct the test.
Rights And Protections For Employees
The Florida Drug-Free Workplace (FDWC) program does not provide much in the way of protections for employees. The law specifically states that an employer may discharge or discipline an employee who refuses "to submit to reasonable tests." § 440.102(4)(b).
However, the law does contain some protections for access to prescription drug information. An employer cannot discriminate in employment on the basis of "legal use" of "prescription drugs taken under the care of a licensed medical practitioner." § 440.102(2). The law states that employers must keep confidential all information received through lawful testing or medical review officer services about whether a particular employee is taking prescribed substances under a licensed medical practitioner’s care. § 440.102(6).
In practice, this means that employers cannot discriminate in firing, or otherwise disciplining employees, just because they are taking prescription drugs under the guidance of a medical professional.
Types Of Drug Testing Permitted In Florida
Florida recognizes a number of different drug testing methods within its drug testing laws. These include pre-employment drug testing, random drug testing, and post-accident drug testing. Each of these methods has its own set of regulations and limitations.
Pre-employment testing is commonly used by employers as one of their standard hiring practices. In this method, employees undergo drug tests before they are hired and the results are used as consideration in whether or not they will be hired. The law may also allow for current employees to be tested under some circumstances, such as if a pre-employment drug test was never done due to a disability. Employers are also permitted to request pre-employment medical exams as a standard part of their hiring process.
Random drug testing is generally only allowed of employees who have safety-sensitive jobs because of the inherent risks of operating dangerous machinery while under the influence of drugs and alcohol. The law permits employees who work in transportation, marine, aviation, chemical manufacturing, and other safety-sensitive industries to be tested under certain conditions. Employees must be randomly selected using a computerized method that is considered random, rather than allowing random selection by an individual.
Post-accident testing is used when there are reasonable grounds to believe that a workplace accident may have been caused by drug or alcohol use. It is limited to post-accident testing of employees who caused or contributed to the accident. A post-accident drug test must be performed within eight hours of the accident. If the employee refuses a post-accident drug test, he or she will be prohibited from working at the company until he or she passes a drug test administered by a qualified medical doctor.
The Florida Drug and Alcohol-Free Workplace Program
To become a certified Drug-Free Workplace in Florida, an employer must participate in a drug-free workplace program which complies with the requirements of that section. Section 440.102 sets out the requirements for employers to have a certified drug-free workplace. That includes that the employer must develop a written policy, provide a description of the program, and educate employees on the policy. The written policy must state that the employer will test employees for drugs and alcohol and prohibits employees from engaging in substance abuse.
Testing is limited to: Specifically exempted from the definition of illegal drugs are "the lawful use, possession , or consumption of prescription drugs or over-the-counter medications." The employer must post its drug free workplace notice with specific language including providing employee protection against adverse employment action for legal off-the-job use of prescription drugs.
Employees who refuse to submit to a drug test or who test positive for illegal drugs are subject to employment termination. Employees who test positive for alcohol are subject to employment termination if the level of alcohol is equal to or greater than .08 grams of alcohol per 100 milliliters of blood in breath and .08 grams of alcohol per 100 milliliters of urine.
One of the requirements of a drug free workplace is that an employer can provide a 3rd party administrator to administer the drug free workplace program or contract with an outside vendor to provide the same services.
What Happens If You Fail A Drug Test In Florida?
Consequences of Failing a Florida Drug Test
Failing a drug test can have a significant impact on an employee and their livelihood. While some companies will allow employees to reapply after testing positive, this is not a guarantee. As such, it is vital for employees to understand the exact policies of their company.
The precise implications of a failed drug test can vary depending on the employer. The following is a general overview of the likely consequences:
Employees, including members of trade unions and medical professionals, may also face professional consequences as well. Since most testing is mandated by employers, medical professionals may face disciplinary action from their state medical council and possibly lose their license to practice medicine.
Trade unions may also revoke membership and benefits for union members who test positive. Since the Drug-Free Workplace Act does not apply to federal government employers, these employers may terminate employment for any employee who fails a drug test.
Employees who use medical marijuana and test positive may not face disciplinary actions, particularly if they live in a state where such use is legal. Federally certified employers, however, have more leeway with whom they can accept and with whom they may terminate association for a positive employment drug test.
Employees who conduct certain jobs, such as safety-sensitive positions or those that require the operation of a motor vehicle, may see affected employment even in states with legal medical use laws. Involvement in workplace accidents may require such workers to submit to additional or random testing.
Updates And Changes In Florida Law
Employers should keep in mind that state laws change and are amended over time. Florida has made some changes and the following summary highlights a few to help you understand how the State of Florida’s mandatory workplace drug testing program has shifted in the past decade and a half.
First, unlike most states, Florida does not have a worker’s compensation presumption in favor of marijuana. This means that there is no issue if a positive employment drug test for marijuana is utilized as a basis to deny workers’ compensation benefits. However, if an employee’s injuries will be paid through uninsured motorist coverage, then insurance companies are required to accept proof of lawful use of medical marijuana that is also certified by a qualified physician. But, even with this employee-friendly requirement, employees who are injured as a result of on-the-job negligence may still not be able to recover for their injuries.
Second, in 2017, Governor Scott signed legislation designed to promote the use of medical marijuana in the State of Florida. Specifically with regard to employment practices, Amendment 2 provided that certified physicians could prescribe medical marijuana to individuals with "Debilitating medical conditions". Conditions include terminal illness, epilepsy or a seizure disorder, panic disorder, PTSD, Crohn’s disease, Parkinson’s disease, multiple sclerosis, Amyotrophic lateral sclerosis (ALS), cancer, HIV/AIDS, chronic nonmalignant pain, severe nausea, wasting syndrome, severe and persistent muscle spasms, and seizures, Crohn’s disease, or multiple sclerosis.
Third, on May 5, 2019, Governor DeSantis signed CS/CS/HB 451 which allows insurance companies to utilize employment drug testing results as evidence to establish a lack of coverage under UM/UIM or PIP insurance. Specifically, when bringing an insurance claim for UM/UIM, for example, reference is made to the statute which states "(2) An insurer may use any of the following to establish that no coverage is provided under the terms and conditions of a personal injury protection endorsement issued under ss. 627.735 and 627.7415 or to deny personal injury protection benefits to an insured: (b) A positive drug test or positive alcohol test of the named insured or to whom initial benefits are claimed."
Given the myriad of issues that Florida employers face with employment drug testing and employment drug policies, employers are well advised to review their employment drug testing policies with their employment counsel to ensure that they are compliant with current state and federal laws and regulations. This is something that should be done periodically to ensure the most current information is both adopted and implemented.
How To Handle Legal Issues with Workplace Drug Testing
Both employers and employees can face a host of legal challenges when it comes to workplace drug testing. For employers, the most common challenges arise when specific exceptions are requested to standard procedures in any way. Employees may challenge random and blanket testing programs, suggest that testing might constitute discrimination, or ask that exceptions be made to testing for medical reasons (like allergies and side effects) or for personal privacy concerns. The American Civil Liberties Union has gone so far as to say that drug testing is unconstitutional and that widespread drug testing of current employees, as well as job applicants, constitutes an unreasonable search and seizure .
Whether you’re an employee or employer, many legal challenges to drug testing can be avoided by being diligent about relevant policies on both ends. Well-established policies not only help demonstrate to courts that drug testing is systematized and reliable, they also help employees and applicants better understand their rights and obligations. For employers, this means laying down policies about drug testing – including procedures for requesting exceptions to testing or exemptions from procedures. For employers who suspect that their drug testing policies might land them in hot water, it is wise to work with a legal professional to identify options for protection.