HB 1297 — Drug-free Workplaces

2.

A statement advising the employee or job applicant of the existence of this section.

Page 3 of 21 CODING:

hb1297-00hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HBCS/HB 1297 2020 requires,3. as used in this act:

A general statement concerning confidentiality.

4.

Procedures for employees and job applicants to confidentially report the use of prescription or nonprescription medications both before and after being tested.

Additionally, employees and job applicants shall receive notice of the most common medications by brand name or common name, as applicable, as well as by chemical name, which may alter or affect a drug test.

A list of such medications shall be developed by the Agency for Health Care Administration.

5.

The consequences of refusing to submit to a drug test.

6.

Names, addresses, and telephone numbers of employee assistance programs and local alcohol and drug rehabilitation programs.

7.

A statement that an employee or job applicant who receives a positive confirmed drug test result may contest or explain the result to the employer within 5 working days after written notification of the positive test result.

If an employee or job applicant's explanation or challenge is unsatisfactory to the employer, the person may contest the drug test result as provided by subsections (15) (14) and (16) (15).

8.

A statement informing the employee or job applicant of his or her responsibility to notify the laboratory of any administrative or civil actions brought pursuant to this section.

9.

A list of all drugs for which the employer will test, Page 4 of 21 CODING:

Words stricken are deletions;

words underlined are additions.

hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1297 2020 described by brand names or common names, as applicable, as well as by chemical names.

10.

A statement regarding any applicable collective bargaining agreement or contract and the right to appeal to the Public Employees Relations Commission.

11.

A statement notifying employees and job applicants of their right to consult the testing laboratory for technical information regarding prescription and nonprescription medication.

(13) DRUG-TESTING STANDARDS;

SAMPLE VALIDITY PRESCREENING.—Before a drug-testing facility licensed under part II of chapter 408 may perform any drug-screening test on a urine specimen collected in this state, prescreening tests must be performed to determine the validity of the specimen.

The prescreening tests must be capable of detecting, or detecting and defeating, novel or emerging urine drug-testing subversion technologies as described in this subsection.

(a) The drug-testing facility shall use urine sample validity screening tests that meet all of the following criteria:

1.

A urine sample validity screening test for creatinine must use a 20 mg/dL cutoff concentration and must have minimal interferences from bilirubin and blood in the urine.

The urine sample validity screening test must be able to discriminate between a creatinine level from an unadulterated urine sample Page 5 of 21 CODING:

Words stricken are deletions;

words underlined are additions.

hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1297 2020 and a creatinine level arising from overhydration or creatine or protein loading.

2.

A urine sample validity screening test for oxidants must be able to detect the presence or effects of oxidant adulterants up to 6 days after sample collection, under the sample storage conditions outlined in the laboratory standards guideline adopted by rule by the Agency for Health Care Administration, and after any sample transport that is routinely involved.

3.

Urine sample validity screening tests must be able to detect synthetic or freeze-dried urine substituted for the donor's urine for drug testing.

4.

Urine sample validity screening tests must be validated for the detection of all of the additional adulterant classes represented by glutaraldehyde, salt, heavy metals, cationic detergents, protease, strong alkaline buffers, and strong acidic buffers.

The detection limits of these classes must be at a sufficient level to detect a nonphysiologic sample or interference with enzyme immunoassay drug-screening tests.

(b) The drug-testing facility may use only urine sample validity screening tests that have undergone validation studies conducted by the manufacturer to document the product's conformance to the requirements of this subsection.

(c) A drug-testing facility may rely on urine sample validity screening tests to determine if confirmation testing is Page 6 of 21 CODING:

Words stricken are deletions;

words underlined are additions.

hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1297 2020 required for any urine sample that has been deemed invalid for drug screening.

(d) Urine specimens collected in this state may not be sent for drug-screening tests to a drug-testing facility located outside of this state unless such drug-testing facility complies with all requirements of this subsection.

(e) The Agency for Health Care Administration shall adopt rules necessary for the implementation and enforcement of this subsection.

(16)(15) NONDISCIPLINE REMEDIES.— (a) Any person alleging a violation of the provisions of this section, that is not remediable by the commission or an arbitrator pursuant to subsection (15) (14), must institute a civil action for injunctive relief or damages, or both, in a court of competent jurisdiction within 180 days of the alleged violation, or be barred from obtaining the following relief.

Relief is limited to:

1.

An order restraining the continued violation of this section.

2.

An award of the costs of litigation, expert witness fees, reasonable attorney attorney's fees, and noneconomic damages provided that damages shall be limited to the recovery of damages directly resulting from injury or loss caused by each violation of this section.

Section 2.

Present subsections (9) through (15) of section Page 7 of 21 CODING:

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words underlined are additions.

hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1297 2020 440.102, Florida Statutes, are redesignated as subsections (10) through (16), respectively, a new subsection (9) is added to that section, and paragraphs (c), (e), and (q) of subsection (1), paragraph (a) of subsection (3), paragraphs (b) through (h), (j), (k), and (l) of subsection (5), subsection (6), paragraph (a) of subsection (7), and paragraphs (b) and (c) of present subsection (9) of that section are amended, to read:

440.102 Drug-free workplace program requirements.—The following provisions apply to a drug-free workplace program implemented pursuant to law or to rules adopted by the Agency for Health Care Administration:

(1) DEFINITIONS.—Except where the context otherwise requires, as used in this act:

An employer may test an individual for any or all of suchPage drugs.8 of 21 CODING:

(e) "Drug test" or "test" means any chemical, biological, or physical instrumental analysis administered, by a laboratory certified by the United States Department of Health and Human Services or licensed by the Agency for Health Care Administration, for the purpose of determining the presence or absence of a drug or its metabolites.

In the case of testing for the presence of alcohol, the test shall be conducted in accordance with United States Department of Transportation alcohol testing procedures authorized under 49 C.F.R.

part 40, subparts J through M.

(q) "Specimen" means tissue, hair, or a product of the Page 2 of 12 CODING:

hb1297-00hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HBCS/HB 1297 2020 humansuch bodydrugs. capable of revealing the presence of drugs or their metabolites, as approved by the United States Food and Drug Administration, or the Agency for Health Care Administration, the United States Department of Health and Human Services, or the United States Department of Transportation.

(e) "Drug test" or "test" means any chemical, biological, or physical instrumental analysis administered, by a laboratory certified by the United States Department of Health and Human Services or licensed by the Agency for Health Care Administration, for the purpose of determining the presence or absence of a drug or its metabolites.

In the case of testing for the presence of alcohol, the test must be conducted in accordance with the United States Department of Transportation alcohol testing procedures authorized under 49 C.F.R.

part 40, subparts J through M.

(q) "Specimen" means tissue, hair, or a product of the human body capable of revealing the presence of drugs or their metabolites, as approved by the United States Food and Drug Administration, or the Agency for Health Care Administration, the United States Department of Health and Human Services, or the United States Department of Transportation.

The types of drug testing an employee or job applicant may be required to submit to, including reasonable-suspicion drugPage testing9 orof drug21 testingCODING: conducted on any other basis.

Words stricken are deletions;

words underlined are additions.

hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1297 2020 drug testing or drug testing conducted on any other basis.

A list of the most common medications, by brand name or Pagecommon 3name, ofas 12applicable, CODING:as well as by chemical name, which may alter or affect a drug test.

Words stricken are deletions;

words underlined are additions.

hb1297-00 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1297 2020 common name, as applicable, as well as by chemical name, which may alter or affect a drug test.

that if an employee's or job applicant's explanation or challenge is unsatisfactoryPage to10 theof medical21 reviewCODING: officer, the medical review officer shall report a positive test result back to the employer;

Words stricken are deletions;

words underlined are additions.

hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1297 2020 unsatisfactory to the medical review officer, the medical review officer shall report a positive test result back to the employer;

A statement regarding any applicable collective Pagebargaining 4agreement ofor 12contract CODING:and the right to appeal to the Public Employees Relations Commission or applicable court.

Words stricken are deletions;

words underlined are additions.

hb1297-00 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1297 2020 bargaining agreement or contract and the right to appeal to the Public Employees Relations Commission or applicable court.

(4) TYPES OF TESTING.— (a) An employer is required to conduct the following types of drug tests:

1.

Job applicant drug testing.—An employer must require job applicants to submit to a drug test and may use a refusal to submit to a drug test or a positive confirmed drug test as a basis for refusing to hire a job applicant.

2.

Reasonable-suspicion drug testing.—An employer must require an employee to submit to reasonable-suspicion drug testing.

3.

Routine fitness-for-duty drug testing.—An employer must require an employee to submit to a drug test if the test is conducted as part of a routinely scheduled employee fitness-for- duty medical examination that is part of the employer's established policy or that is scheduled routinely for all members of an employment classification or group.

4.

Followup drug testing.—If the employee in the course of employment enters an employee assistance program for drug- related problems, or a drug rehabilitation program, the employer Page 5 of 12 CODING:

Words stricken are deletions;

words underlined are additions.

hb1297-00 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1297 2020 must require the employee to submit to a drug test as a followup to such program, unless the employee voluntarily entered the program.

In those cases, the employer has the option to not require followup testing.

If followup testing is required, it must be conducted at least six times in the first year, and may be conducted twice for 1 additional year once a year for a 2- year period after completion of the program.

Advance notice of a followup testing date must not be given to the employee to be tested.

labeling of specimen containers so as to reasonably preclude the likelihood of erroneous identification of test results.Page 11 of 21 CODING:

For saliva or breath alcohol testing, a specimen container is not required if the specimen is not being transported to a laboratory for analysis.

2.

A form for the employee or job applicant to provide any information he or she considers relevant to the test, including identification of currently or recently used prescription or nonprescription medication or other relevant medical information.

The form must provide notice of the most common medications by brand name or common name, as applicable, as well Page 6 of 12 CODING:

hb1297-00hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HBCS/HB 1297 2020 asresults. by chemical name, which may alter or affect a drug test.

For saliva or breath alcohol testing, a specimen container is not required if the specimen is not being transported to a laboratory for analysis 2.

A form for the employee or job applicant to provide any information he or she considers relevant to the test, including identification of currently or recently used prescription or nonprescription medication or other relevant medical information.

The form must provide notice of the most common medications by brand name or common name, as applicable, as well as by chemical name, which may alter or affect a drug test.

(d) Each confirmation test conducted under this section, not including the taking or collecting of a specimen to be tested, shall be conducted by a licensed or certified laboratory as described in subsection (10) (9).

For alcohol testing, a person must meetPage the12 United States Department of Transportation21 standardsCODING: for a screening test technician or a breath alcohol technician.

AWords hairstricken specimenare maydeletions; be collected and packaged by a person who has been trained and certified by a drug testing laboratory.

Awords personunderlined whoare directlyadditions. supervises an employee subject to testing may not serve as the specimen collector for that employee unless there is no other qualified specimen collector available.

ofhb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1297 2020 meet the followingUnited persons:States Department of Transportation standards for a screening test technician or a breath alcohol technician.

A hair specimen may be collected and packaged by a person who has been trained and certified by a drug-testing laboratory.

A person who directly supervises an employee subject to testing may not serve as the specimen collector for that employee unless there is no other qualified specimen collector available of the following persons:

Page2. 7 of 12 CODING:

A qualified person employed by a licensed or certified laboratory as described in subsection (9).

(f) A person who collects or takes a specimen for a drug test shall collect an amount sufficient for two independent drug tests, one to screen the specimen and one for confirmation of the screening test results, at a laboratory as determined by the Agency for Health Care Administration.

(g) Every specimen that produces a positive, confirmed test result shall be preserved by the licensed or certified laboratory that conducted the confirmation test for a period of at least 1 year after the confirmation test was conducted 210 days after the result of the test was mailed or otherwise Page 13 of 21 CODING:

hb1297-00hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HBCS/HB 1297 2020 2.delivered to the medical review officer.

A qualified person employed by a licensed or certified laboratory as described in subsection (9).

(f) A person who collects or takes a specimen for a drug test shall collect an amount sufficient for two independent drug tests, one to screen the specimen and one for confirmation of the screening results, at a laboratory as determined by the Agency for Health Care Administration.

(g) Every specimen that produces a positive, confirmed test result shall be preserved by the licensed or certified laboratory that conducted the confirmation test for a period of at least 1 year after the confirmation test was conducted 210 days after the result of the test was mailed or otherwise delivered to the medical review officer.

The second laboratory must test the specimen at the limit of detection for the drug or analyte Pageconfirmed 8by ofthe 12original CODING:at equal or greater sensitivity for the drug in question as the first laboratory.

If the drug or analyte is detected by the second laboratory, the result must be reported as reconfirmed positive.

The first laboratory that performed the test for the employer is responsible for the transfer of the portion of the specimen to be retested, and for the integrity of the chain of custody during such transfer.

(h) Within 5 working days after receipt of a positive verified confirmed test result from the medical review officer, an employer shall inform an employee or job applicant in writing of such positive test result, the consequences of such result results, and the options available to the employee or job Page 14 of 21 CODING:

hb1297-00hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HBCS/HB 1297 2020 confirmedapplicant. by the original at equal or greater sensitivity for the drug in question as the first laboratory.

If the drug or analyte is detected by the second laboratory, the result shall be reported as reconfirmed positive.

The first laboratory that performed the test for the employer is responsible for the transfer of the portion of the specimen to be retested, and for the integrity of the chain of custody during such transfer.

(h) Within 5 working days after receipt of a positive verified confirmed test result from the medical review officer, an employer shall inform an employee or job applicant in writing of such positive test result, the consequences of such results, and the options available to the employee or job applicant.

(k) An employer may not discharge, discipline, refuse to hire, discriminate against, or request or require rehabilitation Pageof 9an employee or job applicant on the sole basis of 12a CODING:positive test result that has not been reviewed and verified by a confirmation test and by a medical review officer, except when a confirmed positive breath alcohol test was conducted in accordance with United States Department of Transportation alcohol testing procedures.

(l) An employer that performs drug testing or specimen collection shall use chain-of-custody procedures established by the Agency for Health Care Administration, the United States Department of Health and Human Services, or the United States Department of Transportation to ensure proper recordkeeping, handling, labeling, and identification of all specimens tested.

Page 15 of 21 CODING:

hb1297-00hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HBCS/HB 1297 2020 of(6) anCONFIRMATION employeeTESTING.— or(a) jobIf applicantan oninitial thedrug sole basis of a positive test resultis thatnegative, hasthe notemployer beenmay reviewedin andits verifiedsole bydiscretion seek a confirmation testtest. and by a medical review officer, except when a confirmed positive breath alcohol test was conducted in accordance with United States Department of Transportation alcohol testing procedures.

(l) An employer that performs drug testing or specimen collection shall use chain-of-custody procedures established by the Agency for Health Care Administration, the United States Department of Health and Human Services, or the United States Department of Transportation to ensure proper recordkeeping, handling, labeling, and identification of all specimens tested.

(6) CONFIRMATION TESTING.— (a) If an initial drug test is negative, the employer may in its sole discretion seek a confirmation test.

(a)(c)(c) All laboratory positive initial tests on a urine, oral fluid, blood, or hair specimen shall be confirmed using gas chromatography/mass spectrometry (GC/MS) or an equivalent or more accurate scientifically accepted method approved by the United States Department of Health and Human Services or the United States Department of Transportation Agency for Health Care Administration or the United States Food and Drug Administration as such technology becomes available in a cost- Pageeffective 10form. of 12 CODING:

(b)(d) If a an initial drug test of an employee or job applicant is confirmed by the laboratory as positive, the employer's medical review officer shall provide technical assistance to the employer and to the employee or job applicant for the purpose of interpreting the test result to determine whether the result could have been caused by prescription or nonprescription medication taken by the employee or job applicant.

(c) For a breath alcohol test, an initial positive result must be confirmed by a second breath specimen taken and tested using an evidential breath testing device listed on the Page 16 of 21 CODING:

hb1297-00hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HBCS/HB 1297 2020 effectiveconforming form.products list issued by the National Highway Traffic Safety Administration and conducted in accordance with United States Department of Transportation alcohol testing procedures authorized under 49 C.F.R.

(b)(d) If a an initial drug test of an employee or job applicant is confirmed by the laboratory as positive, the employer's medical review officer shall provide technical assistance to the employer and to the employee or job applicant for the purpose of interpreting the test result to determine whether the result could have been caused by prescription or nonprescription medication taken by the employee or job applicant.

(c) For a breath alcohol test, an initial positive result shall be confirmed by a second breath specimen taken and tested using an evidential breath testing device listed on the conforming products list issued by the National Highway Traffic Safety Administration and conducted in accordance with United States Department of Transportation alcohol testing procedures authorized under 49 C.F.R.

(9) DRUG-TESTING STANDARDSSTANDARDS; FOR LABORATORIES.— (c) A laboratory shall disclose to the medical review officer a written positive confirmed test result report within 7 Page 11 of 12 CODING:

SAMPLE VALIDITY PRESCREENING.— Before a drug-testing facility licensed under part II of chapter 408 may perform any drug-screening test on a urine specimen collected in this state, prescreening tests must be performed to determine the validity of the specimen.

The prescreening tests must be capable of detecting, or detecting and defeating, novel or emerging urine drug-testing subversion technologies as described in this subsection.

(a) The drug-testing facility shall use urine sample validity screening tests that meet all of the following criteria:

1.

A urine sample validity screening test for creatinine must use a 20 mg/dL cutoff concentration and must have minimal interferences from bilirubin and blood in the urine.

The urine sample validity screening test must be able to discriminate Page 17 of 21 CODING:

hb1297-00hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HBCS/HB 1297 2020 workingbetween daysa aftercreatinine receiptlevel offrom thean sample.unadulterated urine sample and a creatinine level arising from overhydration or creatine or protein loading.

2.

A urine sample validity screening test for oxidants must be able to detect the presence or effects of oxidant adulterants up to 6 days after sample collection, under the sample storage conditions outlined in the laboratory standards guideline adopted by rule by the Agency for Health Care Administration, and after any sample transport that is routinely involved.

3.

Urine sample validity screening tests must be able to detect synthetic or freeze-dried urine substituted for the donor's urine for drug testing.

4.

Urine sample validity screening tests must be validated for the detection of all of the additional adulterant classes represented by glutaraldehyde, salt, heavy metals, cationic detergents, protease, strong alkaline buffers, and strong acidic buffers.

The detection limits of these classes must be at a sufficient level to detect a nonphysiologic sample or interference with enzyme immunoassay drug-screening tests.

(b) The drug-testing facility may use only urine sample validity screening tests that have undergone validation studies conducted by the manufacturer to document the product's conformance to the requirements of this subsection.

(c) A drug-testing facility may rely on urine sample Page 18 of 21 CODING:

Words stricken are deletions;

words underlined are additions.

hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1297 2020 validity screening tests to determine if confirmation testing is required for any urine sample that has been deemed invalid for drug screening.

(d) Urine specimens collected in this state may not be sent for drug-screening tests to a drug-testing facility located outside of this state unless such drug-testing facility complies with all requirements of this subsection.

(e) The Agency for Health Care Administration shall adopt rules necessary for the implementation and enforcement of this subsection.

(10)(9) DRUG-TESTING STANDARDS FOR LABORATORIES.— (b) A laboratory may analyze initial or confirmation test specimens only if:

1.

The laboratory obtains a license under part II of chapter 408 and s.

112.0455(18) s.

112.0455(17).

Each applicant for licensure and each licensee must comply with all requirements of this section, part II of chapter 408, and applicable rules.

2.

The laboratory has written procedures to ensure the chain of custody.

3.

The laboratory follows proper quality control procedures, including, but not limited to:

a.

The use of internal quality controls, including the use of samples of known concentrations which are used to check the performance and calibration of testing equipment, and periodic Page 19 of 21 CODING:

Words stricken are deletions;

words underlined are additions.

hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1297 2020 use of blind samples for overall accuracy.

b.

An internal review and certification process for drug test results, conducted by a person qualified to perform that function in the testing laboratory.

c.

Security measures implemented by the testing laboratory to preclude adulteration of specimens and drug test results.

d.

Other necessary and proper actions taken to ensure reliable and accurate drug test results.

(c) A laboratory shall disclose to the medical review officer a written positive confirmed test result report within 7 working days after receipt of the sample.

A report must not disclose the presence or absence of any drug otherPage than20 aof specific21 drugCODING: and its metabolites listed pursuant to this section.

SectionWords 2.stricken are deletions;

words underlined are additions.

hb1297-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1297 2020 other than a specific drug and its metabolites listed pursuant to this section.

Section 3.

Paragraph (b) of subsection (11) of section 443.101, Florida Statutes, is amended to read:

443.101 Disqualification for benefits.—An individual shall be disqualified for benefits:

(11) If an individual is discharged from employment for drug use as evidenced by a positive, confirmed drug test as provided in paragraph (1)(d), or is rejected for offered employment because of a positive, confirmed drug test as provided in paragraph (2)(c), test results and chain of custody documentation provided to the employer by a licensed and approved drug-testing laboratory is self-authenticating and admissible in reemployment assistance hearings, and such evidence creates a rebuttable presumption that the individual used, or was using, controlled substances, subject to the following conditions:

(b) Only laboratories licensed and approved as provided in s.

440.102(10) s.

440.102(9), or as provided by equivalent or more stringent licensing requirements established by federal law or regulation may perform the drug tests.

Section 4.

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hb1297-00hb1297-01-c1