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       Florida Senate - 2010                                     SB 258
       
       
       
       By Senator Bennett
       
       
       
       
       21-00257-10                                            2010258__
    1                        A bill to be entitled                      
    2         An act relating to the drug testing of potential and
    3         existing beneficiaries of unemployment compensation;
    4         creating s. 443.093, F.S.; creating the Drug
    5         Deterrence Pilot Program within the Agency for
    6         Workforce Innovation; providing legislative intent;
    7         providing the scope of eligibility for benefits;
    8         defining terms; providing for the screening of
    9         individuals to determine which individuals must be
   10         tested; providing for notice; providing terms of
   11         disqualification for benefits; requiring the agency to
   12         supply information concerning drug treatment programs;
   13         providing for authentication and the admissibility of
   14         drug tests in unemployment compensation hearings;
   15         creating a rebuttable presumption of drug use under
   16         certain circumstances; providing testing procedures;
   17         providing for the preservation of test samples;
   18         providing for the retesting of test samples; providing
   19         for an appeals process; authorizing the agency to
   20         adopt rules; directing the agency to submit a report
   21         to the Governor and Legislature; directing the Office
   22         of Program Policy Analysis and Government
   23         Accountability to submit a report to the Governor and
   24         Legislature; providing for expiration of the program;
   25         providing an effective date.
   26  
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Section 443.093, Florida Statutes, is created to
   30  read:
   31         443.093Drug Deterrence Pilot Program.
   32         (1)PURPOSE.It is the intent of the Legislature to create
   33  within the Agency for Workforce Innovation the Drug Deterrence
   34  Pilot Program. The Legislature finds that illegal drug use is a
   35  threat to public safety. The purpose of this pilot program is to
   36  require the drug testing of certain individuals as a condition
   37  for unemployment benefits in order to prevent the enabling of
   38  drug use with government funds, thereby protecting the public.
   39         (2)SCOPE.In addition to any benefit eligibility or
   40  disqualification conditions prescribed in this chapter, any
   41  individual making a claim for benefits or receiving benefits and
   42  residing within Regional Workforce Board 18 is subject to this
   43  section. As a condition to making a claim for benefits or
   44  accepting receipt of benefits, an individual must agree to
   45  comply with the terms of this section, including, but not
   46  limited to, agreeing to be subject to drug testing.
   47         (3)DEFINITIONS.As used in this section, the term:
   48         (a)“Agency” means the Agency for Workforce Innovation.
   49         (b)“Drug” means an amphetamine, a cannabinoid, cocaine,
   50  phencyclidine (PCP), a hallucinogen, methaqualone, an opiate, a
   51  barbiturate, a benzodiazepine, a synthetic narcotic, a designer
   52  drug, or a metabolite of any of the substances listed in this
   53  paragraph.
   54         (c)“Drug test” or “test” means any chemical, biological,
   55  or physical instrumental analysis for the purpose of determining
   56  the presence or absence of a drug or its metabolites.
   57         (4)CREATION.
   58         (a)The Agency for Workforce Innovation shall implement an
   59  unemployment compensation drug testing pilot program with
   60  Regional Workforce Board 18 no later than October 1, 2010.
   61         (b)In creating and implementing the program, the agency
   62  shall:
   63         1.Develop a screening mechanism by which to assess whether
   64  a person is likely to be an illicit drug user;
   65         2.Drug test individuals who are assessed to be likely
   66  illicit drug users;
   67         3. Make a determination of eligibility under s. 443.091 and
   68  disqualification under s. 443.101 before an applicant is
   69  selected for drug testing;
   70         4.Provide notice of the potential for drug testing to
   71  individuals claiming and receiving benefits; and
   72         5.Require an individual who is to be tested to sign an
   73  acknowledgement that he or she has received notice of the
   74  agency’s drug testing policy and that he or she has a right to
   75  refuse to take the drug test.
   76         (5)TESTING; USE OF RESULTS.
   77         (a)An individual is disqualified from receiving or
   78  continuing to receive benefits upon:
   79         1.Refusing to submit to testing under this section; or
   80         2.Upon testing positive for drugs as a result of a test
   81  under this section.
   82         (b)If the individual fails the drug test required under
   83  this section, the individual is not entitled to unemployment
   84  benefits for up to 52 weeks, under rules adopted by the agency,
   85  and until he or she has earned income of at least 17 times his
   86  or her weekly benefit amount.
   87         (c)The agency shall provide any individual who tests
   88  positive with information concerning drug treatment programs
   89  that may be available in the area in which he or she resides;
   90  however, the agency or the state is not responsible for
   91  providing or paying for drug treatment as part of the testing
   92  conducted under this section.
   93         (6)TESTING.
   94         (a)All specimen collection and testing for drugs under
   95  this section must be performed in accordance with the following
   96  procedures:
   97         1.A sample shall be collected with due regard to the
   98  privacy of the individual providing the sample, and in a manner
   99  reasonably calculated to prevent substitution or contamination
  100  of the sample.
  101         2.Specimen collection must be documented, and the
  102  documentation procedures must include:
  103         a.Labeling of specimen containers so as to reasonably
  104  preclude the likelihood of erroneous identification of test
  105  results.
  106         b.A form for the person being tested to provide any
  107  information he or she considers relevant to the test, including
  108  identification of currently or recently used prescription or
  109  nonprescription medication or other relevant medical
  110  information. The form must provide notice of the most common
  111  medications by brand name or common name, as applicable, as well
  112  as by chemical name, which may alter or affect a drug test. The
  113  providing of information does not preclude the administration of
  114  the drug test, but must be taken into account in interpreting
  115  any positive, confirmed test result.
  116  
  117  Specimen collection, storage, and transportation to the testing
  118  site must be performed in a manner that reasonably precludes
  119  contamination or adulteration of specimens.
  120         (b)Every specimen that produces a positive test result
  121  must be preserved for at least 6 months. However, if the tested
  122  person undertakes an administrative or legal challenge to the
  123  test result, the sample shall be preserved until the case or
  124  administrative appeal is settled.
  125         (c)An individual who tests positive for drugs may refute
  126  and rule out a false positive test by having the same sample
  127  retested by gas chromatography with mass spectrometry, gas
  128  chromatography, high performance liquid chromatography, or an
  129  equally or more specific test.
  130         (d)Test results and chain-of-custody documentation
  131  provided to the agency by an approved drug-testing laboratory is
  132  self-authenticating and admissible in unemployment compensation
  133  hearings, and such evidence creates a rebuttable presumption
  134  that the individual used, or was using, drugs.
  135         (7)APPEAL.Any person who is deemed ineligible for, or is
  136  disqualified from, receiving unemployment benefits because of a
  137  positive drug test has a right to appeal the agency’s decision
  138  pursuant to s. 443.151(4).
  139         (8)RULES.The agency shall adopt rules under ss.
  140  120.536(1) and 120.54 to administer this section.
  141         (9)REPORT.
  142         (a)The agency shall submit a report to the Governor, the
  143  President of the Senate, and the Speaker of the House of
  144  Representatives by January 1, 2012, which at a minimum:
  145         1.Gives the number of individuals tested, the substances
  146  tested for, and the results of the testing;
  147         2.Gives the number of individuals denied unemployment
  148  compensation benefits for failing a drug test upon claiming
  149  benefits and the number of individuals for whom benefits were
  150  terminated for failing a test while receiving benefits;
  151         3.Describes any obstacles to implementation of the
  152  program;
  153         4.Gives the number of applicants who refused to be tested;
  154         5.Gives the number of weeks and the amount of benefits for
  155  which individuals would have been eligible if they had not
  156  tested positive or refused to take the test;
  157         6.Estimates the costs of the drug testing program,
  158  including the average cost of individual tests and the cost of
  159  administering the program;
  160         7.Estimates savings, if any, under the program to the
  161  Unemployment Compensation Trust Fund; and
  162         8.Includes a recommendation on whether the Legislature
  163  should maintain the program.
  164         (b)Before the 2012 Regular Session of the Legislature, the
  165  Office of Program Policy Analysis and Government Accountability
  166  shall review and evaluate the Drug Deterrence Pilot Program and
  167  submit a report to the Governor, the President of the Senate,
  168  and the Speaker of the House of Representatives. The report must
  169  evaluate whether the program is cost-effective and deters drug
  170  users from receiving benefits and make a recommendation to the
  171  Legislature to abolish, continue, reorganize, or expand the
  172  program.
  173         (10)EXPIRATION.This section expires June 30, 2012.
  174         Section 2. This act shall take effect July 1, 2010.

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