Governor Rick Scott has signed into law controversial House Bill (HB) 1205, which will change the way state employers deal with drug testing their employees. What follows is a quick update on how HB 1205 will affect employers when it goes into effect at the beginning of July.
In addition to applicant testing and “reasonable suspicion,” “fitness for duty,” and rehab follow-up testing, state of Florida departments and agencies now will be able to call on random testing once every three months as a new enforcement tool. The pool of employees to be tested must be compiled by an independent third party to ensure it is random, random tests can’t be done on more than 10 percent of an employer’s workforce per test, and they can’t be done more than once every three months. Another thing to watch for is that it may become easier for employers to obtain authorization to conduct “reasonable suspicion” testing — but the language isn’t very clear, so we will have to wait on the courts for that.
Gone is an employee’s entitlement to enroll in an employee assistance program and retain his job if he has received only one confirmed positive test result. Employees now may be immediately terminated under those circumstances — but they can’t be fired for voluntarily seeking treatment while employed if they haven’t previously tested positive or gone through rehab or an employee assistance program.
Finally, the reprisal system for positive drug-test results has been changed in a way that probably will encourage state employers to fire employees with positive results. As we have said, they now have the right to do that. But if they don’t fire the employee and instead put her into an assistance program, they are required to make an additional determination and potentially a subsequent employment action based on that finding.
Employers must determine whether the employee’s duties fall into one of a number of categories, such as carrying weapons, working with children, performing dangerous procedures, or operating heavy machinery. If employees who have been placed into assistance programs fall into one of those categories, they have to be reassigned new duties for the duration of the program that they can “safely and effectively perform.” If that’s impossible, they have to be put on leave — whether that’s with or without pay isn’t mandated. If it’s without pay, however, they are allowed to exhaust previously accumulated paid leave credits first.
There are three final things of note:
First, the new law specifically applies the new provisions to the Department of Corrections with slightly stricter language.
Second, although most of the legislation deals only with the state government, it also makes some small changes in the drug-free-workplace program you may be using to receive a discount on your workers’ compensation insurance. There are a few definitional changes, but the gist of it is that your policy now can be more aggressive with the law’s reassurance that you won’t lose your discount because of that.
Finally, the law actually says employers aren’t required to perform any tests but are authorized to do so if they want. Stay tuned: Executive orders from the governor might end up filling in the blank there and making testing mandatory.
We will provide more info on this new law in an upcoming issue of Florida Employment Law Letter.
If you have questions about this new law, consult your Florida employment lawyer or contact G. Thomas Harper, a partner with Harper Gerlach PL and the editor of Florida Employment Law Letter.