Florida Drug Testing Laws 2024

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Florida Drug Testing Laws 2024

The Florida Drug-Free Workplace Act encourages employers to participate in the state’s drug-free workplace program and conduct drug testing on employees. The drug-free workplace program regulates workplace drug testing in the state and promotes drug-free workplaces. It is also aimed at helping employers maximize their productivity levels while avoiding work-related accidents resulting from employees' use of drugs. Any employer adopting the state's drug-free workplace program must comply with its several drug testing laws. Florida's drug-free workplace laws are designed in a way that provides protection for both employers and employees. For instance, an employee's sample for drug tests must be collected with due regard to the employee's privacy and in a way reasonably calculated to prevent contamination or substitution of the specimen. Additionally, employees can challenge drug test results under the state's drug-free workplace laws.

Per Section 381.986 of Florida Statutes, employers do not have to accommodate cannabis use or possession by employees on workplace premises and may prohibit employees from working while impaired by marijuana. The passage of Section 381.986 changed the law of the workplace in Florida. It addressed several issues employers may encounter as more Floridians continue to enroll in the state's Medical Marijuana Use Registry. However, it is silent about whether they must accommodate employees' off-duty use of medical cannabis. Nevertheless, the state's Statute expressly bans medical cannabis patients from consuming medical marijuana on workplace premises unless their employers permit them to do so. Florida employers are not limited in their ability to establish or enforce drug-free workplace policies, including drug testing policies.

The provisions of the Florida Drug-Free Workplace Act are generally applicable to state agencies and not to municipalities. However, a municipality can utilize these provisions to create a drug-free workplace program. Like the Americans with Disabilities Act (ADA), the Florida Civil Rights Act (FCRA) protects disabled employees from being discriminated against by employers. However, because the state's medical marijuana laws do not require employers to accommodate medical cannabis use, employers should have no fears about employees' lawsuits for prohibiting on-site medical cannabis use. State law clearly prohibits the use of medical cannabis in the workplace.

What Kinds of Drug Tests Can Employers Conduct in Florida?

Under Florida's drug-free workplace law, employers may test employees for benzodiazepine, cocaine, opiate, synthetic narcotics, amphetamine, methaqualone, phencyclidine, and marijuana. In most cases, workplace drug tests are largely focused on detecting cannabis. Typically, these tests aim to detect the presence of psychoactive metabolites from marijuana in employees' body systems and can be conducted under the following conditions:

• Random Testing - Employees can be sampled at random for drug testing
• Reasonable Suspicion Testing - If there is a reasonable suspicion of an employee's marijuana use, the employer may request that the employee undergo a drug test. This always comes in handy when an employee exhibits erratic behavior, shows signs of impairment on duty, or if a credible source reports them to have consumed cannabis in violation of workplace policy
• Pre-Employment Testing - This is usually conducted after hiring an employee before they resume
• Routine Fitness of Duty Testing - This kind of drug testing is conducted as part of routinely scheduled fitness-for-work medical examinations for employees
• Followup Testing - This is conducted on employees who enter an Employee Assistance Program (EAP) or a drug rehabilitation program for drug-related issues as a follow up such programs

Urine is the only specimen type that may be used for drug testing under Rule 59A-24.004 of the Florida Drug-Free Workplace Code. However, employers participating in the state's Drug-Free Workplace Program are permitted to use employees' hair, blood, and urine as samples for workplace drug testing.

Can Employers Do Random Drug Testing in Florida?

Yes. The Florida Drug-Free Workplace Act permits private and public employers in the state to conduct random drug testing on their employees once every three months. A workplace random drug test may only sample up to 10% of the total employees, and the random sample must be computer-generated by an independent third party. Public employers in Florida are allowed by law to conduct random tests on employees in special-risk positions, but the selection process must be unbiased.

What Happens if You Fail a Drug Test in Florida for a Job?

The consequences of failing a workplace drug test in Florida are severe. In most cases, employees who test positive for drug tests lose their jobs. However, an employer may not make any adverse decision on an employee based on an initial positive drug test result that a medical review officer (MRO) has yet to verify. Typically, any employee who fails a drug test in Florida has five days to explain the test result or contest it. The MRO may report a positive result to the employer if the employee's explanation to the MRO is not tenable or unsatisfactory. The employee must notify the lab of any administrative or civil action if they wish to contest a positive drug test result. In this case, the employee has 180 days after receiving written notification of their positive test result to obtain a portion of the specimen from the employer for a retest. Retest can take place at any certified or licensed lab of the employee’s choice at their expense.

Can I Be Fired for Refusing a Drug Test in Florida?

Yes. Under state law, no Florida employer is barred from disciplining or discharging an employee for refusing to submit to a workplace drug test. Any sanction imposed on such an employee must be consistent with those meted out on employees who fail drug tests because, by law, refusal to submit to a drug test is presumed to be a positive result.

Can You Get Fired for Failing a Drug Test with a Medical Card in Florida?

Yes, Florida employers are permitted to fire employees for failing workplace drug tests for cannabis, even if such employees have state-issued medical marijuana cards. Although medical cannabis is legal in the state, an MRO cannot ignore the results of a positive test arising from an employee's use of a cannabis prescription. This especially applies to employees in safety-sensitive positions. Similarly, an employer may refuse to hire a job candidate who fails a drug test regardless of the applicant's status as a medical marijuana cardholder.

Can Employers Conduct Drug Tests on Applicants in Florida?

Yes, employers with drug-free workplace policies in Florida can request job applicants to submit to drug tests as part of their recruitment processes. It is an employer's responsibility to choose which drugs will be tested. Generally, in Florida, an employer can choose all or any drugs listed in Chapter 59A-24 of the state's Administrative Code. However, any employer that intends to conduct drug testing on job applicants in the state must notify the applicants while announcing the vacancies. The notice should be displayed in plain view on the employer's premises. They must also make copies of their drug-free workplace policy to job applicants during regular work hours.

In Florida, employers can refuse to hire job applicants for failing their mandatory drug tests. Similarly, a job applicant who refuses an employer's drug test after being duly notified of the employer's intent to drug test them can be denied employment. Refusing a workplace drug test in Florida is considered a positive drug test result. Job applicants who fail drug tests have 5 working days after receiving notifications of the results to contest such test results to the MRO.

Is Pre-Employment Drug Testing Allowed in Florida?

Yes, pre-employment drug testing is allowed in Florida. However, after making a job offer, an employer must obtain a new hire's permission for pre-employment drug testing by asking them to sign a drug testing consent form. The consent form should include a general statement on the list of drugs the employer will test and the consequences of refusing to submit to a drug test. It should also clearly state the action the employee will take on any employee with a positive confirmed drug test result. While there are no Florida pre-employment drug testing laws, employers with drug-free workplace policies in the state are required to conduct pre-employment drug tests on applicants with conditional offers of employment.

Does Florida Allow Public Agencies to Submit Employees to Workplace Drug Tests?

Yes, public agencies in Florida can request employees in mandatory-testing or special-risk positions to submit to workplace drug tests under the state's Drug-Free Workplace Act. The state's drug testing policies do not protect state or local government employees in special-risk positions if they test positive for drug tests. Such employees may be punished or discharged by their employers for even the first positive confirmed test result for drugs considered illicit substances under Section 893.03 of Florida Statutes.

Can Employers Choose to Create Drug-Free Workplace Policies?

Yes. The Florida Drug-Free Workplace Act permits employers in the state to develop drug-free workplace policies. Private employers with at least three employees are qualified to establish drug-free workplace policies in the state and must make their policies available to employees once before any testing. After creating a drug-free workplace policy in Florida, an employer can only conduct drug tests after 60 days' notice of the effective date of the policy has been given. Note that the 60-day notice does not apply to job applicants.

A drug-free workplace policy in Florida should, at a minimum, include a general statement of the employer's position on employee drug use and drug testing procedures. It should also have a confidentiality statement and state the types of drug tests that may be conducted. The requirements an employer must meet to create a drug-free workplace policy in the state are outlined in Section 440.102 of Florida Statutes.

Employees Exempted From Florida Workplace Drug Testing Laws

Only employees working with employers who are not participating in the Florida Drug-Free Workplace Program are exempted from the state's workplace drug test laws. Such employees are not bound to undergo workplace drug testing and may contest their refusal to do so in line with state law.

What are the Requirements for Drug Testing Labs in Florida?

Florida employers may only use labs certified by the United States Department of Health and Human Services (HHS) or licensed by the state's Agency for Health Care Administration for all workplace drug tests. In addition, they must employ the services of certified medical review officers (MROs) to interpret employees' drug test results. An MRO must not be an employee of the engaged drug testing lab. A certifying laboratory for drug tests in Florida must have a license, follow proper quality control procedures, and implement security measures to preclude adulteration of samples and drug test results.