33-208.403: Random Drug Testing of Employees
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to expand the current random drug testing program to include other specified positions in addition to certified officers, provide a review process for employees whose positions have been designated as subject to random testing, and provide for on-site presumptive testing with a confirmation process follow-up for presumptive positive results.
SUBJECT AREA TO BE ADDRESSED: Random drug testing program.
SPECIFIC AUTHORITY: 944.09, 944.474 FS.
LAW IMPLEMENTED: 112.0455, 944.09, 944.474 FS.
IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE NOTICED IN THE NEXT AVAILABLE FLORIDA ADMINISTRATIVE WEEKLY.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Dorothy M. Ridgway, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:
33-208.403 Random Drug Testing of Employees.
(1) Definitions.
(a) Authorizing Authorized Individual – The person designated by the Chief of Personnel to interact with an employee regarding the drug testing program.
(b) Chain of Custody – The procedures used to account for the integrity of each urine specimen by tracking its handling and storage from the point of specimen collection to final disposition.
(c) Contact Person – the employees designated by the Chief of Personnel to interact with the laboratory and Medical Review Officer and coordinate the drug testing program regarding drug test results.
(d) Medical Review Officer – a licensed physician under contract with the Department or the outside vendor used by the Department who reviews all drug tests from the laboratory and makes the final determination regarding the test result.
(e) Random Drug Test – A drug test conducted based on a computer generated random sampling in positions identified as being subject to random testing, administered for the purposes of detecting determining the presence of drugs, controlled substances, including anabolic steroids, or their metabolites.
(f) Random Test Designated Position – An employee is in a random test designated position, and thus is required to submit to random testing, if the employee:
1. Has job duties that require or allow the employee to carry a firearm;
2. Possesses law enforcement powers;
3. Has job duties involving regular unsupervised access to and direct contact with inmates or offenders under community supervision;
4. Has job duties involving unsupervised access to controlled substances;
5. Operates dangerous instrumentalities such as vehicles;
6. Provides health care and psychological care to inmates;
7. Provides direct services to inmates;
8. Has access to investigations of criminal allegations and the ability to alter the investigation;
9. Has the ability to alter information in databases, computer systems, or records relating to inmates or offenders under community supervision; or
10. Is in any position, including a supervisory or management position, in which a drug impairment could constitute an immediate and direct threat to public health or safety.
(g)(f) Test refusal – failure on the part of a randomly selected employee to willfully and fully comply with the Department’s random drug testing procedures. This includes refusal to sign required forms, refusal to provide specimens for testing, failing to report to the collection site within required time frames, failing to provide a valid specimen, attempting to alter the specimen with adulterants, and using substitute specimens in makeshift devices or objects.
(2) Only employees in random test designated positions, including employees required to maintain certification under ss. 943.13 and 943.135, FS, shall be subject to mandatory random drug testing. Employees who are not in test designated positions will be included in the random drug testing pool only if such employees choose to voluntarily participate in the random testing program. An employee may seek review of the determination that he or she is working in a test designated position within 14 days of notification of test designation or, subsequently, within 14 days of a change in the employee’s job duties.
(a) To seek review, the employee shall submit a letter of explanation based upon the criteria in paragraph (1)(f) of this rule to the Chief, Bureau of Personnel.
(b) Additional review of position duties will be conducted by the Bureau of Personnel and the Office of the General Counsel and will include information provided in the employee’s request as well as any other information obtained during the review.
(c) A written response from the Bureau of Personnel will be provided to the employee once a determination is made on the appeal.
(3) The Department Bureau of Research and Data Analysis shall generate random lists of individual positions subject to testing.
(a) The Department Bureau of Personnel shall disburse the list to the authorized individuals during each random testing period.
(b) The list shall include the date by which all tests for that testing period must be completed.
(c) Each time an employee's name appears on the random list, he or she shall be tested regardless of whether or not he or she has been previously tested.
(d) Listed employees shall not be excused from random drug testing unless they are on approved leave of absence, or out of town on department business, or it is determined that the employee was listed in error. If the employee returns to his or her assigned worksite in time for the test to be rescheduled and completed within the prescribed deadline, the authorized individual shall ensure testing is rescheduled and completed.
(e) The list is confidential and shall not be disseminated to non-essential staff members prior to testing.
(4) Off-Site Testing and Confirmation Process. Once an employee is randomly selected and scheduled for a test, the authorized individual shall:
(a) through (c) No change.
(5) through (9) No change.
(10) If the test results are positive, the specimen sample will be retested by the laboratory for confirmation.
(11) All employees with a positive confirmed drug test shall be contacted by the Medical Review Officer within 3 days of receipt of the results from the laboratory and offered the opportunity to produce valid documentation of lawful ingestion of the identified controlled substance. The Medical Review Officer may also request consent to review the employee’s medical records to assist in evaluating the test results. The employee shall have 15 days from the date of contact by the Medical Review Officer to present valid documentation of lawful intake of the identified controlled substance from that provides a legitimate explanation for the positive test results.
(12) No change.
(13) In the case of positive test results for which the employee did not or could not provide valid documentation of lawful intake of the identified controlled substance a legitimate explanation, the employee shall be notified in writing of the positive test results and the consequences of the results. Depending upon the employee’s position and the surrounding circumstances, possible consequences include:
(a) Referral to an employee assistance program;
(b) Immediate removal from his or her position to a position in another class;
(c) Immediate placement in paid or unpaid leave status;
(d) Disciplinary action up to and including dismissal; and
(e) Notification of the Criminal Justice Standards and Training Commission for possible decertification.
The employee shall be immediately removed from his position in accordance with the department’s dismissal process and the Criminal Justice Standards and Training Commission shall be notified.
(14) In the event of collection site or laboratory error, If the Medical Review Officer will reports the test results as cancelled, it shall be considered collection site or lab error and a re-test shall be scheduled immediately. The employee shall be given no more than 24 hours notice for the re-test. If a re-test cannot be conducted prior to the deadline for the random testing period, the authorized individual Regional Personnel Officer shall provide an explanation to the Chief of Personnel.
(15) through (16) No change.
(17) Within 5 days of the completion of random testing, the authorized individual shall submit to the Bureau of Personnel the names of the employees not tested and the reason the test was not completed, with the attendance and leave reports or travel reimbursement requests attached for any employee unavailable for the test.
(17)(18) The following appeal process shall be available to an employee who wants to appeal a positive confirmed drug test.
(a) through (b) No change.
(18) On-Site Presumptive Testing with Confirmation Process Follow-up for Presumptive Positives. If on-site presumptive testing is employed, the authorized individual shall:
(a) Ensure administration of presumptive testing using an oral fluid device or other non-invasive process;
(b) Refer employees with presumptive positive results to off-site testing in accordance with subsection (4) of this rule.
(19) All information, interviews, statements, memoranda, and drug test results, written or otherwise, received or produced as a result of the drug testing program shall be confidential.
Specific Authority 944.09, 944.474 FS. Law Implemented 112.0455, 944.09, 944.474 FS. History—New 9-11-05, Amended________.