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 ...

DEPARTMENT OF CORRECTIONS
Departmental

RULE NO: RULE TITLE
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, provide for on-site presumptive testing with a confirmation process follow-up for presumptive positive results, clarify situations that will be considered to be a failed drug test, permit employees who are not in test-designated positions, but volunteer for testing to withdraw from volunteer status prior to testing, and include specific consequences for positive test results.
SUMMARY: Amends the rule to expand the current random drug testing program to include employees in other specified positions in addition to certified offices, provide a review process for employees whose positions have been designated as subject to random testing, provide for on-site presumptive testing with confirmation process follow-up for presumptive positive results, clarify that the failure to cooperate with testing requirements will be considered to be a failed drug test, permit employees who are not in test-designated positions, but volunteer for testing to withdraw from volunteer status prior to testing, and include specific consequences for positive test results.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 944.09, 944.474 FS.
LAW IMPLEMENTED: 112.0455, 944.09, 944.474 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Dorothy M. Ridgway, Office of the General Counsel, Department of Corrections, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500

THE FULL TEXT OF THE PROPOSED RULE 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) No change.

(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.

(f) Test refusal – failure on the part of a randomly selected employee to 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 Sections 943.13 and 943.135, F.S., 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 authorizinged individuals during each random testing period.

(b) through (c) No change.

(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 authorizinged individual shall ensure testing is rescheduled and completed.

(e) No change.

(4) Off-Site Testing and Confirmation Process. Once an employee is randomly selected and scheduled for a test, the authorizinged individual shall:

(a) through (b) No change.

(c) Provide the employee with a written notice and consent for testing form that advises the employee that he or she has been randomly selected for testing, and that he or she has 24 hours to complete the test. If the employee refuses to sign, the employee will be considered to have refused to submit to testing. The authorized individual shall notify the servicing personnel office, and the employee shall be advised in writing that he is subject to disciplinary action up to and including dismissal for refusal to submit to testing.

(5) No change.

(6) If the employee does not report to the collection site within the specified time frame, or as directed on the written notice, the employee will be considered to have refused to submit to drug testing. The employee shall be advised in writing by the servicing personnel office that he is subject to disciplinary action for failure to report to the collection site unless the employee presents sufficient justification for failure to appear. Issues that will be considered include the timely notification to the employee, timely processing by the lab, and transportation issues.

(6)(7) The employee shall remain at the collection site until able to produce a sufficient specimen unless the employee advises that a medical condition has caused the inability to produce a sufficient specimen. If the employee cannot produce a sufficient specimen quantity, the collection site staff shall contact the authorizinged individual. The employee shall provide a doctor’s statement to the authorizinged individual within 3 business days attesting to the medical condition. If the current random testing period has not expired, the employee will be given another notice that he or she has 24 hours to complete the test and will be required to report again for testing.

(7)(8) If an employee’s test results show the specimen to be adulterated, the employee will be considered to have failed the test.

(8) If the employee fails or refuses to cooperate in any way with the drug testing process as outlined in (4) through (6), including completing and signing required paperwork; failing to report to the collection site within the specified time frame; failing to follow proper collection site protocols; failing to provide a specimen without a doctor’s statement as specified in (6); using a substitute specimen; or providing a specimen determined to be adulterated, the authorizing individual shall notify the servicing personnel office, and the employee shall be advised in writing that he is subject to disciplinary action up to and including dismissal for refusal to submit to testing. Refusal to submit to drug testing is considered to be a failed drug test. Employees who are not in test-designated positions, but have volunteered for testing, are permitted to withdraw from their volunteer status at any point prior to the actual submission of a specimen and such withdrawal shall not be considered to be a failed drug test.

(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) If the Medical Review Officer cannot contact the employee within 3 days, the Medical Review Officer shall request that the contact person direct the employee to contact the Medical Review Officer. If the employee does not contact the Medical Review Officer within 2 days from the request to the employee by the contact person, the Medical Review Officer shall report the test results as positive, which is considered to be a failed drug test.

(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 to the Criminal Justice Standards and Training Commission for possible decertification.

(f) Notification to any other relevant licensing or certification board for possible action.

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 authorizing 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 authorizing 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_________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Ralph Kiessig, Deputy Director of Administration
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Hieteenthia “Tina” Hayes, Acting Deputy Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 7/24/2006
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: May 26, 2006