The purpose and effect of the proposed rule is to generally modify the provisions concerning who is subject to random testing and the procedures associated with such testing.

DEPARTMENT OF CORRECTIONS

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 generally modify the provisions concerning who is subject to random testing and the procedures associated with such testing.
SUMMARY: The proposed rule amends the provisions regarding who is subject to drug testing and the consequences of positive drug testing results.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The agency has determined that this rule will not have an adverse impact on small business and is not expected to directly or indirectly increase regulatory costs more than $200,000 within a year of taking effect. A SERC has not been prepared by the agency.
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.
RULEMAKING 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 THE FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Kendra Lee Jowers, 501 South Calhoun Street, Tallahassee, Florida 32399-2500

THE FULL TEXT OF THE PROPOSED RULE IS:

33-208.403 Random Drug Testing of Employees.

(1) Definitions.

(a) Authorizing 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 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.

(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 Employee Drug Test – A drug test conducted upon based on a computer-generated random sampling of Department employees, administered for the purposes of detecting 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.

(2) All Department Only employees shall be subject to mandatory random employee drug tests in random test designated positions, including employees required to maintain certification under Sections 943.13 and 943.135, F.S., 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.

(a)(3) The Department shall generate random lists of employees individual positions subject to testing each fiscal quarter. The time period for testing in an individual quarter shall be randomly chosen each quarter.

(b)(a) The Department shall disburse the list to the authorizing individuals during each random testing period.

(c)(b) The list shall include the date by which all tests for that testing period must be completed.

(d)(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.

(e)(d) Listed employees shall not be excused from random drug testing unless they are on approved leave of absence or are, out of town on Department 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 time period deadline, the authorizing individual shall ensure testing is completed.

(f)(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 for a drug test, the authorizing individual shall:

(a) Initiate the chain of custody process;

(b) Provide the employee with the drug testing instructions and directions to the designated collection site;

(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.

(5) Once the necessary forms have been completed and signed, the employee shall be instructed to present the employee’s Department of Corrections’ employee identification card to collection site staff. The employee shall take all copies of the chain of custody form to the collection site.

(6) 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 authorizing individual. The employee shall provide a doctor’s statement to the authorizing individual within three 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) 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 this Rule subsections (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 subsection (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.

(9) 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.

(10)(9) If the employee’s test results are negative for drugs but show possible dilution, the test shall be considered negative.

(11)(10) If the test results are positive, the specimen will be retested by the laboratory for confirmation.

(12)(11) All employees with a positive confirmed drug test shall be contacted by the Medical Review Officer within three 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 five 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 the positive test results.

(13)(12) If the Medical Review Officer cannot contact the employee within three 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 two 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, the employee shall be notified in writing of the positive test results and the consequences of the results, in accordance with the following:

(a) First time positive test result for staff not certified under Section 943.13, F.S.

1. All employees will be given a mandatory referral to the employee assistance program (in accordance with department procedure).

2. Any governing licensure/certification board (relevant to the employee’s position requirements) will be advised of the positive test result.

3. Any employee in a safety sensitive position (as defined by Section 112.0544, F.S.), receiving a first time positive confirmed drug test will be immediately placed on leave status. If the employee refuses to be placed on leave status, the department will initiate official proceedings to remove the employee from her/his position.

4. All employees will be required to complete the course of treatment recommended by the employee assistance program treatment provider; however, employees in safety sensitive positions who are placed on leave status pursuant to subparagraph (13)(a)3. above, will be required to complete the recommended course of treatment or present a release to return to work from the treatment provider prior to returning to work.

5. If an employee refuses to comply with all requirements of subparagraph (13)(a)4. above, she/he will be dismissed in accordance with department procedure.

6. Once the employee is released to return to work by the treatment provider, the employee will be returned to work in the same or equivalent position, unless such action is prevented due to actions taken by the governing licensure or certification board or body relevant to the employee’s position requirements.

7. If actions by a governing licensure or certification board or body prevent placement into or ongoing employment in the previously held position, the department will offer alternate position placement in accordance with the employee’s qualifications, if such is available. If no alternate position placement is available or the employee is unwilling to accept available placement options, the employee will be dismissed in accordance with department procedure.

8. Follow-Up Testing: All employees who remain employed following a first time positive confirmed drug test will be subject to follow-up urinalysis drug testing on a quarterly, semiannual, or annual basis for up to two years thereafter, pursuant to Section 112.0455, F.S.

(b) First time positive result for staff certified under Section 943.13, F.S.

1. All employees receiving a positive confirmed drug test will immediately be placed on leave status. If the employee refuses to be placed on leave status, the Department will initiate official proceedings to remove the employee from his position.

2. All employees receiving a positive confirmed drug test will be removed from the class. The Department will offer alternate non-certified position placement in accordance with the employee’s qualifications, if such is available. If no alternative position placement is available or the employee is unwilling to accept available placement options, the employee will be dismissed in accordance with department procedure.

3. All employees will be given a mandatory referral to the employee assistance program in accordance with department procedure.

4. The Criminal Justice Standards and Training Commission will be contacted and provided with a report in accordance with established reporting procedures.

5. All employees placed in an alternate position will be required to complete the course of treatment recommended by the employee assistance program treatment provider.

6. If an employee refuses to comply with all requirements for subparagraph (13)(b)5. above, he will be dismissed in accordance with department procedure.

7. Follow-Up Testing: All employees who remain employed following a first time positive confirmed drug test will be subject to follow-up urinalysis drug testing on a quarterly, semiannual, or annual basis for up to two years thereafter, pursuant to Section 112.0455, F.S.

(c) Second time positive test result.

1. Any employee receiving a second-time positive confirmed drug or alcohol test will be dismissed.

2. Any other governing licensure or certification board or body (relevant to the employee’s position requirements) will be contacted and provided with a report in accordance with established reporting procedures.

(d) Employees in trainee or probationary status.

1. Any employee in trainee or probationary status receiving a positive confirmed drug test will be dismissed.

2. Any other governing licensure or certification board or body (relevant to the employee’s position requirements) will be contacted and provided with a report in accordance with established reporting procedures.

(14) In the event of collection site or laboratory error, the Medical Review Officer will report the test results as cancelled and a retest shall be scheduled immediately. The employee shall be given no more than 24 hours notice for the retest. If a re-test cannot be conducted prior to the deadline for the random testing period, the authorizing individual shall provide an explanation to the Chief of Personnel.

(15) If the Medical Review Officer receives subsequent documentation that a positive test result was caused by a legitimate use of drugs, the Medical Review Officer shall report the result as negative and the Department’s contact person shall be notified as such.

(16) Should subsequent documentation be received reflecting that the positive result was in error, the authorizing individual shall inform the Bureau of Personnel so that remedial action can be taken if necessary.

(17) 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, the employee shall be notified in writing of the positive test results and the consequences of the results, in accordance with the following:

(a) For staff not certified under Section 943.13, F.S.:

1. First-time positive result:

a. All such employees will be given a mandatory referral to the employee assistance program (in accordance with Department procedure).

b. Any governing licensure/certification board (relevant to the employee’s position requirements) will be advised of the positive test result.

c. The employee will be required to complete the course of treatment recommended by the employee assistance program treatment provider.

d. If the employee refuses to comply with all requirements of the course of treatment recommended by the employee assistance program treatment provider, she/he will be dismissed in accordance with Department procedure.

e. Once the employee is released to return to work by the treatment provider, the employee will be returned to work in the same or equivalent position, unless such action is prevented due to actions taken by the governing licensure or certification board or body relevant to the employee’s position requirements.

f. If actions by a governing licensure or certification board or body prevent placement into or ongoing employment in the previously held position, the Department will offer alternate position placement in accordance with the employee’s qualifications, if such is available. If no alternate position placement is available or the employee is unwilling to accept available placement options, the employee will be dismissed in accordance with Department procedure.

g. Follow-Up Testing: All employees who remain employed following a first time positive confirmed drug test will be subject to follow-up urinalysis drug testing pursuant to Section 112.0455, F.S.

2. Second time positive test result.

a. Any such employee receiving a second-time positive confirmed drug or alcohol test will be dismissed.

b. Any governing licensure or certification board or body relevant to the employee’s position requirements will be contacted and provided with a report in accordance with established reporting procedures.

(b) For staff certified under Section 943.13, F.S., who test positive:

1. All employees receiving a positive confirmed drug test will immediately be placed on leave status, and the Department will initiate official proceedings to remove the employee from his position.

2. The Criminal Justice Standards and Training Commission or other governing licensure/certification board relevant to the employee’s position requirements will be contacted and provided with a report in accordance with established reporting procedures, and the Department shall move to terminate the employee in accordance with Department procedure.

(c) Employees in trainee or probationary status.

1. Any employee in trainee or probationary status receiving a positive confirmed drug test will be dismissed.

2. Any other governing licensure or certification board or body (relevant to the employee’s position requirements) will be contacted and provided with a report in accordance with established reporting procedures.

(18)(17) The following appeal process shall be available to an employee who wants to appeal a positive confirmed drug test.

(a) Within 5 working days of the notification of the failed drug test, the employee may submit a letter to the Chief, Bureau of Personnel, contesting or explaining the result.

(b) Within 180 days after receipt of the notification of the failed drug test, the employee may request a re-test of the original specimen at the employee’s expense by the same laboratory or another laboratory licensed and approved by the Agency for Health Care Administration. The re-test must be at an equal or greater sensitivity for the drug in question as was used in the first laboratory test. All costs associated with such re-tests shall be borne by the employee.

(19)(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.

(20) No employee selected for random urinalysis testing shall be required to provide the specimen in the direct visual or audial presence of the tester unless there is a documented reason to suspect that the employee has or will adulterate the specimen, such as a prior finding of adulteration.

(21)(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.

Rulemaking Specific Authority 944.09, 944.474 FS. Law Implemented 112.0455, 944.09, 944.474 FS. History–New 9-11-05, Amended 12-18-06, 12-3-08,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Russell Hosford, Assistant Secretary of Institutions
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Edwin G. Buss, Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 22, 2011
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: July 1, 2011