III. HOW TO BECOME A STATE OF FLORIDA, WORKERS’
COMPENSATION DRUG-FREE WORKPLACE
A. Plan And Develop A Clear And Comprehensive Drug-Free Workplace Policy
The first step in becoming a carrier certified workers’ compensation drug-free workplace
will be to plan, organize and develop your drug-free workplace policy. One time only,
prior to any testing, this policy must be provided to all employees and job applicants.
There are certain components which must be contained in the written drug-free
workplace policy in order to qualify for and be in compliance with the Carrier Certified
Workers’ Compensation Drug-Free Workplace Program. These are:
1. A General Statement of the Employer’s Policy on Employee Drug Use,
which must identify the following:
>Employer prohibition of drug use
>Types of tests required (see table titled “Drug Tests”)
>Actions an employer may take as a result of a positive test result
2.The Florida Law which gives the Employer the Authority to Require Drug
Testing. That Law is found in Section 440.102, of the Florida Statutes ( a
copy of Section 440.102 can be provided by calling the Customer Services Center at
3. Drug Testing Procedures
>An employer must use a laboratory that is licensed by the Florida Agency
for Health Care Administration or certified by the U.S. Department of
Health and Human Services. The name and address of the testing laboratory
the employer will be using must also be stated in the policy (A current listing
of the certified laboratories authorized by the Agency for Health Care
Administration can be obtained by calling the Agency for Health Care
Administration at (850) 487-3109 or the WC Customer Service Center
at (850) 413-1601).
>An employer is required to use a certified medical review officer (MRO)
(include name and address, telephone number in your policy). The MRO
will be responsible for:
Interpreting the drug test results,
Contacting the employee if the drug test is positive.
The MRO is required to contact the donor who has a confirmed
positive test result before reporting the results of the test to the
If the donor has a plausible explanation for the test result
showing positive (i.e., legal use of prescription or nonprescription
medication), as determined by the MRO, the MRO will report the
test result as negative to the employer. The MRO cannot be an
employee of the testing laboratory.
>Initial testing cannot begin until 60 days notice has been provided of the
effective date of the program, unless the employer had some type of testing
program in place prior to 07/01/90; then no notice period is required. The
date of initial testing should also be included in the policy. This gives
employees a chance to come to the employer and request assistance. The 60 day notice
does not apply to job applicants.
>The employer must include notice to job applicants on vacancy
announcements for those positions for which drug testing is required. A
notice of the employer’s drug-testing policy must be posted in plain view on
the employer’s premises, and copies of the policy must be made available
for the employees or job applicants during regular business hours in the
employer’s personnel office, or other suitable location.
>All information, interviews, reports, statements, memoranda, and drug test
results received by the employer through a drug-testing program are to be
considered confidential information. An assurance must be provided
regarding the confidentiality of test results, as well as information about
prescription drugs provided by the employee or job applicant. This
statement need only say that all information produced as a result of testing
remain confidential unless the employee authorizes the release by written
consent. The only exceptions to this are: 1) when such a release is
compelled by a hearing officer or a court of competent jurisdiction, and 2)
for determining qualification for unemployment compensation benefits.
The written consent form must contain the following information:
The name of the person who is authorized to obtain the information,
The purpose of releasing the information,
The duration of the consent (the length of time the release will be
needed; complete start and end dates)
The signature of the person authorizing release of the information.
>Procedures for employees and job applicants to confidentially report to the
MRO the use of prescription or nonprescription medications both before
and after being tested. You may instruct your MRO to contact each donor
prior to testing to ensure that he or she has all of the information necessary
to adequately and effectively analyze the test results. This information may
not be used or received in evidence, obtained in discovery, or disclosed in
any public or private proceedings, except as provided in the law.
>Information on drug testing shall not be released or used in any criminal
proceeding(s) against the employee or job applicant. The employer, agent
of the employer, or laboratory may have access to employee drug testing in-
formation when consulting with legal counsel in connection with actions
relating to defense of a civil action.
5. A List of Over-The-Counter Medications Which May Alter or Affect Drug
>A list of the most common medications, by brand name or common name,
as well as by chemical name, which may alter or affect a drug test must be
provided to each donor prior to testing. This will allow the donor to provide
necessary information to the MRO to properly analyze the test results. A list
of such medications, as developed by the Agency for Health Care
Administration, is available by contacting the Agency for Health Care
Administration at (850) 487-3109, or the WC Customer Service Center at
6. Consequences and Sanctions of Refusing to Submit to Drug Testing
>Consequences and sanctions for an employee who refuses to submit to a
drug test must be described in your policy. If an employee or job applicant
refuses to submit to a drug test, the employer may discharge or discipline
the employee or refuse to hire the job applicant. Sanctions imposed as a
result of refusing to submit to testing, should, however, be consistent with
the sanctions imposed on employees or job applicants who have tested
positive for drugs or alcohol. Keep in mind, sanctions must be applied
consistently to all employees. All employees must be treated equally.
Firm and consistent application of sanctions stated in your policy is essential
for a successful program.
7. A Listing of Employee Assistance Programs in your Local Area, with
Addresses and Telephone Numbers
>A list of names, addresses, and telephone numbers of employee assistance
programs and local drug rehabilitation programs may be found in your local
telephone directory, or provided by the county health service, or local
Chamber of Commerce. If you need assistance in making your list, contact
the Workers’ Compensation Customer Service Center at (850) 413-1601.
8. A Statement that an Employee or Job Applicant who is Notified by the
MRO of a Positive Confirmed Test Result May Contest the Result to the
MRO within 5 Working Days after Receiving Notification of the Test
>If the employee’s or job applicant’s explanation or challenge is unsatisfactory
to the MRO, the MRO may report a positive test result back to the employer.
9. A Statement Informing the Employee or Job Applicant of His/Her
Responsibility to Notify the Laboratory of any Administrative or Civil
Action brought Pursuant to Section 440.102, F.S.
10. The Types of Drugs for which Workers will be Tested
>The policy must include a complete list of all of the drugs for which the
employer will test, described by brand name or common name (if
applicable), as well as by chemical name. The employer has the
responsibility for choosing which drugs will be tested for in the testing
procedures. The employer has the right to choose any or all drugs listed by
the Agency for Health Care Administration in Rule Chapter 59A-24,
Florida Administrative Code ( A copy of Chapter 59A-24 may be obtained
by calling the Agency for Health Care Administration at (850) 487-3109, or
the WC Customer Service Center at (850) 413-1601).
11. A Statement Regarding any Applicable Collective Bargaining Agreement
or Contract and the Right to Appeal to the Public Employees Relations
Commission or Applicable Court
Other practices and policies which you might want to consider including in a
Drug-Free Workplace Program are:
>Involving employees in the development and implementation of the program
>Determining how the program will be presented to and made available to
new and existing employees
B.Once You Have Planned Your Program, How Do You Implement It?
>Distribute the policy to all employees
>Educate your employees about the program. Meet with your employees
to explain the benefits of having a drug-free work place and to answer any
questions they may have.
>Post notification of your drug-free work place program. Give notice
well in advance of policy implementation.
Once you have planned, developed and implemented your Workers’ Compensation Carrier
Certified Drug-Free Workplace Program, you can complete and submit Form 09-1 (you may
obtain a copy of this form, at the back of this brochure, Appendix 1) to your insurance
carrier (do not send the application form to the Division of Workers’ Compensation) to
apply for your 5 percent credit on your workers’ compensation insurance premium.
If you are individually self-insured, your savings will be evident through reduced incidence
of accidents and a reduction in the premium calculations for assessments paid to the Workers’
Compensation Administration Trust Fund. For more information regarding assessment
reductions for individual self-insureds, please call the Division of Workers’ Compensation’s
Bureau of Monitoring and Audit at (850) 487-4899
An Employer is required to conduct the following types of Drug Tests under the
Florida Workers’ Compensation Drug-Free Workplace Program :
1. Job Applicant Testing. All final candidates for jobs (persons to whom you have
offered employment) must be tested, although they may begin work pending the results of
the drug test. Limited testing of applicants, based on a reasonable job classification basis, is
2. Reasonable Suspicion Testing. Drug tests must be conducted following any
observed behavior creating “reasonable suspicion.” These behaviors must be clearly defined
in the policy. Some examples of reasonable suspicion include:
*Direct observation of drug/alcohol use, or the symptoms of being under the
influence of a drug or alcohol.
*Abnormal behavior while at work or a significant deterioration in work
performance. Be certain that these behaviors are properly documented to avoid
any misunderstandings that may arise if this situation is contested by the
*A report of drug use, provided by a reliable and credible source.
*Evidence that an individual has tampered with a drug test while working for you.
*Information that an employee has caused, contributed to, or been involved in,
an accident while at work.
*Evidence that an employee has used, possessed, sold, or solicited drugs while
working or while on the employer’s premises or while operating the employer’s
vehicle, machinery or equipment. If the testing is conducted on a “reasonable
suspicion” basis, the employer must promptly record the circumstances which
formed the basis of the determination that reasonable suspicion existed to
warrant the testing. A copy of this documentation must be provided to the
employee on request, and the original documentation must be kept confidential
by the employer.
3. Follow-up Testing. If an employer requires an employee to enter an employee
assistance program, or a drug rehabilitation program, as a condition of continued
employment after a confirmed, positive drug test, the employer must require the
employee to submit to a random drug test, at least once per year for a two year period
after completion of the program. Advance notice of the testing date must not be given
to the employee being tested. If the employee voluntarily enters the program, the
employer has the option to not require follow-up testing.
4. Routine Fitness-For-Duty Testing. If you ordinarily require annual physical fitness
for duty examinations, these examinations must include drug testing.
*An employer may conduct “random testing” or any other legal types of testing of
IV. DRUG TESTING STANDARDS
If you have any questions concerning the technical aspects of drug testing, you may contact the
Florida Agency for Health Care Administration at (850) 487-3109.
V. EMPLOYER’S RIGHTS AND RESPONSIBILITIES
>Within 5 working days after receipt of a positive confirmed test result from the MRO, an
employer must inform the employee or job applicant in writing of the positive test result,
the consequences of the positive test result, and the employee’s available options.
> If the employee’s or job applicant’s explanation of the positive test result is unsatisfactory
to the employer, the employer must provide a written statement to the employee/job
applicant as to why the explanation was not satisfactory, along with the report of the
positive test result. This confidential information must be kept by the employer for at least
one (1) year.
>The employer must provide a copy of the test results to the employee/job applicant if the
employee/job applicant requests a copy.
>An employer may not discharge, discipline, refuse to hire, discriminate against, or request
or require rehabilitation of an employee/job applicant on the basis of a positive test result
that has not been verified by a confirmation test and by a MRO.
>An employer shall ensure that collection sites and laboratories use chain-of-custody
procedures as established by the Agency for Health Care Administration to ensure
proper record keeping, handling, labeling, and identification of all specimens tested.
>An employer must pay for all drug tests which the employer requires. An employee/job
applicant must pay for all drug tests not required by the employer.
>An employer may not discharge, discipline, or discriminate against an employee because
the employee has voluntarily come forth to seek treatment for a drug-related problem if
the employee has not previously tested positive for drug use.
>An employer is not required to pay the costs of treatment for an employee with a drug
related problem, unless they choose to do so. However, the employer may choose the
employee assistance program or rehabilitation center if the employer is paying the costs
for the employee’s participation.
>If drug testing is performed based on “reasonable suspicion,” the employer must outline
and detail in writing the circumstances surrounding the determination that this type of
testing is warranted. A copy must be provided to the employee upon request. The
original documentation must be kept by the employer for a period of at least one (1) year,
and must be kept confidential.
>All initial treatment and care provided by a health care provider to an injured employee
before workers’ compensation benefits are denied must be paid for by the carrier or
self-insured employer. However, the carrier/self-insured employer must give reasonable
notice to all affected health care providers that payment for treatment to the injured
employee after a certain date will be denied.
>An employee/job applicant whose drug test is confirmed as positive shall not be deemed
to have a “handicap” or “disability” based on the drug test results alone.
>Be sure that your policy contains necessary information written in clear, concise language
for your employees to understand.
>If an employee/job applicant refuses to submit to a drug test, the employer can discharge
or discipline the employee or refuse to hire the job applicant.
VI. EMPLOYEE’S RIGHTS AND RESPONSIBILITIES
>A drug test can be conducted only to determine “illegal” drug use. A person who tests
positive for a lawfully used prescription drug cannot be subject to discrimination.
>The employee’s right to challenge the results of a drug test must be spelled out in the
employer’s written policy.
>The employee has five (5) working days, after receiving written notification of the test
result, to contest or explain the results to the MRO. If the explanation is unsatisfactory to
the MRO, the MRO shall report a positive drug test result to the employer. The
employees and job applicants have a right to consult with the MRO for technical
information regarding prescription and/or nonprescription medications.
>An employer cannot ask job applicants what prescription drugs they may be taking
before making a conditional offer of employment.
>Every specimen that produces a positive test result must be preserved by the licensed or
certified laboratory that conducted the test for a period of at least 210 days after the
result of the test was mailed or otherwise delivered to the MRO. If the employee or job
applicant challenges the test result, the laboratory is to retain the sample until the case is
>It is the responsibility of the employee/job applicant to notify the laboratory of any
administrative or civil action pursuant to the law. This is important if the donor wishes to
contest the results.
>The policy must contain a statement regarding any applicable collective bargaining
agreement or contract and the right to appeal to the Public Employees Relations
Commission, or applicable court.
>The employee or job applicant has 180 days after receiving written notification of a
positive test result, and to have the sample retested at his or her expense at another licensed
or certified laboratory chosen by the employee or job applicant.
An employer is not required to allow an individual to submit a new sample for retesting.
VII. EDUCATION METHOD
>An important part of your Drug-Free Workplace Program for employees should include
education. How you inform employees of your policy and how you reinforce its message
are important in determining the program’s success. There are various methods by which
employers may provide education. Employers may provide education on drug abuse on
an annual basis.
VIII. MOST COMMONLY ASKED QUESTIONS AND ANSWERS
Q.: Will becoming a drug-free workplace save me money?
A.:Yes. In addition to the premium credits which you will receive, having a Workers’
Compensation Drug-Free Workplace Program will make your workplace safer,
resulting in fewer accidents, which may reduce your workers’ compensation costs.
Q.: Am I required to become a carrier certified drug-free workplace?
A.:No. Becoming a carrier certified drug-free work place is voluntary. However,
without the certification, you are not eligible for any of the benefits provided
under this program.
Q.: Under the Workers’ Compensation Drug-Free Workplace Program, can I
conduct random drug testing of my employees?
A.:Yes. In addition to the situations in which testing is mandatory, the law does not
prohibit an employer from conducting random testing or any other lawful testing of
Q.: Can I use a breathalyzer as a valid drug testing method?
A.:No. Under the Florida Workers’ Compensation Drug-Free Workplace Program,
the use of breathalyzers are not valid testing methods for initial or
Q.: What if an employee refuses to take a drug test?
A.:If an injured employee refuses to submit to a test for drugs or alcohol, the
employee may forfeit eligibility for medical and indemnity benefits, if this sanction
is contained within the employer’s written policy. If an employee or job applicant
refuses to submit to a drug test, the employer is permitted to discharge or discipline
the employee or may refuse to hire the applicant (if specified in the written
Drug-free Workplace Policy), since by law, refusal to submit to a drug test is
presumed to be a positive test result.
Q.: If a terminated employee files for Unemployment Compensation, may I inform
the adjudicator that the employee was terminated as a result of a positive drug
A.:Yes. The employer is not breaching confidentiality since the adjudication process is
confidential. However, if the employee appeals the adjudicator’s decision and the case is
remanded to an Appeals Referee, the postive test result is no longer confidential and becomes
part of the official record.
Q.: Can I post the results of my employees’ drug tests?
A.:No. All information, interviews, reports, statements, memoranda and drug test
results, written or otherwise, received by the employer through a drug testing
program are confidential.
Q.: Am I responsible for payment for services when my employee participates in an
Employee Assistance program (EAP)?
A.:No, you are not. However, if you choose to do so, you have the right to choose the
facility providing treatment. Remember also, if an employee does participate in an
Employee Assistance Program, you, the employer, are required to extend the same
considerations as reflected under the federal guidelines established for The
Americans with Disabilities Act and The Family and Medical Leave Act.
Q.: How many days does the employee have to re-test the specimen, if he or she
wishes to contest the positive test results?
A.:During the 180 day period after written notification of a positive test result, the
employee who has provided the specimen shall be permitted by the employer to
have a portion of the specimen retested, at the employee’s expense, at a licensed or
certified laboratory of his or her choice.
Q.: Where may I obtain a listing of approved Employee Assistance Programs for my
A.:The Florida Alcohol and Drug Abuse Association, Inc. publishes a directory
designed to provide reference to program listings and services (Please see Section
10 “Imporant Phone Numbers” for more detailed information).
Q.: Who pays for the drug tests?
A.:The employer is responsible for payment of all drug tests they may require.
If an employee wishes to have the specimen retested, it will be at the
employee’s expense. In cases where the insurance carrier uses the positive test result to
determine eligibility for workers’ compensation benefits, the carrier will pay for the test.
Q.: What evidence should I take to an unemployment compensation hearing?
A.:The original and two copies of the following documents:
1.The laboratory report of the drug test results and chain of custody forms.
2.Documentary proof of qualification for the workers’ compensation insurance
discount as approved by the insurance carrier or the Division of Workers’
Compensation’s Self-Insurance Section. In the absence of these documents,
an employer may arrange to call a qualified representative from the testing
laboratory as a witness. Other helpful witnesses would include anyone who
saw the worker using drugs or anyone to whom the worker admitted using
Chain of Custody
refers to the methodology of tracking specified materials or
substances for the purpose of maintaining control and accountability
from initial collection to final disposition for all such materials or
substances and providing for accountability at each stage in
handling, testing, and storing specimens and reporting test results.
a second analytical procedure used to identify the presence of a
specific drug or metabolite in a specimen. This test must be different
in scientific principle from that of the initial test procedure and must
be capable of providing valid test results. This test is required
before a medical review officer contacts the injured worker about
alcohol, including a distilled spirit, wine, a malt beverage, or an
intoxicating liquor; an amphetamine; a cannabinoid; cocaine;
phencyclidine (PCP); a hallucinogen; methaqualone; an opiate; a
barbiturate; a benzodiazepine; a synthetic narcotic; a designer drug;
or a metabolite of any of the substances listed above. An employer
may test an individual for any or all such drugs.
Drug Rehabilitation Program
a service provider that provides confidential, timely, and expert
identification, assessment, and resolution of employee drug abuse.
any chemical, biological, or physical instrumental analysis
administered by a laboratory licensed by the Agency for Health
Care Administration or certified by the U.S. Department of Health
and Human Services, for the purpose of determining the presence
or absence of a drug or its metabolites.
any person who works for salary, wages, or other remuneration for
Program an established program capable of providing expert assessment of
employee personal concerns; confidential and timely identification
services with regard to employee drug abuse; referrals of
employees for appropriate diagnosis, treatment, and assistance; and
follow-up services for employees who participate in the program or
require monitoring after returning to work.
a person or entity that employs a person and that is covered by the
Workers’ Compensation Law.
Initial Drug Test
a sensitive, rapid, and reliable procedure used to identify negative
and positive specimens, usually using a chemical procedure or a
more accurate scientifically accepted method approved by the
United States Food and Drug Administration or the Agency for
Health Care Administration.
a person who has applied for a position with an employer, and has
been offered employment conditioned upon successfully passing a
drug test, and may have begun work pending the results of the drug
test. For a public employer, “job applicant” is a person who has
applied for a special-risk or safety-sensitive position.
a licensed physician, qualified under section 59A-24.008(1)(a)-(e),
F.A.C., who evaluates a donor’s test result, together with his or her
medical history or any other biomedical information, and makes the
final determination of the donor’s test results.
a drug or medication obtained pursuant to a prescription, or a
medication that is authorized pursuant to federal or state law for
general distribution and use without a prescription in the treatment
of human diseases, ailments, or injuries.
any agency within state, county, or municipal government that
employs individuals for a salary, wages, or other remuneration.
drug testing based on a belief that an employee is using or has used
drugs in violation of the employer’s policy. The reasons for
“reasonable suspicion” testing must be clearly defined in the employer’s Drug-Free
Workplace policy. “Reasonable Suspicion” may include the following:
1.Observable phenomena while at work, such as direct
observation of drug use or of the physical symptoms or
manifestations of being under the influence of a drug.
2.Abnormal conduct or unpredictable behavior while at work
or a significant deterioration in work performance.
3.A report of drug use, provided by a reliable and credible
4.Evidence that an individual has tampered with a drug test
during his employment with the current employer.
5.Information that an employee has caused, or contributed to,
or been involved in an accident while at work.
6.Evidence that an employee has used, possessed, sold,
solicited, or transferred drugs while working or while on the
employer’s premises or while operating the employer’s
vehicle, machinery, or equipment.
with respect to a public employer, a position in which a drug
impairment constitutes an immediate and direct threat to public
health or safety; or such position that requires the employee to
carry a firearm, perform life-threatening procedures, work with
confidential information or documents pertaining to criminal
investigations, or work with controlled substances; a position
subject to s. 110.1127, Florida Statutes; or a position in which a momentary lapse in
attention could result in injury or death to another person.
with respect to a public employer, a position that is required to be
filled by a person who is certified under Chapter 633 or Chapter
943, Florida Statutes.
tissue, hair, or a product of the human body capable of revealing
the presence of drugs or their metabolites, as approved by the
United States Food and Drug Administration or the Agency for
Health Care Administration.
X. IMPORTANT PHONE NUMBERS
CSAP Workplace Helpline 1-800-WORKPLACE 1-800-967-5752
This Center for Substance Abuse Prevention’s toll free service operates from 9:00 a.m.- 8:00
p.m. EST. Technical assistance is available for business owners, managers, and union leaders on
the development and implementation of comprehensive drug-free workplace programs.
National Clearinghouse for Alcohol and Drug Information 1-800-729-6686
This toll-free service has information available on all aspects of substance abuse, from
prevention materials and videos to specific program guidelines and resources within your state.
Many publications offered are free from the Clearinghouse.
Drug Information Hotline 1-800-662-4357
Employee Assistance Professionals Association (EAPA) (703) 522-6272
EAPA provides information on how to select EAP’s, and the value they can provide.
AIDS Treatment Information Service 1-800-448-0440
Al-Anon/Alateen Family Groups 1-800-356-9996
Alateen (212) 302-7240
Alcoholics Anonymous 1-800-252-6465
American Council on Alcoholism Helpline 1-800-527-5344
800 Cocaine – (Information and Referral Hotline) 1-800-COCAINE
MADD (Mothers Against Drunk Driving) (214) 744-6233
Nar-Anon Family Group Headquarters (310) 547-5800
Narcotics Anonymous (818) 773-9999
National Council on Alcoholism and Drug Dependency 1-800-NCA-CALL
Partnership for a Drug-Free America (212) 922-1560
Drug/Alcohol Abuse Helpline (24 Hours) 1-800-362-2644
Drug Abuse Alcoholism & Cocaine (Toll Free) 1-800-333-4444
Drug/Alcohol Abuse & Information (24 Hour Emergency Service) (850) 487-2930
Drug/Alcohol Abuse (24 Hour Crisis line & Treatment) 1-800-283-2600
Florida AIDS Hotline 1-800-352-2437
For information regarding drug testing standards, procedures, laboratory certification,
qualifications of Medical Review Officers, collection sites, please call:
The Agency for Health Care Administration…………………………………………. (850) 487-3109
For information and questions regarding the State of Florida’s,
Workers’ Compensation Drug-Free Workplace Program,
The Division of Workers’ Compensation, Customer Service Center
………………………………………………………………………………………………………………. (850) 413-1601
For information and questions regarding Unemployment Compensation Hearings,
The Division of Unemployment Compensation, Bureau of Appeals………….(850) 921-3511
For additional copies of the application form 09-1, please call:
Your insurance carrier,
The Division of Workers’ Compensation, Customer Service Center Section
……………………………………………………………………………………………………………… (850) 413-1601
For a listing of Employee Assistance Programs and Drug
Rehabilitation Programs in your area, you may:
Check the local listings in your Telephone Directory,
Contact your County Health Department,
Call your local Chamber of Commerce, or
Obtain a Directory of Programs from the Florida
Alcohol and Drug Abuse Association, Inc. (for prices call)………………..(850) 878-2196