If your Florida employer or prospective employer has asked you to take a drug test, you’ll want to know your legal rights. Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, this area is regulated by state and local laws.
Like many other states, Florida has a drug-free workplace program regulating drug testing. Employers who establish such a program can qualify for a discount on their workers’ compensation insurance premiums. However, employers must follow the state’s rules to get their discount. Florida employers must test in certain circumstances, and must observe certain procedures intended to protect employee and applicant rights.
Rules for Florida Job Applicants
Florida employers who have a drug-free workplace program are required to drug test applicants who have received a conditional offer of employment. If an employer requires applicants to take a test, it must include a notice in its job announcements or ads regarding the testing requirement.
Rules for Florida Employees
Florida employers with a drug-free workplace program must test employees in the following circumstances:
- on reasonable suspicion of drug use (reasons for suspicion include observable phenomena, erratic or abnormal behavior, or a report of drug use)
- as part of a routinely scheduled fitness-for-duty medical examination, and
- after the employee returns to work following rehabilitation for a positive drug test. Testing is not required if the employee entered rehab voluntarily, rather than after a positive drug test.
In addition, employers may conduct random drug testing.
Notice and Procedural Rights for Employees
An employer that conducts drug testing must give its policy to employees in writing, and employees must have at least 60 days’ notice of the policy. Employees who test positive have five days to contest or explain the result. An employer may not take any adverse personnel action on the basis of an initial positive result that has not been verified by a confirmation test and a medical review officer. State laws also require employers to use certain procedures for gathering specimens, testing, maintaining confidentiality, and so on.
Employees who voluntarily seek treatment for substance abuse cannot be fired, disciplined, or discriminated against unless they have tested positive or been in treatment in the past.
Legal Claims Arising From Drug Testing
Have you been illegally asked or required to take a drug test? Even though Florida law allows employer to drug test, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used. Here are some examples:
- Violation of state laws and procedures. Although an employer has the legal right to test, it must follow the state’s requirements. A Florida employer that doesn’t provide the required notice of its testing policy or observe state procedural rights (for example, by failing to conduct a confirmation test after an initial positive result) could face legal problems.
- Disability discrimination. An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable.
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender –for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that is allowed or required to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, if the employer has reason to know that the test might not be accurate. For example, if a retest showed that the first test was a false positive or the employee has appealed the first test, the employer may be liable for revealing the results of the positive test beyond those with a need to know.