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Employers know that safe and productive business practices require a drug-free workforce. Taking steps to maintain a safe workforce also keeps you in compliance with Florida law.

Federal and Florida law require drug testing for some employees. Florida drug test laws also give employees certain privacy rights. Here, we give an overview of what you need to know about legally drug testing your employees.

Federal Drug Testing Laws

Federal law, under the Federal Drug Free Workplace Program, requires or recommends drug testing in these safety-sensitive positions:

  • Employees who carry firearms,
  • Transportation employees who carry passengers,
  • Flight crew members,
  • Air traffic controllers,
  • Railroad operating crews,
  • Law enforcement personnel,
  • Drug rehabilitation employees, and
  • People requiring higher security clearance.

Federal employers can consult the Federal Drug Free Workplace Program or an experienced employment lawyer for guidance on other positions to include in random Florida drug testing programs.

Florida Drug Testing Laws

Florida participates in the drug free workplace program. This program allows Florida employers to access reduced workers’ compensation premiums. To qualify for these discounted rates, an employer must follow state regulations and file a form with the state that certifies their participation.

Florida employers have no legal duty to test employees for drugs. However, Florida law says that employers may conduct drug tests for these reasons:

  • Job applicant testing,
  • Fitness for duty testing,
  • Upon return from a drug rehabilitation program,
  • Random testing, or 
  • Reasonable suspicion drug testing. 

Florida law defines reasonable suspicion as “based on a belief that an employee is using or has used drugs in violation of the employer’s policy.” Reasonable suspicion drug testing can be required by a supervisor at least two levels higher than the employee.

Reasonable Suspicion Florida Drug Testing

An employer can base reasonable suspicion drug testing on these factors:

  • Direct observation of drug use;
  • Observation that an employee seems to be under the influence of drugs;
  • A corroborated report of drug use from a reliable source;
  • An employee causing or contributing to a workplace accident;
  • Evidence that an employee has tampered with a drug test at work; and
  • Evidence that an employee has used, sold, or possessed drugs at work.

If an employer conducts a test based on reasonable suspicion, they must provide a written account of the circumstances that caused them to suspect the employee of drug use.

The employer must keep this information confidential and give a copy of this documentation to the employee upon request.

Random Drug Testing

Employers may also conduct random drug testing for all employees. For random drug testing, an employer must:

  • Use an independent third party to select a computer-generated sample of employees; 
  • Test a selected group that represents no more than 10% of total employees; and 
  • Conduct random testing no more than once every three months.

If a random drug test is positive, the employer must inform the employee in writing within five working days. The employer should also inform the employee of the consequences of the positive test as well as employee options.

Medical Marijuana Drug Testing

Note that medical marijuana falls into a gray area of drug law. Federal law still states that marijuana is illegal to use or possess. However, Florida is among the 33 states that have legalized medical marijuana. Therefore, states can decide the consequences for medical marijuana usage at most jobs. 

New Florida drug testing laws like the medical marijuana exception require companies to stay updated on current legislation.

While Florida drug testing laws may allow medical marijuana, federal laws sometimes rule. Employees subject to federal regulations, such as CDL drivers, must follow federal guidelines that prohibit marijuana use.

Establishing a Drug Testing Program

When you establish company drug testing, Florida law requires protocols to protect employees. Before you establish a drug testing program at your company, take these steps:

  • Give employees 60 days notice that you are starting a drug testing program;
  • Give employees a written statement describing the company’s drug-use policy, testing requirements, and drug-use consequences; 
  • Give employees written notification of confidential prescription drug notification procedures and the names of prescription drugs that may alter a drug test;
  • Give employees written notification of confidentiality policies, consequences of refusing a drug test, and the procedure for challenging a positive drug test; and
  • Provide employees with names and contact information for alcohol and drug rehabilitation programs.

The employer should also post the company’s drug testing policy at a conspicuous place at the workplace. Once the employer has established a drug testing program, the employer does not need to give an employee 60 days notice before a drug test.

Need Legal Assistance with Florida Drug Testing Laws?

Drug testing programs involve a complicated mix of federal and state law. If you’re confused about how to handle a particular situation, we can help.

Emmanuel Sheppard & Condon keeps up with new Florida drug testing laws so that our clients can stay in compliance. Our attorneys help Florida employers design and implement drug testing programs that comply with federal and state law. 

Contact Emmanuel Sheppard & Condon for help developing a drug testing policy or for guidance on Florida drug testing laws.

Our knowledgeable attorneys are available to develop policies and procedures, train managers, and litigate civil and administrative law claims. Contact us today for assistance with drug testing legal concerns.  

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