Employers participating in Florida’s Drug-Free Workplace (DFW) program must be careful to follow its strict guidelines or risk incurring workers’ compensation benefit liability.
In exchange for lower workers’ compensation premiums, Florida employers can agree to adopt the DFW program. Under the program, employers may begin testing employees 60 days after notifying them that the program is starting.
The program spells out rules for employers and also includes special protections for employees’ rights. Employers that stray too far may find they no longer qualify for the program’s benefits.
How DFW works
Employers must test all job applicants before hiring and may use an applicant’s refusal to be tested as a reason not to hire him or her. Employers also may conduct drug tests based on reasonable suspicions that employees are using drugs. Employees who behave oddly may be tested, but employers must document their reasons for testing.
Florida’s DFW also requires employers to routinely conduct fitness-for-duty examinations that include drug testing. If an employee enters anfor drug-related reasons or undergoes drug rehabilitation, the employer must perform follow-up testing once a year for two years. Follow-up testing must be done without warning to the employee. However, if the employee entered the program voluntarily, the employer may elect not to conduct follow-up testing. That decision won’t jeopardize the employer’s workers’ comp discount.
An employer may elect to test blood, urine or hair samples. The laboratory performing the test must collect enough samples for two tests. If the first test comes back positive for a controlled substance, the employee may request the other sample be tested to confirm the result. If the first test is negative, the employer may request a confirmation test.
Only laboratories certified to perform drug testing may administer the tests. Certified laboratories provide a medical review officer to oversee testing. The officer will review any positive tests to determine whether any legal drugs could have caused the positive results. An employer may not terminate an employee for a positive test unless the medical review officer has reviewed the test results and the confirmation test shows the same result. The employer must pay all the costs of employer-required drug testing.
Case study: What can go wrong
George Johnson drove a cement truck for Cemex. According to his testimony, he was in the vehicle on a dangerously narrow road when the truck’s computer malfunctioned. That caused the engine to rev and the cement drum to rotate at high speed. The vibration collapsed the roadway, and the truck rolled with Johnson inside.
Johnson was tested for drugs, and the results came back positive for marijuana. Cemex terminated him. Johnson denied using marijuana and requested a confirmation test. Cemex told him he would have to pay for it.
Johnson filed for workers’for the injuries he suffered. The employer claimed that his positive drug test meant he wasn’t eligible to receive benefits under DFW rules.
But the court noted that Cemex violated several rules itself. First, it terminated Johnson before a confirmation test had been run. Then, it erroneously told him he had to pay for the test. Thus, the court determined that Cemex was no longer a drug-free workplace and was not entitled to presume that a positive drug test made Johnson ineligible for benefits.
The court said Johnson’s explanation of the accident was plausible and that the accident could have happened whether or not he had been using marijuana. Cemex now risks losing its workers’ comp premium discount.
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