Many employers utilize a drug free workplace program to enhance the quality and safety of their businesses. Some businesses, largely in the transportation industry, are required by both federal and state laws to drug test their employees. Other businesses drug test their employees in order to take advantage of statutorily based insurance discounts for workers compensation and other employer risks. Finally, some employers drug test as a matter of corporate policy. If you are fired for testing positive to a drug test that was improperly conducted you have rights and in many cases the termination may be considered wrongful by state or federal statute. In addition, you may have a cause of action in various scenarios against your employer and those who performed the testing.
DOT Testing and Protection.
In the state of Florida, many employers participating in the a drug free workplace program do so under the Federal Department of Transportation requirement, codified under the Omnibus Transportation Employee Testing Act of 1991, and described in detail by 49 Code of Federal Regulations (CFR) Part 40. Employees drug tested per these requirements are protected by the procedures established in these rules and regulations by the Department of Transportation. These protections include but are not limited to:
- With rare exception, only a DOT test may be performed on a DOT specimen.
- Collection personnel must meet the requirements of 49 CFR Part 40 Subpart C.
- A proper Custody and Control Form must be used in connection with collection of a specimen, but this may be corrected by the Medical Review Officer.
- The specimen must be prepared and secured by the collector in the presence of the employee. The employee then must initial the sample on the tamper evident seal for the purpose of certifying that the bottles contain the sample provided.
- A positive initial result must be confirmed by a confirmation test.
- A Medical Review Officer must verify a confirmed, positive result. The medical review officer must attempt to contact the employee and have a direct face to face or telephone conference regarding the positive result and any medical explanation offered by the employee for a positive result, including other medications prescribed to the employee. A staff member may make an appointment for the conversation and must advice the employee of the consequences of not discussing a result with the Medical Review Officer. A staff member may not collect medical information.
- An employer is prohibited from standing down an employee after a positive test result occurs but before the test is confirmed, unless a waiver is secured from the DOT. This waiver will not be granted unless a policy is in place to protect the employee during the verification period, especially in that pay and employment status may not be affected.
- The results of a drug test are confidential except with the exception of certain disclosures permitted by DOT regulations, including the filing of a lawsuit by the employee for wrongful termination, or a lawsuit filed against the company where the employee's drug testing results is determined to be relevant to the action as determined by the Court. The disclosure is to be protected by a stipulation that the information will only be available to the decision maker and the parties to the proceeding.
From the perspective of the employee, a defamation claim may be actionable in the case of unprivileged publication of the results of an invalid drug test. Additionally, a breach of contract action may be pursuable by a discharged employee in certain cases. See Eastern Associated Coal Corp. v. United Mine Workers of America, District 17, 531 U.S. 57, (2000). In addition, an employer relaying false information regarding an employee's drug test which the employer knows or has reason to know may be false or unreliable may be liable for tortiously interfering with the future business relationships of that employee. Finally, a negligence action may be pursued against parties who handle the drug testing. Fifie v. Cooksey, 403 F.Supp.2d 113, 1140 (M.D. Fla. 2005) (permitting a negligence action against a Medical Review Officer for negligent reporting of drug test results) ("although the DOT has stated the regulations do not create a private right of action, it also specifically has provided that employees do not have to waive negligence actions against those handling the required drug testing samples. Thus, preemption cannot be found from the DOT or FRA regulations").
440.102 Drug Free Workplace Program Testing and Protection
The protections offered by the State of Florida in section 440.102 of the Florida Statutes pertain to employers who implement a drug free workplace in order to receive workers compensation insurance discounts pursuant to Statute section 627.0915. The procedural safeguards offered to employees by this statute differ from those offered by the DOT regulations. The Florida Drug Free Workplace Program safeguards include, but are not limited to:
Providing employees with written notice prior to testing of
- the employer's policy on employee drug use, identifying the types of drug tests, actions taken against employees who have a positive confirmed result,
- the existence of section 440.102,
- confidentiality of the results,
- procedures for reporting to a medical review officer the use of prescription and non prescription drugs both before and after being tested,
- a list of common medications which may alter or affect a drug test,
- consequences of refusing to submit to a drug test,
- employee and addiction assistance programs,
- a statement that an employee n employee or job applicant who receives a positive confirmed test result may contest or explain the result to the medical review officer within 5 working days after receiving written notification of the test result; that if an employee's or job applicant's explanation or challenge is unsatisfactory to the medical review officer, the medical review officer shall report a positive test result back to the employer; and that a person may contest the drug test result pursuant to law or to rules adopted by the Agency for Health Care Administration,
- a statement advising the employee of his or her responsibility to notify the laboratory of any administrative or civil action brought under section 440.102,
- a statement of drugs to be tested for,
- a statement regarding any applicable contracts or collective bargaining agreement that the employee is subject to and the right to an appeal to the Public Employee Relations Commission or applicable court, and
- a statement notifying the employee of their right to consult with a medical review officer for technical information regarding prescription and nonprescription information.
Following procedural safeguards which require
- Respect for employee privacy
- Proper documentation and labeling to preclude the likelihood of erroneous identification of test results
- Provision of a form for the employee to provide any information the employee considers relevant to the test, with notice of the most common medications which may alter a drug test; this form must be taken into account in interpreting a positive confirmed test result
- Collection, storage and transportation of the specimen in a manner reasonably precluding contamination or adulteration
- An employer that performs drug testing or specimen collection to use chain-of-custody procedures established by the Agency for Health Care Administration to ensure proper recordkeeping, handling, labeling, and identification of all specimens tested.
- Collection only by medical professionals or qualified employees of a licensed or certified laboratory
- Collection of a sample large enough for two tests in the case of employee petitioned retesting
- Maintenance of the integrity of the chain of custody of the sample
- If a test result is initially positive, the test sham be confirmed using gas chromatography/mass spectrometry or an equivalent or more accurate scientifically accepted method approved by the Agency for Health Care Administration or the United States Food and Drug Administration as such technology becomes available in a cost-effective form by a licensed or certified laboratory.
- If an initial drug test of an employee or job applicant is confirmed as positive, the employer's medical review officer shall provide technical assistance to the employer and to the employee or job applicant for the purpose of interpreting the test result to determine whether the result could have been caused by prescription or nonprescription medication taken by the employee or job applicant.
- An employer not to discharge, discipline, refuse to hire, discriminate against, or request or require rehabilitation of an employee or job applicant on the sole basis of a positive test result that has not been verified by a confirmation test and by a medical review officer.
Providing a means to challenge a positive confirmed result
- Within 5 working days after receipt of a positive confirmed test result from the medical review officer, an employer shall inform an employee or job applicant in writing of such positive test result, the consequences of such results, and the options available to the employee or job applicant. The employer shall provide to the employee or job applicant, upon request, a copy of the test results.
- Within 5 working days after receiving notice of a positive confirmed test result, an employee or job applicant may submit information to the employer explaining or contesting the test result, and explaining why the result does not constitute a violation of the employer's policy.
- The employee's or job applicant's explanation or challenge of the positive test result is unsatisfactory to the employer, a written explanation as to why the employee's or job applicant's explanation is unsatisfactory, along with the report of positive result, shall be provided by the employer to the employee or job applicant; and all such documentation shall be kept confidential by the employer and shall be retained by the employer for at least 1 year.
Other Protections:
- Confidentiality of drug test results, interviews, and reports related to the drug testing program, except for compelled disclosure in certain court proceedings or with the written consent of the tested employee
- Information on drug test result may not be used in any criminal proceeding against the employee
- Strict drug testing standards to be maintained by laboratories analyzing initial or confirmation tests, including a written procedure to ensure a proper chain of custody
Laguerre v. Palm Beach Newspapers Inc., 20 So.3d 392 (Fla.App. 4 th Dist. 2009) specifically suggests that section 440.101 and 440.102 of the Florida Statutes created a private right of action for aggrieved employees whose employers violate the Florida Drug Free Workplace Program policies as long as the employer participates in insurance discounts offered by section 627.0915. Additionally, state common law claims of negligent conduction of the test, or negligent relay of results may still be pursuable in certain cases, as well as defamation claims for unprivileged publication of test results or protected heath care information. In addition, an employer relaying false information regarding an employee's drug test which the employer knows or has reason to know may be false or unreliable may be liable for tortiously interfering with the future business relationships of that employee.
Public Employees and the Drug Free Workplace Act
Public employees are protected by Florida Statute Section 112.0455, which closely resembles Section 440.102. Differences lie in the disciplinary and non-disciplinary remedies available to the public employer, and issues of federal compliance conflicts.
Corporate Policy Drug Testing and Protection
Employees of companies which do not participate in DOT or Florida Statute Section 627.0915 may in many cases still rely on state common law claims discussed above, and the company may have to abide by such standards if the company has made overt indications to the employees that they participate in a statutory program. In addition it is important to note that despite testing positive for an initial drug test, an employee in many cases has unemployment benefit rights, as a positive result does not always correlate with the definition of "gross misconduct" for the purposes of denying employment benefits. See Thomas v. United Parcel Service, Inc., 864 So.2d 567 (Fla. 2d DCA 2004), and AAA Gold Coast Moving & Storage, 654 So.2d 281 (Fla. 4th DCA 1995).
