Jessica Polk

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Florida is known for its beaches, theme parks, wild spring breaks, and crazy news headlines.  Despite the COVID-19 pandemic’s negative impact on employment, Florida employers are hiring. According to the Department of Economic Opportunity, “Florida gained 1,700 private-sector jobs”[1] in January 2021 compared to December 2020.

As a voluntary drug testing state, this does not mean that the vacation destination is lax on their workplace policy. Following are five of the state’s drug-testing provisions of which employers should be aware:

1. Drug Testing Law Type: Voluntary. This means that companies that wish to qualify for a 5% discount on their workers’ compensation premiums must comply with the state’s voluntary drug testing law, which includes specific requirements about how and when to conduct drug testing. Companies not participating in the program are not required to comply with the voluntary law’s requirements.
2. Workers’/Unemployment Compensation Denial: According to Florida Statute 440.09 workplace injury caused by an individual who was intoxicated by drugs, barbiturates or other stimulates not prescribed by a doctor is not eligible for benefits.[2] Unemployment benefits are also nullified if a positive, confirmed drug test identifies drug use that led to discharge from employment.[3]
3. Marijuana Laws: Marijuana use for medicinal purposes is permitted in Florida. The law does not require accommodations for on-site use of medical marijuana in any place of employment.[4] At this time, recreational or adult-use marijuana is not permitted.
4. A Major Case Law Decision: In the case of Jones v. Grace Healthcare Ctr., the workers’ compensation court ruled that employers are not required to pay for or facilitate a workers’ obtainment of medical marijuana.[5]
5. How to Test: The voluntary drug testing law permits testing of blood, breath, urine, oral fluid/saliva, hair, body tissue, etc. The law also permits instant result or point of collection testing (POCT). Guidance refers to FDA-approved devices or those approved by the Florida Agency for Health Care Administration. The use of a Medical Review Officer (MRO) is required for positive test results.

The Current Consulting Group provides extensive information about laws in each state that affect workplace drug and alcohol testing at CurrentCompliance.org.  Learn how to subscribe here.

[1] Forrest Saunders. (2021). ‘New data shows Florida economy continues to improve. WPTV. March 15, 2021, Available at: https://www.wptv.com/rebound/new-data-shows-florida-economy-continues-to-improve. April 28, 2021.

[2] Florida Statute 440.09. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0440/Sections/0440.09.html. April 29, 2021.

[3] Florida Statute 443.101. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0443/Sections/0443.101.html. April 29, 2021.

[4] Current Compliance (2021) Available at: https://c.na115.visual.force.com/apex/StateSummary?id=a051500000X81vkAAB. April 28, 2021.

[5] State of Florida. April 9, 2021. https://www.jcc.state.fl.us/jccdocs20/LKL/Polk/2003/025539/03025539_229_04092019_09193174_i.pdf. May 30, 2021