Attorneys

• John E. Lyncheski

Related Practices

• Labor and Employment

Florida’s Workers’ Compensation Statute contains employer-friendly provisions concerning substance abuse testing with which all Florida employers should become familiar and which they should consider using to their advantage.

The stated intent of the Drug-Free Workplace Program provisions of the Statute is to promote drug-free workplaces so that Florida private-sector employers can maximize their levels of productivity, enhance their competitive positions in the marketplace and achieve success without experiencing the costs, delays and tragedies associated with work-related accidents resulting from substance abuse by employees.  For employers who take advantage of the Act’s Drug-Free Workplace Program, it is the express legislative intent that their “employees who choose to engage in drug abuse will face the risk of unemployment and the forfeiture of workers’ compensation benefits.”

Florida employers, except for certain contractors regulated by or doing business with the State, do not have a legal obligation to adopt a Drug-Free Workplace Program, but it is very much to their advantage to do so.

Perhaps most importantly, employers who properly implement and follow a Drug-Free Workplace Program pursuant to the Statute are eligible for discounts on their workers’ compensation insurance coverage and can deny medical and indemnity benefits to an employee whose work-related injury is attributable to substance abuse.

Florida employers who implement a Drug-Free Workplace Program which complies with the Statute are required to test job applicants offered employment, conduct “reasonable-suspicion” drug testing (the Statute defines what constitutes “reasonable-suspicion”), test as part of fitness for duty examinations and follow-up test employees who, in the course of employment, enter an employee assistance or rehabilitation program for a substance abuse problem.  Moreover, the Act specifically provides that a refusal by an applicant or employee to submit to a test administered pursuant to a Drug-Free Workplace Program can be treated the same as a positive result and, more specifically, provides that “an employer who discharges or disciplines an employee or refuses to hire a job applicant [under a Drug-Free Workplace Program which complies with the Law] is considered to have discharged, disciplined, or refused to hire for cause.”  For employers who take advantage of the Drug-Free Workplace Program provisions of the Workers’ Compensation Statute, this provision alone can be invaluable in defense of employment and wrongful discharge claims by applicants and employees whose negative personnel action involves some form of suspected or proven substance abuse.  The Law further affirmatively provides that an employee who tests positive in a screen administered pursuant to the Program shall not thereby be deemed to have a “handicap” or “disability” for purposes of federal, state and local discrimination laws.  (As an aside, employers should be aware that, although alcoholism may in certain circumstances be treated as an illness under the Americans with Disabilities Act and the Florida Civil Rights Act, current drug use is not cloaked with any similar type of protection.)  The Law expressly does not preclude private employers from conducting random testing or any other testing of employees for substance abuse, provided such testing is not otherwise specifically prescribed by some other provision of the law.  The Statute defines the term “drug” very broadly to include alcohol and other intoxicating beverages.

Thus, the benefits of the Statute, both direct and indirect, can be substantial and there are many incentives for a Florida employer to consider a Drug-Free Workplace Program which complies with the Workers’ Compensation Law.  Among the requirements for a Drug-Free Workplace Program to qualify the employer for the benefits of the Law are notice to employees, a policy, education, compliance with procedural requirements for testing for drugs and/or alcohol, confirmation testing of a positive result, use of a laboratory that meets the requirements of the Act, and meeting certain limited confidentiality standards.  There are other requirements as well, but they are not particularly onerous.

However, in the final analysis (no pun intended), the benefits of adopting a compliant Drug-Free Workplace Program far outweigh the relatively minimal burdens of the Statute.  The potential for avoiding claims by employees, both for workers’ compensation benefits and otherwise, is substantial and well worth the effort.  For the most part, the time and expense of adopting a Drug-Free Workplace Program which complies with the requirements of the Act is a one-time outlay which will continue to reap benefits over the long term.  If you are going to adopt a Program, you should exercise caution to do it right.  The Statute does contain a number of detailed requirements, but they are relatively clear-cut and easy enough to satisfy.  Implementing a Drug-Free Workplace Program which meets the requirements of Florida’s Workers’ Compensation Statute is well worthy of consideration by every employer that has not already done so.

For more information, please contact jlyncheski@cohenlaw.com