Florida employers can usually fire employees for failing a drug test, but there are details and context that apply. Florida law plays a big role, especially in the concept of at-will employment. Individual company rules are also very important.
Let’s break down what this means for employees in Florida.
Understanding At-Will Employment in Florida
Florida is an at-will employment state, which means that an employer generally can end your job at any time, for almost any reason, or even for no reason at all.
There are some limits to this rule. An employer can’t fire you for an illegal reason. Illegal reasons include discrimination based on your race, color, religion, sex, national origin, age, disability, or marital status.
Firing you for taking legally protected time off, like for jury duty or certain family medical leave, is also illegal.
But, failing a drug test is usually not considered an illegal reason for firing someone in Florida.
Does the Type of Drug Test Matter?
Employers in Florida might ask you to take a drug test in several different situations. Generally, failing a test in any of these situations can lead to termination.
Pre-employment testing is very common and happens after a company offers you a job, but before you actually start working. The job offer is usually conditional, meaning you only get the job if you pass the test.
If you fail a pre-employment drug screen, the company can legally withdraw the job offer.
Random testing involves selecting employees for testing without any specific reason or suspicion. Employers who do random testing usually need a clear, written policy explaining how the process works and that it truly is random.
Reasonable suspicion testing happens when an employer has a specific, observable reason to believe an employee might be under the influence of drugs at work. This could be based on things like slurred speech, unsteady movement, strange behavior, or the smell of substances.
Post-accident testing often occurs after a workplace accident. The test aims to determine whether drug use contributed to the incident. Company policies usually state when post-accident testing is required.
Regardless of when the test happens, a positive result can put your job at risk if the employer has a policy against drug use.
The Importance of Your Company’s Drug Policy
While Florida law generally allows firing for a failed drug test, your specific employer’s policy may play a role. Employers should have a clear, written drug testing policy that is given to all employees.
This policy should explain:
- Why the company conducts drug tests
- Who can be tested and when (pre-employment, random, reasonable suspicion, post-accident)
- What substances are being tested for
- What happens if an employee tests positive
- Information about the testing procedure, including confirmation tests
You should carefully read your employee handbook or any separate drug policy documents your employer gave you.
Does the policy clearly state that failing a drug test can result in termination? Does it mention any chance for explanation or re-testing? Does it outline a specific procedure the company must follow?
Sometimes, an employer might not follow their own stated policy. If they don’t follow the correct procedure outlined in their handbook, it might create an issue, but it doesn’t automatically make the firing illegal in an at-will state like Florida.
However, inconsistencies in applying the policy could potentially be used to argue that the firing was unfair or possibly discriminatory if it seemed targeted.
Florida’s Drug-Free Workplace Program
Florida has a specific law that encourages employers to participate in the Drug-Free Workplace Program. Employers who follow the program’s rules can receive benefits, like a discount on their workers’ compensation insurance premiums.
To qualify for this program, employers must follow strict requirements. These include having a written policy, conducting certain types of testing, using licensed labs, and having an Employee Assistance Program (EAP) or providing resources for employees with drug problems.
Also, if you are fired for failing a drug test under a certified Drug-Free Workplace Program, you are typically disqualified from receiving unemployment benefits. This program gives employers a strong legal basis for terminating employees who fail drug tests.
What About Medical Marijuana in Florida?
In 2016, Florida voters approved a constitutional amendment allowing the use of marijuana for medical purposes for people with certain qualifying conditions. Many people wonder if having a medical marijuana card protects their job if they test positive for marijuana.
The answer right now is generally no. The Florida medical marijuana amendment did not include protections for employees in the workplace.
Are There Any Exceptions or Protections?
While the general rule is that you can be fired, there might be some limited situations or arguments to consider, though they can be complex:
- Illegal discrimination: If you believe the drug test was used as an excuse (a pretext) to fire you because of your race, religion, gender, age, disability, or another protected characteristic, that could be illegal.
- Disability considerations: The Americans with Disabilities Act (ADA) is a federal law that protects qualified individuals with disabilities. While the ADA doesn’t protect current illegal drug use, it can be complicated. If someone is in recovery from past drug addiction and is no longer using drugs illegally, they might have some protections. However, testing positive on a current drug test usually removes ADA protection related to the drug use itself.
- Procedural errors: Did the employer follow their own policy? Was the test conducted correctly by a licensed lab? Did you have an opportunity for a confirmation test (usually standard practice)?
- False positives: Drug tests are not always 100% accurate, although lab-based tests with confirmation steps are generally reliable. Certain foods or legally prescribed medications can sometimes cause an initial false positive result on some types of tests.
What Usually Happens After a Failed Drug Test?
If you fail a drug test, a lab representative or a Medical Review Officer (MRO) might contact you first, especially if the result could be due to a prescription medication.
If there’s no valid explanation, the MRO will likely report the positive result to your employer. Your employer (often Human Resources) will then likely schedule a meeting with you to inform you of the positive test result and the company’s decision regarding your employment.
Some company policies might allow you to provide an explanation or context, but often, especially under a strict drug-free policy or the state’s Drug-Free Workplace Program, a confirmed positive result leads directly to termination.
Some policies might allow for a re-test at your own expense, but this is not always the case.
Losing Your Job and Unemployment Benefits
In Florida, eligibility for unemployment benefits depends on the reason you lost your job. To qualify, you must have lost your job through no fault of your own.
Under Florida unemployment law, failing a drug test is usually considered misconduct. Being fired for misconduct generally disqualifies you from receiving unemployment benefits.
This is because the state views the failed test as a result of your own actions, violating the employer’s reasonable policies.
What Should You Do If You Fail a Test in Florida?
If you find yourself in this difficult situation, here are a few practical things to consider:
- Get your company’s policy: If you don’t already have it, try to get a copy of the official written drug testing policy. Read it very carefully, especially about testing procedures and consequences.
- Ask about the details: Find out what substance you tested positive for and determine that a confirmation test was performed.
- Unemployment application: You can still apply for unemployment benefits even if you think you might be disqualified. Provide truthful information in your application, and let the DEO make the official determination.
- Consider legal advice: If you believe your firing was genuinely unlawful (perhaps due to discrimination or major errors in the process inconsistent with policy), contact a Florida wrongful termination lawyer. They can listen to the details of your situation and tell you if you might have a legal claim.
Frequently Asked Questions About Failed Drug Tests in Florida
Here are five frequently asked questions about failing a drug test and employment in Florida.
Is It Really Legal for My Boss To Fire Me Just for Failing a Drug Test in Florida?
Yes, in most cases, it’s legal for an employer in Florida to fire you for failing a drug test. Florida is an at-will employment state, which means your employer can generally end your job for almost any reason, as long as it’s not illegal, like discrimination based on race or religion.
Failing a drug test is usually seen as a valid reason, often because it violates company policy or raises safety concerns. Many employers have written policies stating that a failed drug test can lead to termination.
I Have a Medical Marijuana Card in Florida. Does That Protect My Job if I Test Positive?
Currently, having a Florida medical marijuana card does not protect your job if you test positive for marijuana on an employment drug test. The Florida constitutional amendment that allows medical marijuana didn’t include specific protections for employees in the workplace.
Employers can still enforce their drug-free workplace policies, meaning they can choose not to hire or decide to fire someone for testing positive for marijuana, even with a medical card.
If I Get Fired for Failing a Drug Test, Can I Still Get Unemployment Money?
It’s unlikely that you’ll receive unemployment benefits if you’re fired for failing a drug test in Florida. To get unemployment benefits, you must lose your job through no fault of your own.
Failing an employer-required drug test is usually considered misconduct. Florida law generally disqualifies people from receiving benefits if they’re fired for misconduct.
You can still apply, but you should be prepared for the claim to be denied.
What Are My Rights if I Fail a Drug Test at Work in Florida?
Your rights in this situation are somewhat limited because Florida is an at-will state. However, you generally have the right to expect your employer to follow their own written drug testing policy, if they have one.
You also have a right to expect the testing process to be reasonably accurate; this usually includes a lab confirmation test to rule out initial false positives.
Some company policies might give you a chance to explain the result, especially if a prescribed medication caused it, often through a Medical Review Officer.
Your main legal protections would be against illegal discrimination (like being singled out for testing because of your race) or if the employer significantly violated their own stated procedures in a way that harmed you.
If you believe something illegal occurred, contact a Florida employment lawyer.
Can a Company Refuse To Hire Me if I Fail Their Pre-Employment Drug Test?
Yes, a company in Florida can absolutely refuse to hire you if you fail a pre-employment drug test. When a company makes a job offer, it’s often conditional, meaning you must meet certain requirements before starting the job. Passing a drug test is a very common requirement.
If you fail the test, the company has the legal right to withdraw the job offer. This applies even if the substance detected was marijuana and you have a medical marijuana card.
Facing the Reality of a Failed Drug Test in Florida
Florida’s at-will employment status gives employers broad power to terminate employment, and failing a drug test is generally considered a valid, legal reason for firing.
Company policies are key, and employers participating in Florida’s Drug-Free Workplace Program have clear backing to fire employees who test positive.
If you feel something was fundamentally unfair or potentially illegal about the process, seek advice from a Florida employment lawyer. Call Brenton Legal today at (954) 519-3065 for a confidential case evaluation, or contact us online.
Ryan Brenton
Ryan Brenton, the founding partner of Brenton Legal PA, is a distinguished employment lawyer with a profound experience in a variety of employment disputes. His practice encompasses complex litigation, wage and hour class action cases, and discrimination, harassment, and retaliation claims. Representing a diverse clientele, from minimum wage workers to executives, Ryan has successfully argued cases in both state and federal courts, as well as in administrative proceedings. His legal acumen has earned him a national reputation and respect from clients and peers alike. A graduate of Nova Southeastern University, Shepard Broad Law Center, and holding a B.S. in Economics from Florida Atlantic University, Ryan's legal prowess is underpinned by a solid educational foundation. His commitment to justice and fairness in the workplace marks him as a trusted advocate in the field of employment law.
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