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A federal appeals court has struck down portions of an executive order by Florida Gov. Rick Scott (R) that mandated random drug testing of the state’s 85,000 employees. The U.S. Court of Appeals for the 11th Circuit ruled that requiring random, suspicionless drug testing violated the workers’ right to protection from unreasonable searches guaranteed by the Fourth Amendment of the U.S. Constitution (AFSCME Council 79 v. Scott, 11th Cir., No. 12-12908, 5/29/13). The appellate court, however, stipulated that testing on a job-by-job basis was constitutional.
In addition, the appeals court vacated an injunction issued by the U.S. District Court for the Southern District of Florida that had blocked the governor’s executive order from moving forward, stating that the injunctive “relief swept too broadly … without examining the specific job categories to be tested.”
Stanley Marcus, a judge for the appeals court, wrote, “What the Supreme Court’s case law requires is that the trial court balance the governmental interests in a suspicionless search against each particular job category’s expectation of privacy.”
Marcus said safety-sensitive employees, such as “law enforcement personnel who carry firearms, as well as employees tasked with operating heavy machinery or large vehicles,” may be given drug tests without individualized suspicion.
The 11th Circuit Court’s decision sends the case back to the district court for further consideration.
In March 2011, Scott signed an order mandating random drug testing of all employees of state agencies within his control and pre-employment drug testing of all job applicants.
The drug-testing program was suspended for all workers except for those employed by the Department of Corrections when the American Federation of State, County and Municipal Employees (AFSCME) and the American Civil Liberties Union filed a lawsuit to block the program from taking effect.
In a 2012 ruling, U.S. District Judge Ursula Ungaro struck down Scott’s executive order, saying that random drug tests of the state’s workers violated the Fourth Amendment. The governor’s office appealed the decision, arguing that “state employees possessed a diminished privacy interest.”
Not wanting to sort out who should be covered by the policy, the appeals court sent the issue back to the lower court for further review. The appeals court also ruled that Scott’s administration was responsible for identifying the jobs that can and cannot require testing.
After the ruling, Scott insisted his office would continue to argue that all state workers should be tested for drug use.
“Many Floridians are required to take drug tests in their workplace, and it is only right for state workers paid with taxpayer funds to be required to do the same,” the governor said in a written statement.
The AFSCME conceded that the Fourth Amendment allows drug testing of state employees in safety-sensitive positions, but it was pleased with the appellate court ruling.
“Governor Scott’s relentless quest for urine testing has once again been rejected by a federal court,” said Alma Gonzalez, a special counsel to the AFSCME, in a news release. “No matter how much Governor Scott wants people to believe otherwise, the fact remains that people don’t have to give up their privacy, dignity and constitutional protections in order to serve our communities.”
Roy Maurer is an online editor/manager for SHRM.
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