Fla.: Governor, AFSCME Settle Dispute over Drug Testing of State Workers

By Rosemarie Lally Jun 9, 2015

A bitter dispute over the random drug testing of Florida state employees may finally end if an agreement reached April 20, 2015, between Gov. Rick Scott and the state’s largest public employee union is approved by a federal judge.

The argument stems from an executive order issued by Scott in 2011 that required state employees to submit to mandatory random urinalysis drug testing with no suspicion of wrongdoing. The order affected state workers in agencies under Scott’s authority, or roughly 77 percent of the state workforce.

The American Federation of State, County and Municipal Employees (AFSCME), which represents 34,000 of the workers potentially affected, challenged the order in federal court. Represented by the American Civil Liberties Union, AFSCME argued that the drug testing policy was unconstitutional as it applied to employees who did not hold safety-sensitive jobs.

Stating that the order violated the U.S. Constitution’s Fourth Amendment, the ACLU contended that, minus suspicion of drug use or a threat to public safety, individuals cannot be required to sacrifice their constitutional rights simply to work for the state.

The executive order was enjoined in April 2012 by a federal district court, which ruled that requiring state employees to submit to baseless searches violated the Fourth Amendment’s ban on unreasonable searches. On appeal, the U.S. Appeals Court for the 11th Circuit rejected Florida’s assertion that it could enforce the searches as a condition of employment, but sent the case back to the district court to make a determination of constitutionality with regard to each specific job category affected, with particular attention paid to the “safety sensitivity” of a position. The U.S. Supreme Court denied review of the case in April 2014.

Since the appellate court’s ruling, both parties have been working under the supervision of a special master to analyze each affected job category to determine whether it is “safety sensitive” and hence testable.

In the recently filed settlement, Scott agreed not to impose drug testing on employees working in 1,133 of the approximately 1,400 job class codes affected by the executive order, amounting to about three-quarters of the job categories represented by AFSCME.

If the settlement terms are approved by the judge, the state will have to reimburse AFSCME $375,000 for attorneys’ fees and costs.

Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.

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