One civil liberty group questions the constitutionality of Florida’s new drug-testing mandate for state employees and plans to challenge Gov. Rick Scott’s Executive Order 11-58 in court.
Opponents call mandatory pre-employment and unannounced, quarterly drug-testing a costly invasion of privacy in a state that has faced sweeping budget cuts since Scott entered office this year. Testing the more than 150,000 state workers each quarter will cost at least $23.5 million, according to The FAMUAN’s research.
The American Civil Liberties Union (ACLU) and Richard Flamm, a scientist with the Florida Fish & Wildlife Commission, filed a lawsuit in Miami this month along with the American Federation of State, County and Municipal Employees (AFSCME) – a civil servant’s union – challenging the validity of rehashing an outdated law to screen workers for unnamed drugs.
ACLU contends that Executive Order 11-58 provides for baseless checks and affords government more power than it is entitled. “The Executive Order, we believe, is unconstitutional because it is a government search and seizure without suspicion of drug use,” said Derek Newton, a representative of the Florida Chapter of the ACLU. “Therefore it is an unreasonable search and seizure executed by the government and prohibited by the Fourth Amendment.”
State agencies are not required to drug test employees unless they choose to participate in a Drug-Free Workplace plan or employees hold “safety- sensitive positions” such as carrying a gun, working with confidential information or performing life-threatening procedures where impairment could cause an immediate, public-safety concern.
“Special-risk positions” such as police officers or firefighters and state contracted construction companies are also included in that list. Agencies that choose to participate in Drug-Free Workplace get discounted insurance premiums through the program.
As for Order 11-58, Newton said only agencies directly or indirectly reporting to the executive branch would be covered although, “It’s a little unclear.” Judges, legislators and those working within the state university system are exempt.
Scott has revived policy that was deemed unconstitutional in a 2004 Florida Supreme Court case, involving a Department of Juvenile Justice employee wherein it was found that the suspicion-less testing for drugs on state workers violates the Fourth Amendment right to freedom from unwarranted searches and seizures. The plaintiff was awarded $150,000.
U.S. Supreme Court Justice Antonin Scalia in his closing of a similar case said, “Employee drug testing by urinalysis is particularly destructive of privacy, offensive to personal dignity, demeaning and an affront to dignity.”
State workers are divided on the implications of this drug-testing mandate. They have asked to remain anonymous in fear of retaliation.
“Here’s my concern: they [state government] start with drug testing, then it’s going to be some other gene testing or something else and the next thing you know you can’t get a job,” said a Department of Education employee, “because maybe it’s not just drugs anymore, maybe it’s some other infringement on our rights. Our constitution doesn’t have any force anymore.”
Others disagree, asserting that testing is less of an intrusion when it is a stipulation to work. “If that’s the law, and it’s a part of my job, I have to make the decision if I want to work or not,” said an Agency for Workforce Innovation employee.
Executive Order 11-58 was signed on March 22 and went into effect two months later. It bases these tests on the assumption that “the taxpayers of Florida are entitled to a public workforce that is fit for duty and, as such is free from the harmful dangerous influences of illegal drugs” but it doesn’t name the drugs that the state is looking for.
The State Personnel Annual Workforce Report 2009/2010 says that Florida had approximately 167,797 state positions. Quest Diagnostics, one of 13 companies that does drug screenings for the state, charges $35-$45 per test, bringing the estimated cost to implement the order statewide to anywhere from $23.5 million to $30.2 million.
The governor’s office and the Department of Management Services all declined repeated requests for comment.
The only thing left in question is how Governor Scott was able to sign the order after mandatory drug testing of state employees has already been found unconstitutional in the Florida Supreme Court. Newton had this explanation, “he implements it, and that’s textbook separation of power. Somebody has to go to the court and get the court to say he can’t. It’s up to somebody like the ACLU to take him to court.”