Illegal Drug Tests In Florida Receive Stay Of Execution — But It Won’t Last Long

A conservative federal appeals court handed a temporary victory to Florida Gov. Rick Scott (R), vacating a lower court order suspending his plan to subject every single state worker under his control to random drug tests. This victory is unlikely to last very long, however. Although the court’s opinion correctly notes that some state jobs present safety concerns that justify drug testing workers even if they are not suspected of using drugs, it also leaves little doubt that Scott’s program sweeps too far:

What the Supreme Court’s case law requires, in contrast, is that the trial court balance the governmental interests in a suspicionless search against each particular job category’s expectation of privacy. Among the covered state employees, for example, are law enforcement personnel who carry firearms as well as employees tasked with operating heavy machinery or large vehicles — groups that the Supreme Court has held, in a line of precedent beginning with Skinner v. Ry. Labor Execs.’ Ass’n, may be drug tested without individualized suspicion. As to those safety-sensitive employees, the EO’s application would most likely be constitutional, and, therefore, the district court’s order cannot stand as written. . . .

However, the Supreme Court has approved of suspicionless drug testing only when the government has demonstrated heightened interests, such as a serious threat to public safety, that apply narrowly to specific job categories of employees. Yet during the summary judgment proceedings, the State refused to provide reasons that apply narrowly to specific job categories, which undoubtedly hindered the district court from conducting its balancing calculus at the proper level of specificity. On remand, the State must meet its burden of demonstrating important special needs on a job-category-by-category basis. Its current arguments have failed to convince us to direct summary judgment in its favor.

According to the American Federation of State County and Municipal Employees council that was a plaintiff in this case, approximately 40 percent of state employees carry firearms, operate mass-transit vehicles, or otherwise present special safety concerns that could justify suspicionless drug tests. While the appeals court’s opinion calls for additional fact-finding to determine which employees do and do not fit this bill, AFSCME’s estimate presents a likely benchmark for how many state workers will ultimately be subject to the drug tests.

The immediate practical effect of the opinion, however, is to vacate the lower court’s order halting the drug tests. For that reason, it is fairly likely that the Scott Administration will resume testing even on employees that it is unconstitutional to test until the lower court has time to conduct the intensive inquiry into just which employees are subject to the Constitution. Ultimately, however, it is also likely that an order will emerge that prevents most state employees from being tested.

An opinion by the same appeals court held last February that Scott’s plan to drug test welfare recipients was unconstitutional. That order is unchanged by the most recent opinion governing state workers.