Florida Delays Employee Drug Testing Pending Legal Challenge

Florida Gov. Rick Scott’s top lawyer has advised state agency heads to hold off on testing their employees for drugs under a new Florida law pending resolution of an existing legal challenge.

The Republican governor last year tried to implement random drug testing on his own through an executive order, but he put it on hold except for the Department of Corrections after a lawsuit was filed in federal court.

Scott’s acting general counsel, Jesse Panuccio, sent a memo to agency heads a day after Scott signed the law.

“Because the legal case remains unresolved, the practical and logistical issues involved with implementing drug testing across all agencies remains the same,” Pamuccio wrote.

The American Civil Liberties Union of Florida predicts the law will be struck down as a violation of the U.S. Constitution’s ban on unreasonable searches and seizures by the government, a restriction that doesn’t apply to private employers.

“People do not lose their constitutional rights just because they work for the state of Florida,” ACLU of Florida executive director Howard Simon said.

A public employees’ union and the ACLU filed the current lawsuit in Miami.

“No one should be surprised if this latest effort ends up in court — just as the governor’s past efforts to impose urine testing on applicants for government benefits and his executive order for state employee testing are now before the courts,” said Simon, who stopped short of saying that his group would file a suit. “We expect they will make it clear once again that government cannot subject people to suspicion-less searches just because it wants to.”

Scott, however, said he believes state employees should be subject to the same scrutiny as those in the private sector.

The bill cleared both the House and Senate in a vote along party lines in Florida’s Republican-dominated Legislature.

State employees could be randomly tested every three months under the plan. The random sample, however, can’t be more than 10 percent of the agency’s workforce and must be “computer-generated by an independent third party.”

The measure, which has an effective date of July 1, also makes it easier to fire a worker after a first confirmed positive test. No extra money was set aside, so department heads have to pay for tests out of existing budgets. Urine tests, the most common, cost from $10-$40 each.

Scott, a Republican, previously tried to enforce random drug testing through an executive order, but that was suspended due to a court challenge.

“It’s amazing that the governor and the Legislature would move ahead with a law that so clearly violates the Constitutional protections against invasive government searches without suspicion — especially while a legal challenge on precisely the same issue is pending in the federal court,” Simon said.

Scott and Agriculture Commissioner Adam Putnam both said that they already have drug testing policies in place and that some employees have been tested.

Attorney General Pam Bondi said that her lawyers will be working on the case, but ducked a question on whether she planned to require employees in the attorney general’s office be drug tested.

She also declined to talk about the expected litigation.

“When we represent other agencies, we can’t comment on that,” Bondi said. “We’re going to wait and see what happens next.”