Defending State Employees Against Suspicionless Drug Testing

Shalini Goel Agarwal
Staff Attorney, ACLU of Florida 

Yesterday,  it was a privilege to present arguments to Judge Ursula Ungaro of the federal district court in the Southern District of Florida about the unconstitutionality of Executive Order 11-58, an order by the Governor requiring mandatory suspicionless drug testing of all employees in and applicants to state agencies under his supervision.

I pointed out that under a long line of Supreme Court cases, suspicionless urinalysis by the government of its employees violates the Fourth Amendment, unless the employee’s job is safety-sensitive.  Safety-sensitive jobs include, for example, railroad workers involved in major accidents and customs officers who carry guns or interdict drugs.  They do not include government accountants, long-range planners at the Department of Juvenile Justice, and candidates vying to become Governor.

Because the notion that suspicionless drug testing of government employees must be limited to safety-sensitive jobs is so clear in the law, I don’t know of any other governmental entity that has even tried to institute a drug testing policy as broad as the Governor’s.  And certainly no court has ever upheld this type of blanket drug testing policy targeting all employees and applicants.

I also pointed out that under the Drug-Free Workplace Act the Governor has had the power for over twenty years to drug test those reasonably suspected of drug use and those in safety-sensitive positions.  There is no reason to think that this type of testing could not address the Governor’s concerns, particularly given that, prior to the Governor’s executive order, over 99% of applicants and employees tested were drug-free.

We look forward to Judge Ungaro’s ruling on this important constitutional issue.

8 Responses to “Defending State Employees Against Suspicionless Drug Testing”


  1. 1 cjones February 24, 2012 at 8:32 pm

    Interesting that there are no comments as of 2/24/12. That’s because state employees who dare use their 1st Amendment Right to free speech to make a public statement against the governor, and as far back as governor Jeb, find that they are suddenly being “separated” from employment.


  1. 1 Florida is Crazy About Drug Testing « ACLU of Florida Trackback on February 28, 2012 at 8:27 pm
  2. 2 Florida is Crazy (About Drug Testing) « ACLU of Florida Trackback on February 28, 2012 at 8:29 pm
  3. 3 Tallahasee and the “Righteous War” « ACLU of Florida Trackback on March 2, 2012 at 1:14 pm
  4. 4 Cartoon: Rick Scott and Drug Testing « ACLU of Florida Trackback on March 5, 2012 at 12:29 pm
  5. 5 Cartoon: Rick Scott, the Constitution and Drug Testing | ACLU of Florida Trackback on July 26, 2012 at 5:39 pm
  6. 6 Florida is Crazy (About Drug Testing) | ACLU of Florida Trackback on July 26, 2012 at 5:39 pm
  7. 7 Tallahasee and the “Righteous War” | ACLU of Florida Trackback on July 26, 2012 at 5:40 pm

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