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.

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