ACLU Challenges Scott's Drug-Testing Policy

The ACLU has filed suit against Florida's new law drug-testing state employees.

Governor Scott’s Executive Order directed all state agencies under the direction of the Governor to develop plans to allow drug testing existing state employees at least quarterly. The order attempts to resurrect a policy previously found unconstitutional by a federal judge in a 2004 ACLU case against the Department of Juvenile Justice (DJJ). That suit found the random drug testing of state employees without suspicion was unconstitutional. The plaintiff was awarded a settlement t of $150,000.

“I’m not sure if Governor Scott does not know that the policy he ordered has already been declared unconstitutional or if he just doesn’t care,” said Howard Simon, Executive Director of the ACLU of Florida. “But I do know that the state of Florida cannot force people to surrender their constitutional rights in order to work for the state.”

Existing law and court rulings allow for drug testing of public employees in positions that are safety-sensitive such as police who are required to carry a weapon as part of the job or those in positions while require operating dangerous machinery. But courts have routinely found that testing of all employees without regard for safety-sensitive positions or suspicion violates the Fourth Amendment protection against unreasonable government searches.

The Supreme Court ruled in Skinner v. Railway Lab. Execs. Ass'n that federal rail road employees could be randomly drug-tested. The court ruled that public safety outweighed the privacy matters of the employees. What Scott's executive order is doing is drug-testing all state employees. Scott is assuming all state employees are doing drugs. Previous legal rulings deemed there must be probable cause before drug-testing a state employee. Translation: the employee has to show signs he is doing drugs.

The ACLU has not said if they will file suit against people receiving unemployment being required to take a drug test.