Drug testing: Florida aims to be first to test public workers

New Florida drug-testing law allows agency heads to randomly test public workers for illegal drugs, prescription drugs, and alcohol. But it exempts the governor and state legislators.

Florida, which already tests welfare recipients for drug and alcohol abuse, is poised to extend drug testing to state public employees – a first-in-the-nation move that lawmakers from other states may copy, even as labor unions, civil libertarians, and small-government advocates rail against it.

Under the law, which cleared the Legislature March 9, agency heads are allowed (but not required) to randomly test up to 10 percent of their workforce for illegal drugs, prescription drugs, and alcohol, every three months. Elected officials are exempt.

The Republican-backed measure is intended, supporters say, to be a net benefit in that it gives workers who have drug problems a way to get clean, while at the same time protecting the broader citizenry from impaired public servants.

State workers in Florida are not known to have greater substance abuse problems than workers elsewhere. Rather, the new drug-testing law seems to be part of a trend to raise accountability for a wide range of people who are receiving taxpayer dollars – be they public employees, welfare recipients, or jobless people collecting unemployment benefits.

Drug testing is a winning political issue, even if some measures may be straining the US Constitution's protection against "unreasonable search and seizure," analysts say.

"People are always in favor of locking up miscreants, and, despite our constitutional legal traditions, there's always a lot to be reaped from the argument that if you haven't done anything wrong, you don't have anything to worry about," says Colin Gordon, a labor historian at the University of Iowa in Iowa City. "But it's always surprising to me," he adds, "how little weight the civil liberties argument has – an implication that has become exaggerated in the war-on-terror era, and which says we can and should suspend liberties for people who don't deserve them."

South Carolina Gov. Nikki Haley, a tea party favorite, is among Republican officials pushing for mandatory drug testing for welfare recipients. Indeed, while Florida is the only state to require drug tests for people on welfare, such legislation has been introduced in more than half the states. A February Quinnipiac Poll of Virginia voters, for example, showed such legislation has public support, with 3 in 4 respondents favoring drug tests for people who receive cash assistance from the state.

No state yet requires those collecting unemployment to undergo drug testing, but Arizona, Oklahoma, Georgia, and Utah are among those considering it. The US Department of Labor, as instructed by Congress in December, now allows states to require drugs tests for unemployment recipients whose job search is confined to industries that already require drug testing, such as aviation.

The various drug-testing proposals are all of a piece, says lawyer George Wentworth at the pro-labor National Employment Law Project, in New York. "This is symptomatic of what happens in a bad economy, where just as unemployed workers are being misrepresented as living on the dole, state employees are also frequently the target of politicians who want a convenient target," he says.

On the other hand, private industry already does random drug testing of employees, and why should public employees live by a different code? ask supporters of Florida's measure, which Gov. Rick Scott (R) says he will sign. Some 19 million American workers – about 15 percent of the workforce – have drug or alcohol problems, according to the federal Substance Abuse and Mental Health Services Administration.

Legal hurdles loom for both of Florida's new drug-testing laws. A chief issue is whether individuals can be tested in the absence of any evidence or suspicion of drug use. "I haven't been running across drug-addled employees who are unable to do their jobs," quips state Sen. Joe Negron, the lone Republican to vote against drug tests for state workers.

In a 1997 US Supreme Court case testing Georgia's effort to require drug tests for candidates running for office, the court said no. The problem, wrote Justice Ruth Bader Ginsburg, is that "Georgia asserts no evidence of a drug problem among the state's elected officials. However well meant, the candidate drug test ... diminishes personal privacy for a symbol's sake. The Fourth Amendment shields society against that state action."

That may explain why the Florida measure exempts elected officials from drug tests. But courts' interpretation is evolving as to what constitutes a "reasonable" search or seizure, and Florida Republicans are aiming for what they hope will be a sweet spot.

The law, which does not make a first-time positive test a firing offense, frames the issue as extending a helping hand and not as a punishment, supporters say.

"Drug-testing programs that require results to be kept confidential to all but a small group of non-law enforcement officials and that only minimally impact an individual's life are more likely to be considered reasonable," states a constitutional assessment of the new "suspicion-less" drug-testing proposals, written by David Carpenter, a Congressional Research Service lawyer.