Judge strikes down 'suspicionless' drug testing of Florida state workers

A federal judge's ruling strikes down Florida's first-in-the-nation drug testing law – and could give pause to other states considering suspicionless drug testing of state workers or others receiving state funds.

A federal judge in Florida did not buy GOP Gov. Rick Scott’s argument that drug testing state employees without suspicion of drug use is legal and benefits everybody, ruling on Thursday that the law – the first of its kind in the nation – doesn’t comprise a “reasonable” search under the US Constitution’s Fourth Amendment.

Miami-based US District Judge Ursula Ungaro applied a similar line of reasoning as the US Supreme Court did in a 1997 Georgia case challenging drug testing of political candidates, in which Justice Ruth Bader Ginsburg wrote for the majority that “suspicionless” drug testing "diminishes personal privacy for a symbol's sake.”

“The Governor's reasoning is hardly transparent and frankly obscure," Judge Ungaro wrote in her Thursday ruling. "He offers no plausible rationale explaining why the fact that a state employee's work product and financial status are publicly accessible leads to the conclusion that the employee's expectation of privacy in his or her bodily functions and fluids is then diminished."

Florida is the tip of the spear for a number of new Republican measures in several states to drug test beneficiaries of taxpayer dollars. The state last year mandated drug testing for welfare beneficiaries, though it suspended that program pending a legal challenge from the American Civil Liberties Union and other groups.

While critics say the laws have no purpose except to demonize state employees to score political points, Governor Scott has called it a “common sense” solution to real workplace problems that are already ubiquitous in private industry. Scott's lawyers argued that state employees in general have less expectation of privacy, and that, if they objected to the drug tests, they could choose to work elsewhere.

Under the law, which was signed in March, agency chiefs were allowed, but not mandated, to randomly drug test up to 10 percent of their workforce. Employees would be protected from termination for a first offense and would be offered drug-dependency counseling. In a controversial move, elected officials are exempt from the law.  

The Congressional Research Service wrote in a white paper on suspicionless drug testing that laws that minimally impact someone’s life are more likely to be considered “reasonable” by federal judges.

But Ms. Ungaro applied a stricter standard that may give pause to a number of other states considering similar suspicionless drug testing laws, even though a new Quinnipiac poll found in February that 75 percent of Virginia residents, for example, support drug testing people who receive cash assistance from the state.

And several states, including Oklahoma and Georgia, are considering drug testing residents who are collecting unemployment, after Congress last December voted to allow states, if they so choose, to drug test unemployment recipients looking for jobs in industries such as aviation, where drug testing is already mandatory.