A judge for the the US District Court for the Southern District of Florida [official website] on Thursday blocked an executive order that mandates Florida state government agencies provide pre-employment drug screening for all prospective employees and provide for random drug testing of all current agency employees regardless of classification. Governor Rick Scott [official website] issued Executive Order 11-58 [text, PDF] in March 2011 and directed the drug testing policy to go into effect by May 21, 2011. The American Civil Liberties Union of Florida (ACLU-FL) [advocacy website] filed a lawsuit [JURIST report] in May on behalf of the American Federation of State, County and Municipal Employees Council 79 (AFSCME) [official website], a union representing 50,000 public workers affected by the order, and Scott suspended the testing in June. Judge Ursula Ungaro found that the executive order (EO) violates the Fourth Amendment [text]:
Here, the Court finds that the EO, as applied to current employees at the covered agencies, is violative of the Fourth Amendment, and that these employees will suffer irreparable harm if subjected to it. ... The Court also concludes that there is no adequate remedy at law in light of the immeasurable nature of the harm that will flow from the EO’s implementation; were the EO to be implemented, the current employees at the covered agencies would suffer a Fourth Amendment violation that cannot be remedied in monetary terms. “Indeed, one reason for issuing an injunction may be that damages, being immeasurable, will not provide a remedy at law.”Ungaro did not reach the issue of whether prospective employees can be subjected to preemployment testing. The ACLUFL welcomed the ruling [press release].
Despite the legal challenge to the EO, the Florida legislature recently passed the Drug-Free Workplace Act [text], which allows state employers to randomly test up to 10 percent of their workforce. The act, set to take effect in July, does not create a "duty" to test, but allows state employers to dismiss or discipline employees the first time they test positive for drugs. Scott signed the bill into law [JURIST report] in March, and a separate legal challenge to the new legislation is expected. Florida is also facing a legal challenge to a different drug-testing law. In October, a judge for the US District Court for the Middle District of Florida [official website] temporarily blocked [JURIST report] a new Florida law that had required welfare applicants to pass a drug test before receiving benefits. Judge Mary Scriven said that the law might violate applicants' Fourth Amendment protection against unreasonable search and seizures. The ACLU-FL and the Florida Justice Institute [advocacy website] filed the challenge [JURIST report] in September.