A federal district court erroneously enjoined Florida Governor Rick Scott’s (R-Fl) Executive Order (No. 11-58) mandating pre-employment drug testing for all prospective new hires and random drug testing of all state employees within each agency, the U.S. Court of Appeals in Atlanta has held.  (AFSCME Council 79 v. Scott, ____ F.3d ___ (11th Cir. No. 12-12908, decided May 29, 2013), 35 (BNA) IER Cases 1273).  The Executive Order allowed Florida’s 85,000 state employees to be tested at least quarterly.

The district court granted an injunction against the random testing of all state employees, although it did not inquire into which employees, if any, might be employed in “safety-sensitive jobs,” . . . and despite the fact that the union which brought the challenge conceded that at least one of the 85,000 was engaged in a “high-risk safety-sensitive job.”  (It did not address the pre-employment testing.)

The Court of Appeals said that such a facial challenge to the Executive Order was justifiable only if there were no circumstances in which it could be applied in a constitutional manner.  Otherwise, the Court said, the challenge would have had to been brought on an “as applied” basis – examining each job to see whether suspicionless, random drug testing might be warranted on a “special needs” basis, generally meaning that the job is safety-sensitive.

Here, although the district court said it was addressing a claimed Fourth Amendment violation on an “as applied” basis, in fact it treated the claim on a facial basis.  “Rather than conducting any kind of job-category-by-category inquiry, and narrowly tailoring its decision to the precise contours of the constitutional violation, the district court facially invalidated the provision of the Executive Order that provides ‘for random testing of all employees with each agency,’” the Eleventh Circuit found.

Indeed, the Court of Appeals noted that based on the union’s own submission, approximately 33,000 state employees “served in arguably safety-sensitive positions.”  As to such positions, the district court on remand would have to engage in the necessary balancing of individual privacy against the government’s interests.  This would require considering the characteristics of the industry, whether the government interest was “compelling,” the efficacy of the policy, the character of the intrusion on privacy and the employees’ expectations of privacy, as prescribed by Supreme Court cases.  Among the categories of jobs where suspicionless testing had been upheld, the Eleventh Circuit summarized, were those involving drug interdiction, the carrying of firearms and the handling of classified material (“truly sensitive information”).  It observed further that sister circuits had upheld suspicionless testing where jobs involve heavy machinery or the operation of large vehicles, such as planes, trains, buses or boats; police officers and correctional officers also might be included in such testing.  These positions presented a substantial and real risk to public safety or direct involvement in drug interdiction – the employment-related rationales approved by the U.S. Supreme Court.

“[T]he sort of fact-intensive line-drawing required is a task that properly belongs to the district court,” the Eleventh Circuit said, declining to affirm any part of the judgment.  The Court also rejected the State’s argument that the employees’ consent to testing – on pain of termination – or the general need for a safe and efficient workplace alone were sufficient to justify random testing of all current employees.  The fact that some risk to employees inhered in many workplaces would not suffice.  The court said, “We reject the idea that a stack of heavy boxes or a wet floor falls within the same ballpark of risk as the operation of a ten-thousand-ton freight train or the danger posed by a person carrying a firearm.”

Recognizing that a “substantial, even onerous” task lay before the parties and the district court, the Court of Appeals nevertheless remanded the case stating, “Convenience cannot override the commands of the Constitution.”  The ruling does not affect Florida’s Drug Free Workplace Act.

The Governor responded to the Court of Appeals’ ruling with the following statement:

Many Floridians are required to take drug tests in their workplace and it is only right for state workers paid with taxpayer funds to be required to do the same.

The Court did the right thing today by reversing the injunction on our executive order for drug testing state employees.  We will go forward in arguing this case in both the appellate and trial courts in order to ensure that taxpayer funds are safeguarded from misuse by ensuring our state workforce is drug free.