After Governor Rick Scott took office in 2011, he issued an order mandating pre-employment drug screening and randomized drug testing of nearly 85,000 Florida state employees. Recently, Governor Scott and the union that represents the state workers entered into a settlement agreement. According to the settlement, only some of the 85,000 workers will be subject to drug screening.
The state workers are represented by the American Federation of State, County, and Municipal Employees Council 79 (Council 79). Council 79 in turn hired the American Civil Liberties Union to spearhead the lawsuit on Council 79's behalf. The ACLU filed a lawsuit challenging the Governor's executive order on the basis that both prongs of the drug testing were unconstitutional. According to the lead ACLU lawyer for the case, "[t]he question of whether the state has the power to compel all employees to submit to suspicionless searches without good reason is settled and the answer is no."
Initially, a Miami federal district court judge struck down the order, but the United States Court of Appeals for the 11th Circuit reversed the lower court's ruling, finding that it was not inherently unconstitutional to require drug testing for those employees who work in sensitive capacities. The United States Supreme Court declined to hear an appeal in the case.
As part of the settlement, the State of Florida must reimburse approximately $375,000 in attorneys' fees and costs to the Florida branch of the American Federation of State, County, and Municipal Employees.
If your employer has asked you to submit to a drug test either before you have been officially hired or during employment, it is important to understand your rights. For the most part, workplace drug testing is regulated according to state and local laws. The federal government imposes some drug testing requirements for employees in sensitive positions, like aviation, transportation, and NASA.
Similar to other states, Florida utilizes a drug-free workplace program to oversee drug testing. If an employer signs up for the program, it is eligible for discounts on worker's compensation insurance costs. Florida law requires employers to test employees in specific circumstances according to specific procedures. These procedures are designed to protect applicants' and employees' rights. Additionally, the laws require an employer to include a notice of drug testing in any job announcements or advertisements.
When it comes to testing existing employees, an employer may require an employee to take a drug test if the employer has a reasonable suspicion that the employee has engaged in drug use. Other occasions when existing employees can be subject to drug testing include routine medical examinations and after an employee returns from drug rehabilitation following a positive drug test. The testing is not required, however, if the employee entered the rehabilitation facility voluntarily as opposed to after a positive test result.
An employee must be given at least 60 days' notice of an employer's drug testing policy. In the event an employee tests positive for drug use, the employee has five days to either contest the result or provide an explanation. Also, the employer must verify the results of the drug test and cannot take any adverse action toward the employee until the results have been confirmed.
The skilled employment law attorneys at Lusk, Drasites & Tolisano have represented numerous employees in actions against their employers regarding workplace drug testing throughout Fort Myers, Naples, and Cape Coral. We know how devastating it can be to lose your job, especially when you were not at fault. If you or someone you know has been suspended or terminated from their job as the result of an unlawful drug testing practice or policy, we can help. Contact us now at 800-283-7442 or contact us online to set up your free initial consultation.