Yesterday, Gov. Rick Scott issued an executive order calling for drug tests on new hires and random testing for current employees in agencies under his control.

But what happens if employees just say no? Scott’s order doesn’t say, but in many cases, the law may be on their side.

The American Civil Liberties Union responded to Scott’s order with a press release noting that in a 2004 ACLU case (.pdf) involving a state employee, mandatory random drug tests by the Department of Juvenile Justice were ruled unconstitutional by a federal judge.

Drug tests of random employees can constitute searches under the Fourth Amendment. For the government to test an employee without a warrant, it had to show a “compelling interest,” such as the safety of employees who carry guns on the job. Judge Robert Hinkle ruled that Roderick Wenzel, “a long-term strategic planner who worked in an office” and refused to take a test, did not meet that standard.

Scott told reporters today that he reviewed the matter with his counsel and that he felt the plan was on firm legal footing, and that taxpayers want to know that state employees are not using drugs.

Under the 2004 ruling, Wenzel and other employees like him could not be fired for refusing to take tests. Hinkle wrote:

The bottom line is this. In order for a state to subject an employee to random drug testing, it is not enough that there is a generalized interest in sober public employees who perform their jobs well and keep the public trust. Nor is it enough that others in the same agency have duties that make it especially important that those employees remain drug free. Nor is it enough that a far-fetched possibility can be conjured under which the employee at issue could, if under the influence of drugs, bring about some harm. … There must be, instead, a concrete risk of real harm. Mr. Wenzel, a long-term strategic planner, presented no such risk. He was not obligated to take a random drug test. [Emphasis added.]

Scott’s executive order doesn’t mention whether the tests will be mandatory, or specify penalties for employees who test positive or refuse to take them. It just requires agencies to implement testing procedures and notify their employees.

“It seems almost purposefully vague on a number of fronts,” said ACLU spokesman Derek Newton.

Even if the tests aren’t technically mandatory, there may be an element of coercion, he added. If the boss is asking employees to submit to tests, they may feel pressured to comply.

The AP has also highlighted a labor rights issue:

Scott also cannot unilaterally order drug testing of existing employees without safety issues if they are covered by labor contracts, said Tom Brooks, a lawyer for the Federation of Physicians and Dentists. The federation is a union for health care professionals who work for the governor’s agencies including the departments of Corrections, Juvenile Justice and Children and Families.

“Drug testing is considered a mandatory subject of collective bargaining” for most public employees, Brooks said, although he acknowledged the Florida Supreme Court has made an exception for police officers. [Emphasis added.]

Bottom line: “If his intent is to create a random mandatory drug-testing policy for all state employees, that’s not going to work,” Newton said.

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