Guest Column: Drug Testing Law May Need Some Tweaking

The Florida Legislature recently amended Florida's Drug-free Workplaces Act to permit random drug testing of state employees. While the intent was laudable, portions of the amendments will be challenged on constitutional grounds, and many may never be implemented because of state budgetary constraints.

State agencies will no longer be required to refer employees who test positive for drugs to a treatment program, but they may be able to terminate an employee after a positive test. Employees working in certain special risk positions who are sent to treatment must be transferred to non-special risk positions, or be placed on unpaid leave. These amendments mirror practices in the private sector and are sensible since they allow each agency to determine, on a case-by-case basis, the propriety of termination versus treatment.

The U.S. Supreme Court has held that a government-required drug test is a "search" for purposes of the Fourth Amendment's guarantee against unreasonable searches. Without reasonable cause, the government may usually require drug testing of only those employed in such safety sensitive industries as railways, airlines, mass transit systems,commercial marine vessels, etc., or in public safety positions.

The amendments allow state agencies to randomly test no more than 10 of their employees every three months. It is questionable whether testing such a small sample will have a meaningful impact on workplace drug use. Further, since testing is to be "conducted within each agency's appropriation" and since testing could cost up to $225 per employee, it is doubtful that many tests will be conducted at all.

If the testing is going to deliver real results, the Legislature may need to more tightly focus how such a law will be implemented.

*This article appeared in the Sun Sentinel on March 17, 2012.