The House voted largely along party lines Friday to allow state agencies to set up drug testing programs for their workers over the objection of Democrats who said it wasn’t just unconstitutional, but a bully tactic.
The bill (HB 1205) follows a similar requirement for random drug testing and pre-employment screening put in place a year ago by executive order of Gov. Rick Scott. That order is on hold pending the outcome of a court challenge, with Scott telling most agencies in June to hold off on the plan until the courts rule. The state prisons agency has gone ahead with drug testing of employees, however.
The bill, sponsored by Rep. Jimmie Smith, R-Inverness, doesn’t require the drug tests, but would let agencies set up such programs. It limits the number of employees tested to no more than 10 percent of each agency’s workforce every three months.
Much of the debate on Friday was over whether such “suspicionless” drug testing violates the Fourth Amendment to the U.S. Constitution, which precludes unreasonable searches, and whether the courts would let such a program stand.
Legislative staff has noted in an analysis of the bill that the U.S. Supreme Court has found that “blanked suspicionless searches” may be reasonable and therefore OK in some cases where public safety is at issue. “But where … public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search,” the Supreme Court ruled.
The staff also noted that federal courts with jurisdiction over Florida have held that an agency’s random drug testing policy was unconstitutional in a case where it found an employee did not present a “concrete risk of real harm,” and a city’s drug testing law was unconstitutional because the city produced no evidence of drug use among employees.
Several Republicans, however, said the bill had no constitutional problems, and a number noted that it’s fairly common in the private sector.
Smith said drug use is rampant, and argued it makes sense to test as many people as possible. Noting that many businesses now routinely test workers, Smith said testing has become generally accepted in society, likening it to breathalyzer testing by police to test for alcohol use, although opponents note that typically police only test people suspected of drunk driving, rather than issuing random breath tests to people not under suspicion.
“We cannot simply keep arresting people… It’s time to face the problem and use the techniques that work,” said Smith. “It’s common sense.”
Democrats argued also that the attempt to drug test state workers, along with another GOP-led effort to require drug testing for welfare recipients, was mean-spirited, and only possible because those being targeted are relatively powerless. The Legislature refused to require testing of lawmakers, and others in position of power, they noted.
“You’re just being bullies, said Rep. Perry Thurston, D-Plantation. “You can do this to state workers, you can do this to welfare recipients. If you want to change society, let’s do it to the lawyers.
“You know why you won’t do it to the lawyers? Because you won’t get nowhere,” Thurston said. “You pick on people you can bully around.”
Democratic Rep. Mark Pafford introduced an amendment Friday that would have also required legislators to take drug tests, but the amendment was batted back by Republicans. Smith called the amendment “political theater.”
The bill passed 79-37 and now goes to the Senate, where its future is uncertain. Scott has said that drug testing of employees is common sense, and would be expected to sign the measure should it get to his desk.
–News Service of Florida