Rick Scott settles on state worker drug testing

Gov.Rick Scott and the union representing most state employees reached a truce Monday in his losing four-year legal fight to require random drug testing of tens of thousands of state employees.

"We are pleased that the settlement will allow Florida to protect families by ensuring state employees working in the most critical areas of safety and security remain drug-free," said John Tupps, the governor's deputy communications director.

The ACLU said the agreement also resolves an unrelated, but similar, lawsuit in which Scott was stopped from requiring drug tests of welfare applicants. Both testing plans were part of his 2010 campaign for governor and Scott sought to implement them shortly after taking office in 2011.

"Gov. Scott came into office on a campaign that exploited myths and stereotypes about poor people and state workers, and treated them like suspected criminals," said Howard Simon, executive director of the ACLU of Florida. "This settlement agreement marks the end of that campaign."

In the settlement, the state agreed not to test employees in 1,133 of about 1,400 job classifications in agencies under the governor. Testing would be allowed mainly in "safety sensitive" jobs, in which an employee's errors could jeopardize others.

The courts have long recognized that employees such as as law-enforcement and prison officers can be tested prior to employment, and randomly required to submit to urinalysis on the job. Also, employees who show signs of impairment can be required to take tests, under state programs dating back nearly 30 years.

Among the thousands of employees who will not be subject to tests, under the agreement, are regular clerks, office workers, purchasing agents, project and systems analysts and other office workers.

"Gov. Scott's mandatory, universal urinalysis plan and the arguments he made in court to defend it, rested on the idea that everyone loses their constitutional protections when they choose to serve the people of Florida, regardless of their positions," said Jeannette Wynn, state president of AFSCME Council 79. "The settlement we've reached would significantly scale back that campaign, allowing a more limited testing program to go forward, while protecting the rights and dignity of many of our members who were unlawfully subject to suspicion less searches under the original executive order."

Scott signed the order March 22, 2011, less than three months after taking office. It was immediately challenged in court by AFSCME and ACLU attorneys won in a Miami federal district court and the federal appeals court in Atlanta. The U.S. Supreme Court refused to hear Scott's appeal a year ago.

Aside from legal arguments under the Fourth Amendment, which protects citizens' privacy against government searches, plaintiffs in the case argued that there was no evidence that government employees are any more likely to use illegal drugs than are any other citizens. A similar argument was mounted in the successful suit against testing of applicants in the Temporary Assistance for Needy Families program, in which the appeals court ruled Scott's testing plan unconstitutional in 2011.

The state did not appeal that one to the U.S. Supreme Court last month.

ACLU staff attorney Shalini Goel Agarwal said Scott's drug-testing order was premised on a belief that the state could "require anyone it chooses to submit her bodily fluids for government inspection without reason or suspicion.

"By agreeing to this settlement, the governor is finally conceding that he has no authority to mandate drug testing of employees in approximately three-quarters of job categories represented by AFSCME," she said.

The settlement is subject to approval by the federal court.