1. Latest Developments on Drug Testing in the Workplace
Presented by:
Mark E. Levitt, Esq.
Allen, Norton & Blue, P.A.
1477 W Fairbanks Ave., Suite 100
Winter Park, FL 32789
(407)

2. Fourth Amendment
Employee drug testing is a search under the Fourth Amendment.
The drug test must be deemed “reasonable.”
“[T]he default rule is that ‘to be reasonable under the Fourth Amendment, a search must ordinarily be based on individualized suspicion of wrongdoing.”
Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 617 (1989).

3. Fourth Amendment – Special Need
Under certain circumstances, there exists a special need for heightened drug screening.
Government employees in “safety-sensitive” positions may be subject to suspicionless drug testing.
The special need for drug testing must be substantial and important enough to override the individual’s privacy interests and suppress the normal requirement of individualized suspicion.
A special need exists for those employees who carry a firearm, are involved in drug interdiction, or who have access to truly sensitive information.
Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989).

4. Florida’s Worker’s Compensation Act
Designed to promote drug-free workplaces, maximize productivity, and reduce work place accidents stemming from drug use.
Employers who maintain drug free workplaces in accordance with Fla. Stat. § are eligible for discounts in the worker’s compensation insurance premium.

5. Florida’s Worker’s Compensation Act - Mandatory Testing Positions
Mandatory Testing Positions include job assignments that require an employee to:
Carry a firearm,
Work closely with an employee who carries a firearm,
Work with children,
Work with detainees in the correctional system,
Work with confidential information or documents pertaining to criminal investigations,
Work with controlled substances, or
Work a job assignment where a momentary lapse in time could result in injury or death to another person.
If an employee in a mandatory testing position enters an assistance program or rehab, they must be reassigned to a non- mandatory testing position or placed on leave if none is available.

6. Florida’s Worker’s Compensation Act - Special Risk Positions
Law enforcement officers certified under Fla. Stat. § 943 are considered “Special Risk.”
Special risk employees may be discharged or disciplined after the first positive confirmed test.

7. Florida Worker’s Compensation Act – Notice
Must be provided in all vacancy announcements for positions which drug testing is required.
Must be posted in an appropriate and conspicuous location on employer’s premises.
Must provide a one time notice to employees containing a written policy statement meeting the statutory requirements.

8. Florida Worker’s Compensation Act – Confidentiality
All information received as a result of a drug testing program is confidential.
Information cannot be used as evidence, obtained in discovery, or disclosed in any public or private proceedings.
Information cannot be used in criminal proceedings.
Information may only be released if the employee voluntarily provides written consent.

9. Florida’s Worker’s Compensation Act - Employee Rights
Drug free workplace programs are a mandatory topic of collective bargaining.
If an employee tests positive, the employee has the right to explain or contest the result within five (5) working days.
If the employee’s explanation does not persuade the employer, the employer must provide a written explanation as to why the explanation is unsatisfactory.

10. Types of Drug Testing Policies

11. Individualized Suspicion of Drug Use
Drug testing based on a belief an employee is using or has used drugs.
Reasonable suspicion consists of specific objective and articulable facts and rational inferences.
City of Palm Bay v. Bauman, 457 So.2d 1322 (Fla. 5th DCA 1985).

12. Individualized Suspicion of Drug Use - Factors
Factors creating a reasonable suspicion of drug use:
Direct observation of drug use or the physical symptoms or manifestations of being under the influence of a drug;
Abnormal conduct or erratic behavior while at work, or a significant deterioration in work performance;
A report of drug use provided by a credible and reliable source;
Evidence that an employee has tampered with a drug test during his or her employment with the current employer;
Evidence that an employee has caused, contributed to, or been involved in an accident while at work;
Evidence that an employee has used, possessed, sold, solicited, or transferred drugs while working or while on the employer’s premises, or while operating the employer’s vehicle, machinery, or equipment.

13. Individualized Suspicion of Drug Use – Anonymous Tips
Anonymous tips do not give rise to reasonable suspicion unless:
The information they provide can be independently corroborated,
The threatened danger is extraordinary, or
The individual’s expectation of privacy is already diminished.
Testing based on personal animosity or rumors is unreasonable.

14. Random and Across-the-Board Drug Testing
Generally, random or across-the-board testing of all employees is unreasonable.
However, limited suspicionless random or across- the-board drug testing is reasonable if the government employer demonstrates a “special need.”
Random and across-the-board testing of employees and applicants should be limited to only “safety-sensitive” positions.

15. Random and Across-the-Board Drug Testing
In 2011, Governor Scott signed an Executive Order mandating all State employees be subjected to random drug testing.
The Eleventh Circuit Court of Appeals struck down the law as unconstitutional because the policy applied to all state workers and not just those in safety-sensitive positions.
AFSCME v. Scott, 717 F.3d 851 (11th Cir. 2013).

16. Random and Across-the-Board Drug Testing
Similarly, the Department of Juvenile Justice maintained a policy of randomly drug testing all employees.
The policy was deemed unconstitutional because it applied to all employees and not just those in safety-sensitive positions.
A general interest in a sober workforce is insufficient to subject normal public employees to drug testing. There must be a concrete risk of real harm.
Wenzel v. Bankhead, 351 F.Supp.2d 1316 (2004).

17. Critical Incident Testing
Critical incident testing for safety-sensitive positions is reasonable under the Fourth Amendment.
In one case, a court held that a police department’s policy requiring a drug test for any officer involved in a firearms discharge resulting in injury or death did not violate the Fourth Amendment.
Palladino v. City of New York, 2008 WL (S.D.N.Y. Sept. 30, 2008).
No court has approved critical incident testing for employees in non-safety-sensitive positions.

18. Job Applicant Testing
Employers should only drug test individuals applying for special risk or safety-sensitive positions.
Special need test cannot be met by ordinary public employees who work in offices and ought to be sober, but who do not pose a safety issue or danger based on a momentary lapse in judgment.
Chandler v. Miller, 520 U.S. 305 (1997)

19. Job Applicant Testing
In a recent case, the City of Key West instituted a policy requiring pre-employment drug testing of all applicants regardless of the position they were applying for.
The court held the policy was unconstitutional.
The safe, effective, and efficient delivery of public services is not a sufficient justification for across- the-board job applicant testing as there is no concrete danger.
Voss v. City of Key West, 24 F.Supp.3d 1219 (S.D. Fla. 2014).

20. Recommendations
Employers can drug test any employee only if they have a reasonable suspicion of drug use.
Employers cannot randomly drug test all employees regardless of their position.
Employers can only randomly drug test employees and applicants when there is a special need.
Special need positions include:
Law enforcement officers;
Corrections employees;
Positions required to carry firearms;
Position that work with drugs/controlled substances;
Positions which work closely with children;
Positions which regularly work with classified or similar highly sensitive criminal information.

21. Recommendations
Drug testing policies must be negotiated in collective bargaining.
Employers must provide notice of drug testing policies to applicants and employees.
Drug testing policies should be re-visited frequently as the case law is constantly evolving.

22. Questions?

23. Thank you! Mark Levitt 1477 W. Fairbanks Ave, Suite 100
Winter Park, FL 32789
(407)