by Ricardo L Gilmore, Esq., and Michael J Roper, Esq.
Published in FAHROgram November/December 2014

As Florida public employers, housing authorities should be aware of a recent case regarding the constitutionality of a governmental body’s personnel policy that mandated drug testing for all job applicants. See Voss v. City of Key West, 2014 WL 1883588 (S.D. Fla. May 9, 2014). In our experience, many public housing authorities have a similar policy of testing all job applicants across-the-board, and this new decision warrants a careful review of those common employment practices.

Michael J. Roper, Esq., of Bell & Roper, PA, in Orlando, performs quite a bit of insurance defense work for housing authorities we work with here in Florida. He brought this important case to my attention a few months ago, and several of you have asked how to proceed with pre-employment drug testing given this ruling. Much of the analysis that follows was supplied by Mr. Roper, and I want to thank him at the outset for allowing me to use, modify and supplement his expert analysis on this matter.

In Voss, supra, the City of Key West had implemented a drug-free workplace policy that provided for 1) postoffer testing for all applicants for employment; 2) reasonable suspicion testing; and 3) random testing for “safety sensitive” positions. The plaintiff applied for and was offered the newly created position of solid waste coordinator (coordinator) contingent, in part, upon her submission of a urine sample an d a successful completion of a standard drug screen. The plaintiff signed an employee acknowledgement agreement reflecting her agreement to submit voluntarily to the test and her understanding that her refusal to test would disqualify her from employment. Thereafter, the plaintiff refused to submit to the drug test and instead went directly to the city attorney and objected to undergoing the pre-employment drug screen. Due to her refusal to submit to the drug test, the position was offered to, and accepted by, another candidate.

The plaintiff then filed suit against the city alleging that the requirement for her to undergo a mandatory drug test violated her civil rights. In ruling upon the plaintiff’s motion for summary judgment, the U.S. District Court for the Southern District of Florida, Key West Division, first of all noted the well-settled precedent that drug testing that utilizes urinalysis is a “search” that falls within the ambit of the Fourth and Fourteenth amendments. As such, in order to be “reasonable,” the search must ordinarily be based upon an individualized suspicion of wrongdoing. However, the U.S. Supreme Court has recognized exceptions to that rule where the government proffers a “special need” or an “important governmental interest” that is furthered by the minimal intrusion.

Accordingly, the city proffered two alternative “important governmental interests” in an effort to justify the suspicionless testing of job applicants. First, the city argued that it had an important interest in the “.-. safe, effective and efficient delivery of public services.” Second, the city argued that the position was “safety sensitive” because the coordinator must occasionally supervise the transfer station and give presentations to school-aged children.

The district court, relying primarily upon the Supreme Court’s decision in Chandler v Miller, 520 U.S. 305 (1997), rejected the city’s argument regarding the safe and effective delivery of services as being merely a “symbolic” interest and therefore insufficient to justify the search. The court indicated that there was no record evidence of a serious problem with drug abuse amongst job applicants or city employees, which might serve to justify the suspicionless testing regimen.

The court also rejected the city’s argument that the coordinator position was “safety sensitive,” so as to justify the testing. The court analyzed the essential requirements of the job and concluded that the coordinator was really not actively engaged in safety-related duties. The court also distinguished this case from Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989), which found that certain “surpassing safety interests” would justify suspicionless drug testing. In Skinner, the court was presented with evidence that on-the-job intoxication resulted in multiple fatalities and other injuries over a 10-year period. In Voss, the city was unable to produce any such similar history of accidents or injuries in the solid waste department resulting from intoxication.

Finally, the court rejected the city’s argument seeking to draw a distinction between current employees and applicants for employment. The city, relying primarily upon the prior decision in Willner v. Thornburgh, 928 F. 2nd 1185 (D.C. Cir. 1991 ), argued that suspicionless testing of job applicants was reasonable under the Fourth Amendment because applicants can refrain from applying for positions that require pre-employment drug testing. In reaching this conclusion, the district court judge stated in pertinent part as follows:

.. there is no precedent in this Circuit which holds that the government can violate a person’s rights under the Fourth Amendment so long as prior notice of the impending violation is given. Accordingly, the Court finds no reasons to adopt the distinction between applicants and employees that the City has suggested.

Accordingly, the court granted summary judgment in favor of the plaintiff as to liability, finding that her Fourth Amendment rights had been violated by the city’s requirement for a pre-employment drug test for her non-safety-sensitive position. The court noted that while suspicionless drug testing of applicants for employment may have become routine for private employers, public employers are more constrained by the Fourth Amendment.

This decision seems to be consistent with the recent trend by the federal courts to increasingly restrict the ability of Florida’s public employers to drug test their employees. See, e.g., AFSCME v. Scott, 717 F. 3d 851 (11th Cir. 2013) cert. den. 134 S. (:t. 1877 (2014) (holding that a suspicionless random drug testing policy for all state employees violated the Fourth Amendment). It appears that, under current law, a Florida public employer can only lawfully drug test its applicants or employees under the following circumstances: 1) reasonable suspicion; 2) random testing for a true safety-sensitive position; 3) routine fitness for duty; and 4) follow-up testing. Furthermore, it appears that in order to justify the random drug testing of safety-sensitive employees, an employer may be required not only to demonstrate that the position is truly “safety sensitive,” but may also be required to demonstrate a history of accidents or injuries constituting “surpassing safety interests,” either within the organization or within the industry as a whole, in order to justify suspicionless testing of even safety-sensitive positions.

The Voss decision did not reference either§ 112.0455, Florida Statutes (Drug-Free Workplace Act), which applies to the state and its agencies, or § 440.1025, which establishes a framework by which employers may secure workers’ compensation discounts. However, it is worthwhile to note that the definition of “job applicant” for a public employer in§ 440.102(1)G) is limited to” … a person who has applied for a special-risk or mandatory-testing position.” Accordingly, the language of that statute appears to be consistent with the rationale and holding in Voss.

This ruling, if not reversed or otherwise contradicted, represents a significant EPL (employment practices liability) exposure for housing authorities and other governmental bodies in the state of Florida. There is a four-year statute of limitations applicable to 42 U.S.C. § 1983 suits in the state of Florida. Accordingly, job applicants who have been denied employment by a public entity within the past four years for either refusing to take or failing a pre-employment drug test potentially will have a claim for damages against said entity for the violation of their Fourth Amendment rights. Further, there is significant incentive for plaintiff’s counsel to pursue such claims due to the availability of a separate attorney’s fee award pursuant to 42 U.S.C. § 1988.

Although there is not much that can be done now to remedy past practices, until there is further direction from the courts on this issue, we recommend that each housing authority carefully review the future application of its drug testing policy and, if necessary, amend it to comply with the above case law. Although pre-employment drug testing for true safety-sensitive positions is still acceptable, an across-the-board policy of testing all job applicants would not be lawful, based upon the analysis contained in the Voss decision. Additionally, without specific authority, we also caution against a blanket policy of testing all employees post-accident, absent reasonable suspicion that drug or alcohol use caused or contributed to the occurrence of the accident. While post-accident testing may be authorized by certain licensure (commercial driver license) or by contract (collective bargaining agreement), absent such authority, suspicionless testing of public employees just because they were involved in an accident will likely run afoul of the constitutional protections described in Voss.

Finally, we advise that you contact your housing authority’s attorney for individualized advice about your specific personnel policies and practices.

 

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