A federal judge's ban on Gov. Rick Scott's plan to randomly test thousands of state workers for illegal drugs may have been too broad because it failed to carve out exceptions for law enforcement and other sensitive positions, a panel of U.S. appeals judges indicated Friday.
Although no ruling was immediately issued, the three-judge panel of the 11th U.S. Circuit Court of Appeals said at a hearing the case could be sent back to the lower court for a new, narrower order. The decision last year by U.S. District Judge Ursula Ungaro found Scott's executive order requiring drug testing for some 85,000 workers unconstitutional as an unreasonable search under the 4th Amendment.
U.S. Circuit Judge Stanley Marcus, however, said previous U.S. Supreme Court decisions have established a government's right to mandate random drug testing without suspicion of wrongdoing for employees such as police, operators of heavy machinery and aircraft, and those who work closely with children.
"If you want to cover everybody, that fails," Marcus said. "You can test at least some of them."
The hearing was held to consider Scott's appeal of the Ungaro order, which came last April in a challenge to the drug testing program by the American Federation of State, County and Municipal Employees Council 79 and the American Civil Liberties Union. The labor union represents about 40,000 of the affected employees.
As initially fashioned by the Republican governor, the program would have covered all employees and job applicants in executive branch agencies — or about three-quarters of all state employees.
Scott attorney Jesse Panuccio conceded that the original order did cover all employees and did not single out those in sensitive positions. The reasoning, he said, was that ensuring a drug-free workplace was important for "safety, productivity and efficiency" in state government.
Marcus, however, said such a blanket testing program was probably unconstitutional.
"Is there any compelling need to drug test a file clerk?" the judge asked.
Attorney Shalini Goel Agarwal, representing the ACLU, said the Scott order affected "a huge number of employees who are not safety-sensitive," but she conceded some testing of those workers is permissible.
"We don't dispute that," she said.
Scott suspended his drug-testing executive order shortly after it came under legal challenge, except for Department of Corrections employees. The appeals judges did not indicate when they would rule.
The same court just last month upheld a temporary ban on a law requiring drug testing of Florida welfare applicants, which Scott has said he will appeal to the Supreme Court. The 11th Circuit's decision in that case said the state had not shown "substantial special need" for a mandatory testing program with no suspicion that an individual was using drugs.
However, that ruling only halts the law temporarily until another federal judge decides the constitutionality of the welfare drug testing program.