In a recent decision, the United States District Court for the Southern District of Florida ruled that Key West's pre-employment drug testing policy as applied to an applicant for a non-safety sensitive position was unconstitutional under the Fourth and Fourteenth Amendments of the United States Constitution as an impermissible violation of the right to privacy. In reaching this result, the court noted that in order to be reasonable under the Fourth Amendment, a "search" which includes a urinalysis must ordinarily be based on an individualized suspicion of wrongdoing or on a special need or interest of the employer beyond the normal need for "law enforcement" or "crime detection."
In examining the facts in the Key West case, the court ruled that the City had failed to show a special need or interest nor had the City shown that the position in question, Solid Waste Coordinator, was safety sensitive. Accordingly, the City's pre-employment drug testing policy was struck down by the court.
The lesson learned from this decision for public employers in Florida is that a requirement that all applicants for a position pass a drug test may not survive a legal challenge. As a result, public employers that wish to drug test applicants should consider confining the testing to applicants for positions that are clearly safety sensitive such as police officers and fire fighters. The case is Karen Cabanas Voss v. City of Key West, Case No. 13-10106-CV-King (S.D. Fla. May 9, 2014).