Litigation that began over a 2011 Executive Order (11-58) by Florida Governor Rick Scott requiring drug tests for all prospective employees and random tests for employees at all state agencies subject to gubernatorial control — about 85,000 (77 percent of all state workers) — appears to be ending. A notice of settlement has been filed by the parties in federal district court in Miami.  The agreement applies to employees in union bargaining units.

Pursuant to the settlement, the Governor reportedly may conduct random testing among certain state employees, in 157 job classes across 10 state agencies, such as certain health care workers, including nurses, engineers, park rangers, electricians in the State transportation department, heavy equipment operators and classroom teachers working with the Florida Agency for Persons With Disabilities – an estimated 7,000 in all, represented by AFSCME Council 79, the plaintiff in the action.  The union represents more than 40,000 state workers that would have been affected by the Order.  The state will also pay the union $375 thousand in attorney’s fees and legal costs under the agreement.  The settlement stipulation awaits approval by a federal judge.

The union had challenged the Governor’s executive order on Fourth Amendment grounds.  In 2012, a federal district court had granted summary judgment to the union, agreeing that the order was unconstitutional.  The Eleventh Circuit court of appeals in Atlanta, however, vacated that ruling.  In its 2013 decision, the appellate court said that while the Governor’s directive appeared to sweep too broadly in violation of the Fourth Amendment proscription on unreasonable searches and seizures – it was not persuaded the order could be applied constitutionally to all 85,000 workers – the lower court’s testing ban also went too far.  The circuit court sent the case back, instructing the district court to limit its injunction only to those groups where the State could not show a “heightened interest” to justify the mandatory testing, such as employees in safety-sensitive positions.  The appeals court ordered the parties to prepare a list of jobs that could be subject to the testing.  The Governor sought review of the appeals court decision by the Supreme Court.  Earlier this month, however, the Supreme Court denied the Governor’s petition.

A spokesperson for the Governor said, “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.”