“The U.S. Constitution does not prohibit drug testing of employees. However, in the U.S. Supreme Court case of Treasury Employees v. Von Raab, 489 U.S. 656 (1989), the high court ruled that requiring employees to produce urine samples constituted a “search” within the meaning of the Fourth Amendment to the U.S. Constitution. Therefore, all such testing must meet the “reasonableness” requirement of the Fourth Amendment (which protects citizens against “unreasonable” searches and seizures). The Court also ruled that positive test results could not be used in subsequent criminal prosecutions without the employee’s consent. The other major constitutional issue in employee drug testing involves the Fifth Amendment (made applicable to the states by the Fourteenth Amendment), which prohibits denial of life, liberty, or property without “due process of law.” Since the majority of private-sector employees in the United States (excepting mostly union employees) are considered “at-will employees,” an employer need not articulate a reason for termination of employment. However, under certain circumstances, the denial of employment or the denial of continued employment based on drug test results may invoke “due process” considerations, such as the validity of the test results, the employee’s right to respond, or any required notice to an employee. Finally, under the same constitutional provisions, persons have a fundamental right to privacy of their person and property. Drug testing, although in itself deemed legal, may be subject to constitutional challenge if testing results are indiscriminately divulged, if procedures for obtaining personal specimens do not respect the privacy rights of the person, or if testing is unnecessarily or excessively imposed.”
Which is why Governor Scott was, indeed, ordered to cut it out and to stop giving state government workers a whiz quiz: “U.S. District Judge Ursula Ungaro ruled on Wednesday that suspicionless drug testing testing for state workers violated the Constitution’s Fourth Amendment ban on unreasonable search and seizure”.
“The Governor can’t order the state to search people’s bodily fluids for no reason — the Constitution prohibits that sort of government intrusion,” Howard Simon, director of the Florida ACLU, said in a statement. “And the Governor can’t demand that people surrender their constitutional rights for the privilege of working for the state or receiving some other government benefit.” [...] Derek Newton, a spokesman for the Florida chapter of the ACLU, suggested in February that his group would be happy to sue again: ”We have gone to court twice in the last year to challenge suspicionless drug testing,” Newton said, “and if the state continues to enact policies to require people to be subject to government search and seizure without suspicion, I would not be surprised at all if that’s something we continue to oppose.” (source)
It is “unfashionable” to point out that a lot of these drug testing schemes, in addition to being very profitable for certain corporations and individuals with a financial stake in those businesses, operate on the old and well-debunked Reagan-era myth of the “Welfare Queen” who is always presumed to be both a person of color and someone taking advantage of a broken welfare system to avoid working for a living. In truth, the average welfare recipient is a white mother in the suburbs who remains on welfare about two years and is actively searching for employment (and this is partially true because there are more white people in general). Why is it unfashionable: Because when you say something sounds problematic and racist, conservatives clutch the pearls and act offended. Well, boo hoo. Stop being racist, then. Problem solved! The idea is that lazy people of color are using “your” taxpayer dollars (it is always assumed that “those people” do not also pay taxes) to avoid work while getting high on illegal drugs, but the truth is that this is bunk and it is not-so-thinly-veiled racism. I, for one, do not want my tax dollars to go towards programs that intend to punish people on welfare for using drugs (when they are less likely to be doing so, and when I have to contribute towards the cost of drug testing) when it is simpler to just help pay for welfare for the needy and not add yet another hurdle to the process that is designed to shame, scapegoat, reinforce racial stereotypes that aren’t even remotely accurate, and make it more difficult to get assistance when it is needed. Also, full disclosure, here: I have never had an employer that required me to pee in a cup. (I would have passed, incidentally…unless I had the misfortune to be the victim of a false positive.) I would be very wary of working for an employer that required an unnecessary piss test, frankly. You’d have to justify it very clearly, such as if I were applying to be a drug addiction counselor or if I were to be working with heavy machinery or driving a bus or train or flying a plane, in which case, it is not entirely unreasonable to insist on testing to ensure sober employees. I am not sure a guy working at Taco Bell needs to pee in a cup to prove he is capable of making me a Chalupa.