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A federal district court erroneously enjoined Florida Governor Rick Scott’s (R-Fl) Executive Order (No. 11-58) mandating pre-employment drug testing for all prospective new hires and random drug testing of all state employees within each agency, the US Court of Appeals in Atlanta has held. The Executive Order allowed Florida’s 85,000 state employees to be tested at least quarterly. The district court granted an injunction against the random testing of all state employees, although it did not inquire into which employees, if any, might be employed in “safety-sensitive jobs,”… and despite the fact that the union which, brought the challenge conceded that at least one of the 85,000 was engaged in a “high-risk safety-sensitive job.” (It did not address the pre-employment testing.) The Court of Appeals said that such a facial challenge to the Executive Order was justifiable only if there were no circumstances in which it could be applied in a constitutional manner. Otherwise, the Court said, the challenge would have had to been brought on an “as applied” basis – examining each job to see whether suspicionless, random drug testing might be warranted on a “special needs” basis, generally meaning that the job is safety-sensitive.

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