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Home My WebLink AboutVII (C) Adoption of Resolution No. 2002-04 Relating to the Drug Free Workplace Policy Agenda 3-19-02 Item VII C "CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" MAYOR•COMMISSIONER O\ Ocoee ■/y S.SCOTT VANDERGRIFT ./, CITY OF OCOEE COMMISSIONERS _ a - DANNYHOWSO Q 150 N.LAKESHORE DRIVE p SCOTT ANDERSON Pf V OCOEE,FLORIDA 34761-2258 RUSTY JOHNSON y1 (407)905-3100 NANCY J.PARKER 9 G00'C` Cm MANAGER JIM GLEASON MEMORANDUM TO: The Honorable Mayor and Members of the Commission FROM: Fran Diedrich, Human Resources Director DATE: March 19, 2002 SUBJECT: Job Applicant Drug Testing Attached please find an opinion letter from Terri L. Thomas, with the law offices of Allen, Norton, and Blue. This letter explains that we have a possible liability when we perform pre-employment drug testing on applicants who's job are not defined as"safety-sensitive"or who are not required to maintain a Commercial Driver's License (CDL) as part of their job description. Positions with the City of Ocoee that would be considered "safety sensitive"for purposes of job applicant drug testing would be sworn Police positions, sworn Firefighter positions, Communications Operator, Communications Supervisor, Lifeguard, and School Crossing Guard. This list may be expanded if new positions are added that could be considered "safety sensitive"as determined by the Human Resources Director. Based on this opinion and after review by the Human Resources Director as to practice by other municipalities, we are recommending revision of the City's Drug-free Workplace Policy, Resolution 95-21. cc. Jim Gleason, City Manager POW" 2t ¢IO:or • s kas, PR Agenda 2-07-02 MFR —Item No. 6 "CENTER OF GOOD LIVING.PRIDE OF WEST ORANGE" MAYOR"COMMISSIONER �� _ 'e' S.SCOTT VANDERGRIFT _° CITY OF• ° OCOEE v o4 150 N. LAKESHORE DRIVE COMMISSIONERS DANNY HOWELL 4� OCOEE,FLORIDA 34761-2258 SCOTT ANDERSON fRI JJY" ,,�? (407)905-3100 RUSTY JOHNSON OF coo NANCY I.PARKER CITY MANAGER MEMORANDUM TO: James Gleason, City Manager Jinn GLEASON FROM: Fran Diedrich, Human Resources Director '.-C DATE: February 4, 2002 SUBJECT: Job Applicant Drug Testing Attached please find an opinion letter from Terri L. Thomas, with the law offices of Allen, Norton, and Blue. This letter explains that we have a possible liability when we perform pre-employment drug testing on applicants who's job are not defined as"safely-sensitive"or who are not required to maintain a Commercial Driver's License (CDL) as part of their job description. Based on this opinion and after review by the Human Resources Director as to practice by other municipalities, we are recommending revision of the City's Drug-free Workplace Policy, Resolution 95-21, Exhibit A as follows: FROM - Job Applicant Testing: All applicants for a position with the City of Ocoee will be tested and a refusal to submit or a positive confirmed test result will be used as a basis to reject the applicant for employment at that time. TO - Job Applicant Testing: Applicants for positions with The City of Ocoee whose positions are considered safety-sensitive or require a Commercial Driver's License(CDL)will be tested and a refusal to submit or a positive confirmation test will be used as a basis to reject the applicant for employment at that time. Positions with the City of Ocoee that would be considered "safety sensitive"for purposes of job applicant drug testing would be sworn Police positions, sworn Firefighter positions, Communications Operator, Communications Supervisor, Lifeguard, and School Crossing Guard. This fist may be expanded if new positions are added that could be considered "safety sensitive"as determined by the Human Resources Director. if the recommendation is satisfactory, we request that the Resolution 95-21,"Exhibit A"be reviewed and revised by the City Attorney then placed as an item for review and approval on the next available City Commission agenda. t r, cc. Paul Rosenthal, City Attorney Jean Grafton, City Clerk Point Protect acoee's Water Resources 'x 12/2742001 16:10 FAX 8132532006 ALLEN NORTON&BLUE a 002 LAw OFFICES ALLEN,NORTON& BLUE PROFESSIONAL ASSOCLATION NIHI WIRE ORLANDO OFFICE TALLARAnEE OFFICE EARN,OFFKF SLIME]W SIGNATURE PLAZA,SUITE SOO QUITE 1Oo HVOE PARE REALE SURE MO ]I 201 SOUTH OMNOE AvENYE G®NORTH MONROESTNEET 34 SORTN LAYER PERKAYFNUE CORAL GABLES,FLORIDA 33134 ORLAFDO,FLORIon 32801 TALLMNA56ee,FLoRIDA32303 TAMPA,FLORn1A 33606 I05:446.I1e1 407/54 M11 Osw•AI-Wd a412510210 FACSIMILE vdW1.198 FACSIMILE 107I22.7IR FACSIMILE 5511IXImv FACSIMILE b3//s12DM REPLY TO: Tampa December 27, 2001 CONFIDENTIAL - Not subject to public diaddeure under Florida Statute 447.605(1) Ms. Francenia P.Dietrich end/or(3)relating to collective bargaining. Human Resource Director City of Ocoee 150 North Lake Shore Drive Ocoee,FL 34761 Re: Job Applicant Drug Testing Dear Fran: This opinion letter is in response to your recent inquiry concerning the legality of the City's current policy that allows the City to drug test all job applicants. Recently,the Southern District of Florida issued a decision in Beanie v. City of Hollywood that addressed the constitutionality of such a policy (a copy of the decision is attached for your review)! The City of Hollywood's drug testing policy was similar to Ocoee's policy insofar as it required applicants for any position to submit to a blood or urine test prior to employment. The court nlled that, in the absence of any reasonable suspicion of illegal drug use,testing applicants for jobs that are not"safety sensitive"violated the Fourth Amendment! While the court did not go into a discussion of which jobs within a city would or would not be considered safety-sensitive', the decision clearly held that drug testing all applicants regardless of their job classification is unconstitutional. While the Beattie decision is not controlling precedent in your jurisdiction, it will nonetheless be considered as persuasive authority by other federal district courts in Florida and the Eleventh Circuit. Consequently, it is our opinion that the City's current drug testing policy could be found unconstitutional if challenged in light of Beanie. However, the City may permissibly ' The Fourth Amendment to the United States Constitution prohibits unlawful search and seizures. 1 This determination in made on a case-by-case basis,after evaluating the duties and other relevant factors of the particular position in question. 61174 I.DOC 12/27/2001 16:19 FAX 8132532006 ALLEN NORTON&BLUE e000 December 27, 2001 Page 2 conduct job applicant drug testing of individuals who apply for safety-sensitive positions without facing potential liability for constitutional violations' Similarly, the City may test certain job applicants in accordance with the regulations promulgated by the Department of Transportation. If you have any questions or concerns about any of the foregoing,please feel free to contact either myself or Reynolds Allen at the Tampa number listed above. Sincerely, • "``^^^^��"'" "` Terri L. Thomas TLT/wra (Enclosure) cc: Mr. Jim Gleason This practice is also in accordance with Florida's Drug-Free Workplace Act requirements. Specifically,Florida Statute § 440.102(4)(a)(1)defines"job applicant drug testing"as follows: An employer must require job applicants to submit to a drug test and may use a refusal to submit to a drug test or a positive confirmed drug test as a basis for refusing to hire a job applicant However, the statute further defines "job applicant"as: For a public employer, job applicant'means only a person who has applied for a special-risk or safety sensittve position. Thus, pursuant to the language of the statute,public employers are only required to conduct pre- employment drug tests for safety-sensitive positions in order to comply with the statutory requirements. 611]4 I.DOC ALLEN,NORtON&BLUE.P.A. PROCESSIONAL ASSOCIATION RESOLUTION NO. 2002-04 A RESOLUTION OF THE CITY OF OCOEE, FLORIDA, REVISING EXHIBIT A OF RESOLUTION 95-21 RELATING TO THE DRUG-FREE WORKPLACE POLICY ADOPTED OCTOBER 17, 1995 BY DEFINING THE POSITIONS THAT WILL REQUIRE PRE-EMPLOYMENT TESTING; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Ocoee has previously approved adopted, and implemented a Drug-Free Workplace Policy, and WHEREAS, the City Commission desires to change the definition of the positions that will require pre-employment testing. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA AS FOLLOWS: SECTION ONE: The City Commission of the City of Ocoee, Florida has the authority to adopt this Resolution pursuant to Article VIII of the Constitution of the State of Florida and Chapters 166 and 440.102, Florida Statutes. SECTION TWO: Amendment of Definition of the Positions that will Require Pre-employment Testing. The City Commission hereby amends the definition of the positions that will require pre-employment testing as set forth in Exhibit "A" of Resolution No. 95-21 as follows: (Additions are double line underscored.) Job Applicant Testing: Applicants for positions with the City of Ocoee whose positions are considered safety-sensitive or require a Commercial Driver's License (CDL) will be tested and a refusal to submit or a positive confirmation test will be used as a basis to reject the applicant for employment at that time. SECTION THREE: Conflicts. All Resolutions or parts thereof in conflict 006.192128.1 with this Resolution are hereby repealed to the extent of any conflict. SECTION FOUR: Severability. If any section, subsection, sentence, clause, phrase or portion of this Resolution is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. SECTION FIVE: Effective Date. This Resolution shall become effective immediately upon passage and adoption. PASSED AND ADOPTED this day of , 2002. APPROVED: ATTEST: CITY OF OCOEE, FLORIDA Jean Grafton, City Clerk S. Scott Vandergrift, Mayor (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA. COMMISSION AT A MEETING APPROVED AS TO FORM AND HELD ON THE ABOVE DATE LEGALITY THIS DAY OF UNDER AGENDA ITEM NO. , 2002. FOLEY & LARDNER By: City Attorney 006.192128 _2