VII (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
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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