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FL county’s anti-nicotine hiring policy may be unconstitutional

By   /   September 10, 2013  /   News  /   7 Comments

By William Patrick | Florida Watchdog

TALLAHASSEE — When Flagler County’s Board of Commissioners voted unanimously last month to ban job seekers who use tobacco — even outside of work — they may have bitten off more than they care to chew.

American Civil Liberties Union of Florida says Flagler County’s tobacco ban likely is unconstitutional.

MORE THAN THE LEAF: Florida's Flagler County bans all nicotine, not just tobacco. And that could be unconstitutional, a civil liberties group says.

MORE THAN THE LEAF: Florida’s Flagler County is requiring all new hires to submit to nicotine tests. But that may be unconstitutional, a civil liberties group says.

“There’s certainly Fourth Amendment privacy problems with this policy,” Baylor Johnson, the ACLU of Florida’s media relations manager, told Florida Watchdog in a phone interview.

The civil liberties organization successfully challenged an overly broad drug testing policy in Defuniak Springs earlier this year.

But testing for nicotine as a pre-condition of government employment could present an even clearer constitutional violation.

As Florida Watchdog reported last week, Flagler County’s zero-tolerance tobacco ban is much more than a smoke-free workplace policy.

As opposed to targeting smoking while on the job, beginning Oct. 1, would-be workers and new hires will face a much broader restriction that applies outside of work and even into one’s past.

New hires must sign an affidavit stating they have not used tobacco for at least a year prior to their employment date. And for the purposes of securing a job, “tobacco” means anything that would produce nicotine.

Refusal to take a nicotine test will have the same result as a failed test — no job.

A failed test will bar an applicant from being considered for a job with the county for one year. Testing positive for nicotine after employment could lead to immediate dismissal.

But the testing, the key piece of Flagler’s new policy, could constitute an illegal search.

“When you’ve got a situation like this where you are subjecting all of these people to searches based on no suspicion, it’s very troubling,” Johnson said.

Not to mention, nicotine is legal.

“Most of the time when this is talked about it means that the government cannot search you without suspicion of a crime. But in this case, it’s about searching without even the suspicion that you might be engaging in illegal activity,” Johnson said.

Joseph Mayer, Flagler County’s community services director, said the “tobacco free workforce” policy is aimed at reducing health care costs.

Other local governments such as the cities of Delray Beach, Atlantic Beach and Hollywood have similar bans.

But according to WFSU, the city of Hallandale Beach hasn’t realized any savings since enacting its tobacco ban in 1995.

The City of North Miami also had a similar anti-tobacco hiring policy but overturned it in 2003 because it led to a reduction in qualified applicants.

Florida Watchdog contacted the Florida Association of Counties to inquire whether other counties are considering similar policies, but was told the organization does not track that information.

Short of a local government rescinding its own tobacco-free workforce measure, such hiring bans can only be challenged by those who have been subjected to them.

“If there is someone in Flagler County who doesn’t feel they should have to submit their bodily fluids for approval by the Board of County Commissioners before they can begin employment there then they should contact us,” said Johnson.

Mayer told Florida Watchdog that he was not aware of any legal challenges at this time.

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William Patrick is Watchdog.org’s Florida reporter. His work has been featured by Fox News, the Drudge Report, and Townhall.com, as well as other national news and opinion websites. He’s also been cited and reposted by numerous state news organizations, including Florida Trend, Sunshine State News and the Miami Herald, and is a member of Investigative Reporters and Editors and the Florida Press Association. William’s work has impacted discussions on education, privacy, criminal justice reform, and government and corporate accountability. Prior to joining Watchdog, William worked for the James Madison Institute in Tallahassee, Fla. There, he launched a legislative news website covering state economic issues. After leaving New York City in 2010, William worked for the Florida Attorney General’s Office where he assisted state attorneys general in prosecuting Medicaid Fraud. William graduated magna cum laude from Hunter College, City University of New York. He lives in Tallahassee with his wife and three young children.

  • rolgor

    Big Brother is watching YOU! Be good comrade.

  • lilchit

    Drinking hurts more people then smoking. Don’t hire anyone who drinks and 99% of Fl will be out of work

  • TheInvisibleHand

    Someone needs to challenge this and get this discriminatory policy declared unconstitutional…plus, suing for emotional distress 🙂

  • Elaine

    Too bad this law wasn’t around when BO ran for office. He wouldn’t be President now!

  • Fr. Jack Kearney

    Any nicotine rules you out? No ecigs? Bad pharmacology, bad law!

  • liz

    99% in most states would be out of work , the tickets written for drinking and driving plus intoxicated in public brings a lot of revenue to states not counting the lawyers. Smoking doesn’t even though prices have gone up because of taxing. I personally do not smoke but it is not illegal, just another right stomped on.

  • needaJob

    Marion County has the policy of being 12 months tobacco free to apply for a county job.