The costs of drug-testing may cancel out the state's insurance breaks, says Robert Fleigelman, chief operating officer of the Occupational Medical Centers of America, who cites as clients the cities of Hollywood, Hallandale, Dania Beach, Davie, Pembroke Pines, and Cooper City. He estimates that his burgeoning Broward company conducts 60 to 80 drug tests a day at $35 to $45 apiece. This may seem steep, but Fleigelman wagers that it hardly compares to the toll that not weeding out drug users would take on productivity, safety, and the cost of health coverage.
Employee drug-testing may be far from a return to the finger-pointing of Salem or the fulfillment of eerie 1984 predictions. Perhaps more telling symptoms of the current climate are widening cracks in Fourth Amendment protections that expose the drug paranoia behind some court decisions. Michael Masinter, a professor of employment discrimination and civil rights litigation at Nova Southeastern University's Shepard Broad Law Center, says although he hopes ACLU will win Baron's case, he can't muster up much optimism. "There's a general sense that, where drugs are involved, the Fourth Amendment doesn't apply."
Yet Hess draws encouragement from Chandler v. Miller, a 1997 Supreme Court decision in favor of Libertarian Party nominees who fought a Georgia statute requiring candidates for state office to be drug-tested. The mainly symbolic, image-conscious interests of the state were not weighty enough to override constitutional constraints on unreasonable searches by government.
In delivering the court's opinion in Chandler v. Miller, Justice Ruth Bader Ginsburg quoted the "path-marking dissenting opinion" of Olmstead v. United States (1928), in which Justice Louis Brandeis argued against the use of evidence obtained through an unlawful government wiretap in a criminal proceeding. "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent.... The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."