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Ohio Supreme Court Upholds Drug Testing Under "Direct-Observation" Method

The Ohio Supreme Court, in Lunsford v. Sterilite of Ohio, L.L.C., 2020-Ohio-4193, recently addressed the issue of whether an at-will employee has a cause of action for invasion of privacy as a result of his or her employer's use of drug testing under a "direct-observation" method.

The Court, in a 4-3 decision, said no.

In Lunsford, under the employer's drug testing policy, there were three circumstances in which the employer could exercise its discretion to require an employee to submit to a drug test: 1) while investigating a workplace accident or incident; 2) reasonable suspicion that an employee may be impaired; or 3) randomly at periodic intervals. The policy also specified that urinalysis was to be used, but was silent on how the urine sample would be collected. Furthermore, any employee who refused to take the test was subject to immediate termination.

The third-party who administered the employer's drug testing policy, at the employer's direction, utilized a "direct-observation" method in which a same-sex monitor was required to accompany the employee to the restroom and visually observe the employee produce the sample. This was a change from the employer's previous policy - which did not require the direct-observation method. Notably, employees were not informed of this change.

The four plaintiffs in Lunsford were required to submit to a drug test and each complied with the request. At the beginning of the testing process, each signed a "Consent and Release" form, whereby each gave their consent to the third-party lab to "perform any testing necessary to determine the presence and/or level of drugs in my body" and for the third-party to release these results to the employer. The employees were not notified of the method in which their sample would be collected until they reported to the restroom. Nonetheless, after being informed that the "direct-observation" method would be used, each employee proceeded with the test.

The employees thereafter brought suit alleging, among other causes of action, a common law invasion of privacy claim. The trial court granted the employer's motion to dismiss, but the Fifth District Court of Appeals reversed, holding that the employees had stated a valid claim for invasion of privacy. The Ohio Supreme Court accepted a discretionary appeal from the employer.

While recognizing that workplace drug-testing policies implicate an employee's privacy interests, the Court, under the facts of this case, determined that the employees' could not sustain their common law invasion of privacy claim because the employees had "consented by their action."

The Court noted that consent is generally an absolute defense to an invasion of privacy claim and that an employee who consents to drug testing cannot claim that the testing was highly offensive and invaded his or her right to privacy. Here, it was determined that "when [the employees] individually reported for the collection of their urine samples, they were advised by the same-sex monitor that the direction-observation method would be used * * * and * * * consented by their action." In other words, because the employees submitted to the testing under the direct-observation method, they consented and lost any potential claim of invasion of privacy.

In a strong dissent, Justice Stewart, joined by Chief Justice O'Connor and Justice Donnelly, disagreed with the majority opinion, noting that it would strain the meaning of the word "consent" to suggest that the employees consented under the circumstances in this case (i.e., submit to the direct-observation method or risk immediate termination).

Based on the majority's opinion, it is unclear whether the employees would have had an actionable invasion of privacy claim if they refused to submit to the drug test under the direct-observation method and were terminated for that refusal. The main takeaway for employers, however, should be the footnote in Justice Stewart's dissent in which she states that "there would be no issue regarding consent if [the employer's] drug-testing policy involved notifying its new employees at the time of their hiring that its policy included the use of the direct-observation method for collecting urine samples" or notifying all employees when the employer decided to institute the direct-observation method.

Thus, the lesson for employers is simple: your drug-testing policy should be specific, covering all aspects of the process, including when tests can be administered, who administers them, how they are administered, and the ramifications of a refusal or positive test.

Employers with questions are advised to consult with their legal counsel regarding specific questions or concerns. If you have any questions, or need assistance, please feel free to contact Jeremy D. Iosue or Jason T. Hartzell at (216) 651-0451.

This Employment Law Alert may provide an overview of specific federal and/or state laws and regulations. It is not intended to be, and should not be construed as, legal advice for any particular situation or individual.

Copyright © 2020 Stefanik Iosue & Associates, LLC. All rights reserved.



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