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Urine sample taken by direct observation method not common-law invasion of at-will employees’ privacy

By Thomas K. Lauletta, J.D.

Because employees were at-will employees under Ohio law, and they did not object to the urine test when administered, they could not argue that their consent was involuntary because of their fear of termination for refusing to take the test.

A district court properly dismissed a complaint by employees who alleged that their employer’s requirement that they submit to a urine sample by the direct observation method violated their common-law privacy rights, ruled a divided Ohio Supreme Court in a 4 to 3 decision. The employees had signed a consent to drug testing upon employment, and another written consent immediately before administration of the urine test under the direct observation of a same-sex monitor. Accordingly, because of this consent, and the fact that Ohio’s employment-at-will doctrine allowed the employer to terminate the employees for any reason that is not contrary to law, no facts existed to deny the employer’s motion to dismiss. Justice Stewart filed a separate dissenting opinion, joined by Chief Justice O’Connor and Justice Donnelly (Lunsford v. Sterilite of Ohio, L.L.C., August 26, 2020, Kennedy, S.).

Urine sample test. The employer, a private company, has a workplace substance abuse policy under which employees could be required to submit to a urine sample test to disclose the use of illegal drugs or improper use of prescription or over-the-counter drugs. Such samples could be required at random at intervals. Upon being hired, new employees were required to agree to this policy, although the agreement was silent on how the urine sample was to be taken. An employee could be fired for refusing to submit a urine sample within two and one half hours after being directed to do so.

In this dispute, four employees sued based on their employer’s first use of the direct-observation method for urine testing, whereby a same-sex monitor observed their urination. Immediately prior to the testing, all of the employees signed an agreement which did not specifically consent to the direct-observation method. The employees submitted to the test but later sued contenting that their common-law rights of privacy had been violated.

Invasion-of-privacy claim. The trial court granted the employer’s motion to dismiss, ruling that Ohio does not recognize an invasion-of-privacy claim by an at-will employee based solely on an employer’s use of the direct-observation method during drug testing, particularly when the at-will employee agreed to be tested as a condition of employment. The Ohio Court of Appeals reversed, holding that the employees had stated a valid claim for invasion of their privacy.

Employment-at-will doctrine. The Ohio Supreme Court reversed, reinstating the grant of summary judgment against the employees’ complaint. The state high court observed that under Ohio law either party to an at-will employment contract can terminate the employment relationship for “any reason which is not contrary to law.” Here, the employees did not dispute the employer’s substance abuse policy; only that it was carried out by the direct-observation method during the collection of the urine sample. The court concluded that the extent of the employees’ privacy rights must be determined within the context of their status as at-will employees.

The employees argued that in absence of just cause an at-will employer may not use the “highly offensive” direct-observation method to administer a workplace substance-abuse policy. As an initial matter, the court noted that the employees’ complaint was based on a common-law right to privacy, rather than the Ohio Constitution or statutes. It stated that to survive the employer’s motion to dismiss, they would have to demonstrate that the employer intruded into a matter that the employees had a right to keep private and that the method of the intrusion would be considered highly offensive to a reasonable person.

Although the court recognized that workplace drug-testing policies implicate employees’ privacy interests, it held that the employees here had consented to the direct-observation method of urine testing. According to the court, this consent was demonstrated by the employees’ failure to refuse the test when they were informed that a same-sex monitor would observe their production of the urine samples. Because the employer had the legal right to terminate their employment at any time, the employees’ argument that their consent was involuntary because of their fear of termination was not relevant. The employees thus had no cause of action for common-law invasion of privacy. Accordingly, the Court reversed the judgment of the appeals court, and reinstated the judgment of the trial court that granted the employer’s motion to dismiss.

Dissent. In a dissenting opinion, Justice Stewart, joined by Chief Justice O’Connor and Justice Donnelly, offered a different view regarding the appropriate analysis of the invasion of privacy assertions, of the employees’ consent, and the at-will employment standards. The dissent argued that the employer’s drug testing procedure, which required employees to expose their genitalia to a stranger while they provided their urine samples, was so humiliating to a person of normal sensibilities so as to constitute an invasion of privacy. According to the dissent, the employer had not shown why this highly intrusive method of testing needed to be used. Thus, a reasonableness of the employer’s use of this method presented a factual question that was not amenable to resolution by grant of a motion to dismiss.

Moreover, the dissent argued that the at-will-employment doctrine did not diminish the employees’ expectation of privacy. Even if this doctrine applied to the facts of this case, an at-will employee cannot be terminated for a reason that is contrary to public policy, here the employees’ right to obtain redress for violation of their privacy rights. Thus, in the dissent’s view, a dismissal of the employees’ complaint was improper because there existed the factual question of whether the employer had a legitimate reason to use the direct-observation method.