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Workers Cannot Claim Invasion of Privacy after Direct-Observation Urine Tests

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Court rules workers submitting urine tests under “direct-observation” cannot sue employer for invasion of privacy.

Image of a lab worker wearing nitrile gloves working with test tubes

Court rules workers submitting urine tests under “direct-observation” cannot sue employer for invasion of privacy.

When workers at a private company provide urine samples for drug testing under the “direct-observation method” they cannot sue their employer for invasion of privacy, the Ohio Supreme Court ruled today.

In a 4-3 decision, the Supreme Court reversed a Fifth District Court of Appeals decision, which found two current and two former Sterilite of Ohio employees had stated a “valid claim for invasion of privacy“ based on the use of the “direct observation method” as part of Sterilite’s mandatory substance-abuse testing procedures.

Writing for the Court majority, Justice Sharon L. Kennedy noted that once the Sterilite employees proceeded with the drug test under the direction-observation method, without objection, they consented to the test by producing or attempting to produce urine.

“When an at-will employee consents, without objection, to the collection of the employee’s urine sample under the direct-observation method, the at-will employee has no cause of action for common-law invasion of privacy,” she wrote.

Justices Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined Justice Kennedy’s opinion.

In a dissenting opinion, Justice Melody J. Stewart wrote the employees were given the choice to submit to a highly offensive test or be terminated on the spot, which is no choice at all. She wrote the employees sufficiently alleged that Sterilite coerced them to “submit to the humiliation of having their genitalia directly observed,” and they have a valid invasion of privacy claim.

Chief Justice Maureen O’Connor and Justice Michael P. Donnelly joined Justice Stewart’s dissent.

Company Changes Testing Method
As a private company, Sterilite has a workplace substance-abuse policy, which requires all employees to submit to drug testing as a condition of employment. Sterilite’s policy notified employees they could be required to submit to drug testing under three circumstances:   investigating a workplace accident or incident; when there was reasonable suspicion an employee was impaired by drugs or alcohol; and random, periodic testing.

Under the policy, a supervisor informs an employee when and where to report for testing. An employee who does not produce a valid urine sample within two-and-a-half hours is considered to have refused to take the test and is subject to immediate termination. An employee who tests positive for illegal or prohibited drugs is subject to disciplinary action, which includes termination.

Sterilite hired U.S. Healthworks Medical Group of Ohio to administer the workplace drug testing program. In October 2016, U.S. Healthworks began collecting urine samples under the direct-observation method, in which a same-sex monitor would accompany the Sterilite employee to the restroom to visually observe the employee produce a urine sample.

Employees Selected for Testing
Donna Lunsford, Peter Griffiths, and Laura Williamson were selected for random testing in October and November 2016. Adam Keim was tested in October 2016 based on the policy’s reasonable-suspicion-of-impairment provision. The four reported to the designated testing area where each of them signed a consent form provided by U.S. Healthworks. The employees consented to be tested and to have the results released to their employer, but did not know at the time they executed the consent form that their urine samples would be collected under the direct-observation method.

None of the employees had previously submitted a urine sample under direct observation. They were notified that the direct-observation method would be used when they reported to the restroom designated exclusively for urine collection.  Lunsford and Griffiths each produced a valid urine sample. Keim and Williamson alleged they made “good faith efforts” to produce a sample but were unable to do so in the allotted time. Sterilite terminated Keim’s and Williamson’s employment.

Lunsford and Griffiths, who remained employed at Sterilite, joined Keim and Williamson in filing a lawsuit in Stark County Common Pleas Court in December 2016 against Sterilite and U.S. Healthworks for invasion of privacy and other claims.

Sterilite and U.S. Healthworks asked the trial court to dismiss the case. In May 2017, the trial court agreed with the companies, noting that Ohio does not recognize an invasion-of-privacy claim by an “at-will” employee based on the use of the direct-observation method during drug testing, particularly when an employee agreed to be tested as a condition of employment.

The employees appealed to the Fifth District, which reversed the trial court. The companies appealed to the Supreme Court, which agreed to hear the case.

Court Examines Conflicting Principles
The Court accepted three arguments, known as propositions of law, from the companies  and decided the case on one proposition raised by U.S. Healthworks. The testing company maintained that an employee cannot claim invasion of privacy by a testing company administering direct-observation testing when the employee signs a consent form authorizing any testing necessary to determine the presence or level of drugs.

Justice Kennedy wrote the case places two common-law principles – the employment at-will doctrine and the tort of invasion of privacy – in competition with each other. Under the at-will doctrine, an employer or employee can terminate employment for “any reason not contrary to law.”

The majority opinion explained at-will employment is not without limits. It noted state and federal laws prohibit termination for several reasons, including discrimination based on age, sex, race, or disability, and the Court has prohibited terminations for other public policy reasons.   

“[T]he extent of the (employees’) privacy rights must be construed within the context of their status as at-will employees,” the opinion stated. 

The opinion noted the employees did not contest the right of Sterilite to drug test, but objected to the manner it was carried out. They maintained that, without “just cause,” which could include an employee’s past positive test or suspicion of tampering or adulterating a past test, Sterilite invaded their privacy by using the “highly offensive” direct-observation test.  The majority explained that at the core of the controversy, was “the manner in which the policy was carried out—the use of the direct-observation method during the collection of the urine sample.” 

Court Considers Employees’ Actions
The majority opinion noted Ohio has recognized the intentional tort of invasion of privacy for decades, which includes “intrusion upon seclusion.”  Intrusion upon seclusion is the “wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities,” the Court stated.  

The opinion explained that the right to privacy, however, is not absolute and, generally, consent will bar recovery for an invasion-of-privacy claim.

“An employee who consents to drug testing cannot claim that the testing was highly offensive and invaded his or her right to privacy,” the Court stated.   

The employees claimed they did not consent to the test because they did not know they would be subjected to direct observation until after they signed the consent forms and just before they were directed to submit samples. The majority opinion stated that the facts indicated the employees consented. The Court noted the employees consented to testing when they signed the U.S. Healthworks forms, and that when they individually reported for the collection of their urine samples, they were advised by the same-sex monitor that the direct-observation method would be used.

“At that time (the employees) had a second opportunity—consent or refuse—and (the employees) consented by their action” in producing, or making good faith efforts to produce, urine samples, the opinion stated.

The employees argued their production or attempts were not voluntary because their refusal would have been grounds for immediate termination. The opinion stated that under the at-will doctrine, “Sterlite had the right to condition employment on consent to drug testing under the direct-observation method, and (the employees) had the right to refuse to submit to the direct-observation method.”   

Sterilite had the legal right to terminate the at-will employees for their failure to submit, the Court stated. Because of that right, the employees’ argument that their consent was involuntary out of fear of termination necessarily fails, the majority opinion concluded.

Employees Privacy Invaded, Dissent Maintained
Justice Stewart wrote in her dissent that the employees’ claim of invasion of privacy has nothing to do with their status as at-will employees. Invasion of privacy is an intentional tort, and under Ohio public policy, employers cannot commit intentional torts on their employees, she noted.

The dissent noted that Sterilite has offered no reasonable justification for using a direct-observation method over less-intrusive means, which it had used previously. While Sterilite argued that more stringent monitoring procedures were needed to defeat attempts by employees to falsify urinalysis results, it provided no basis for the use of a highly intrusive method, the dissent stated.

The dissent stated the at-will doctrine has no application to the employees’ invasion of privacy claim, but if the at-will doctrine were applied, the employees could not be terminated for failing to submit to the test. The Court has declared that invasion of privacy is against public policy and an employer cannot fire a worker for a reason that is contrary to public policy, the dissent stated.

The dissent accused the majority of distorting the employees’ consent, maintaining the workers had no choice but to agree to an invasion of their privacy or they would be terminated.

“What indignities must an at-will employee suffer to avoid losing his or her income and benefits before the employee has a cause of action for invasion of privacy?” the dissent stated. “Make no mistake, the majority’s decision today will disproportionately affect workers who have no meaningful choice and no recourse of their employers’ intentional torts.”

2018-1431. Lunsford v. Sterlite of Ohio LLC, Slip Opinion No. 2020-Ohio-4193.

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