Tuesday, February 4, 2020

Urine trouble: Ohio Supreme Court to decide whether an employer can require “direct observation” of a workplace urine-sample collection

An employer requires “direct observation” of its employees providing a urine sample pursuant to its reasonable suspicion and random workplace drug-testing policy. The employer sends an individual of the same sex to accompany the tested employee into a restroom designated for the sample collection to visually observe the employee producing the sample. The employer’s substance abuse policy and the consent and release form provide for the testing, neither discloses or provides for the direct observation of the sample production.

These are the facts of Lunsford v. Sterilite of Ohio, in which the Ohio Supreme Court will decide whether a private-sector, at-will employee who agrees to drug testing as a condition of continued employment has a reasonable expectation of privacy during mandatory drug screening.

The court of appeals determined that the direct observation method of urine-sample collection is an unlawful invasion of the employees’ common law right to privacy. “We find appellants did have a reasonable expectation of privacy with regard to exposure of their genitals.” The issue wasn’t whether the collection itself violated the employees’ privacy. It doesn’t. As the appellate court explained, “[A]n employee consenting to a drug test waives the right to complain that his urine is collected and tested.” However, in this case, the employees “had an expectation of privacy with regard to their bodies and … the compelled exposure of their genitals and compelled urination before a stranger intruded upon that privacy.”

The Ohio Supreme Court, which held oral argument in this case last week, will now decide this fascinating issue.

If you watch the oral argument, you will not witness a whole lot of outrage towards the employer from my state’s notoriously business-friendly Supreme Court. While this case will likely be a win for the employer, it does not mean that your business should across-the-board adopt “direct observation” as the process for your drug testing. To me, it’s a horribly offensive practice that should only be used if necessary, and only after disclosure to, and consent by, the observed employee.

What advice would I provide if a client comes to me and asks about a “direct observation” policy?

  1. I’d ask, “Why?” What are you trying to achieve? Are there less obtrusive means available to prevent employees from cheating a drug test (e.g., searches before they enter the restroom, pat-downs, etc.)? Does it make more sense to limit direct observation to situations in which you have a reasonable suspicion of cheating?

  2. Make sure all employees have notice of the direct observation and when you might use it. Unlike the employer in this case, put it in your drug-testing policy, and have employees sign off on it as an express condition of employment. With notice and consent, they cannot complain about an invasion of privacy, as they’ve voluntarily sacrificed that right. 

Just because Ohio’s Supreme Court will likely grant a thumbs-up to Sterilite’s policy in this case, it does not mean that the policy makes for good HR or that it’s one that you should adopt in your workplace. Instead, consider what goals you hope to advance with your drug-testing policy, and tailor it accordingly.

* Image by Ji-Sun Yoo from Pixabay