Thursday, August 27, 2020

A pisser of an invasion-of-privacy case: Ohio Supreme Court find no cause of action when employer watches an employee give a urine sample for a drug test

Is the privacy of an at-will private-sector employee invaded when a representative of the employer watches him or her give a urine sample for a workplace drug test?

Yesterday, in Lunsford v. Sterilite of Ohio, the Ohio Supreme Court answered this question in the negative.

The facts of the case are not complicated. Sterilite required "direct observation" of its employees providing a urine sample pursuant to its reasonable suspicion and random workplace drug-testing policy. It sends an individual of the same sex to accompany the to-be-tested employee into a restroom to visually observe the employee producing the sample. Its goal is to prevent the employee from cheating the drug test. 

Two years ago, the appellate court held that employees "have a reasonable expectation of privacy with regard to exposure of their genitals," and that "the compelled exposure of their genitals and compelled urination before a stranger intruded upon that privacy."

The Ohio Supreme Court, in a narrow 4-3 decision, disagreed.

[W]e recognize that workplace drug-testing policies implicate employees' privacy interests.… [T]he facts in the complaint demonstrate appellees did consent to the use of the direct-observation method. …
[W]hen appellees 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 appellees had a second opportunity—consent or refuse—and appellees consented by their action. …

Sterlite had the right to condition employment on consent to drug testing under the direct-observation method, appellees had the right to refuse to submit to the direct-observation method, and because appellees were at-will employees, Sterilite had the right to terminate their employment for their failure to submit. Because Sterilite had the legal right to terminate appellees' employment at any time, appellees’ argument that their consent was involuntary because of their fear of termination necessarily fails. …

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. 

In other words, employees voluntarily consented to the "direct observation" by submitting to the drug screen instead of quitting their jobs or refusing and being fired. While I certainly understand the at-will nature of their jobs, I'm troubled by the fact that direct observation was imposed across the board, without limitation for the specific interest the employer was trying to uphold (i.e., employee cheating).

Thus, what advice would I provide if a client asks me about implementing 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. 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 can't complain about any invasion of privacy (legal or illegal), as they've voluntarily given up that right.

Just because Ohio's Supreme Court gave a thumbs-up to Sterilite's policy in this case does not mean that the policy makes for a good HR practice that you should adopt. Instead, consider the specific goals you hope to advance with your drug-testing policy, and tailor it accordingly.