Directly observed collection ruled not an invasion of privacy in Ohio

The Supreme Court of Ohio has ruled that an employee who has consented to drug testing has no cause to take legal action against the employer on grounds of invasion of privacy after the employer required the employee to submit to a directly-observed urine collection drug test. This ruling comes from a recent case, Lunsford v. Sterilite of Ohio, LLC, slip op. No. 2020-Ohio-4193 (August 26, 2020).

Sterilite is a private employer with a substance abuse policy that requires reasonable suspicion testing, as well as post-accident testing and random testing. However, its policy for urine testing for drugs does not specify the process for collecting specimens.

Four plaintiffs, including two current employees and two former employees, stated that Sterilite implemented the direct observation method in October 2016. As part of this method, an individual of the same sex was required to accompany the employee to visually observe the employee produce the urine specimen. In addition, three of the plaintiffs had undergone random testing, while the fourth individual was required to undergo a reasonable suspicion drug test. All four plaintiffs had provided signed consent, which did not mention the directly-observed collection method of their urine specimens. However, all four employees were required to undergo directly-observed urine collections and complied.

According to the four plaintiffs , the directly-observed urine collection procedure violated their privacy because the direct observation method is “highly offensive to a person of ordinary sensibilities.” Moreover, they argued that the U.S. Department of Transportation (DOT) requires directly-observed urine collections only in specific cases, such as when an employee is suspected of tampering with the specimen.

Subsequently, the lower court dismissed the plaintiffs’ claims, and an appellate court reversed this decision, holding that the employees had a “reasonable expectation of privacy with regard to the exposure of their genitals.” In turn, Sterilite and its drug testing vendor appealed this decision.

The Supreme Court of Ohio ruled that the facts as alleged by the four plaintiffs could not constitute a common law invasion of privacy since the employees had consented to the drug testing procedure. The Supreme Court held that the plaintiffs did not object when they reported for testing and were informed of the direct-observing urine collection procedure and consented a second time when they did not object to the direct observation. In turn, the employees argued that they did not consent and their refusal of the direct observation of urine collection would have resulted in their termination. The Court rejected this argument, maintaining that employees were employed at-will.

However, three justices stated that employees have a ‘legitimate expectation’ of privacy when urinating, while direct observation of urination by a stranger is highly intrusive. They maintain that the decision regarding whether Sterilite had a legitimate reason to use the direct observation method should not have been resolved through a motion to dismiss.

 

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