Breaking: Ohio Supreme Court Holds No Invasion of Privacy Claim Exists When Employers Watch Urine Drug Testing

Lunsford v. Sterilite of Ohio, LLC - Ohio Supreme Court

Facts:  Adam Keim (“Keim”) and Laura Williamson (“Williamson”) were former at will employees at Sterilite of Ohio, LLC (“Sterilite”).  Donna Lunsford (“Lunsford”) and Peter Griffiths (“Griffiths”) are current at will employees at Sterilite.  Sterilite maintained a substance abuse policy that applied to all of its employees.  Under that policy, there were three conditions in which Sterilite would require an employee to submit to drug testing:  1) while investigating a workplace accident or incident; 2) when there was a reasonable suspicion that an employee may be impaired by drugs or alcohol; and 3) randomly at periodic intervals.  When a supervisor informed an employee of when and where to report for the testing, the employee had two and a half hours to provide a valid urine sample.  Failure to appear and provide the sample could result in termination.  As well, an employee that refused to take the test could be subject to termination.  Employees with urine samples that tested positive could also be terminated.

To carry out the testing, Sterilite utilized U.S. Healthworks Medical Group of Ohio, Inc. (“U.S. Healthworks”).  Sterilite designated a restroom that would be used solely for the collection of urine samples.  Prior to the testing, each employee would sign a “Consent and Release” from provided by U.S. Healthworks, consenting to the dug testing.  The direct observation method of collecting urine samples began in October of 2016.  This required a same sex monitor to accompany the employee into the restroom and visually observe the employee produce the urine sample.

At the time Keim, Williamson, Lunsford, and Griffiths provided urine samples, they were not aware of the direct observation method.  It was not until they reported to the restroom did they find this out.  Lunsford and Griffiths were able to produce urine samples.  Keim and Williamson were not able to produce urine samples and were subsequently terminated, according to Sterilite’s policy.

A lawsuit was subsequently filed against Sterilite on an invasion of privacy cause of action.  The complaint against Sterilite claimed that because the direct observation method was “highly offensive to a person of ordinary sensibilities”, an Ohio court should balance the intrusion of the direct observation method against the employer’s legitimate business interests in conducting drug testing by that method.  The argument followed that if the intrusion outweighs the employer’s interests, then the employer should be liable for invasion of privacy.  The trial court granted Sterilite’s motion to dismiss on the grounds that the direct observation method was need to ensure urine samples were not tainted.  However, the Fifth District Court of Appeals reversed and held an employee has a reasonable expectation of privacy with regard to the exposure of their genitals.  Consequently, the invasion of privacy claim was reinstated and Sterilite subsequently appealed.

Holding:  The Ohio Supreme Court recognized that the U.S. Supreme Court had previously issued a ruling in Skinner v. Ry. Labor Executives’ Assn. and held that urine tests are not invasive of the body, but “procedures for collecting the necessary samples, which require employees to perform an excretory function traditionally shielded by great privacy, raise concerns.”  In cases where the collection of the sample to be tested “involve visual or aural monitoring the act of urination,” privacy interests arise.  Of note, consent is an absolute defense to an invasion of privacy claim.  Prior caselaw established that an employee that consents to drug testing cannot Claim the testing was highly offensive and invaded his or her right to privacy. 

Turning to the facts of this case, the Court pointed out Sterilite’s employees signed the “Consent and Release” form prior to testing.  As well, when Keim, Williamson, Lunsford, and Griffiths reported for testing, they were informed of the direct observation method.  They could have refused the testing at that point but instead consented by taking (and attempting to take) the drug test.  Based upon the facts as plead in the complaint, the Court held that no valid invasion of privacy cause of action could exist against Sterilite, based upon the consent given by the employees to the direct observation method of the drug testing. 

Judgment:  The Ohio Supreme Court reversed the ruling from the Fifth District Court of Appeals and held that when an at will employee consents, without objection, to the collection of his or her urine sample under a direct observation method, the at will employee has no valid invasion of privacy cause of action against their employer.

The Takeaway:  I will point out that while this was a 4 - 3 decision, that does not negate the majority opinion’s ruling here.  Whether this was a 4 - 3 decision or 7 - 0, the ruling stands.

On that note, I believe that based upon the prior caselaw and the facts as plead in the complaint, there was simply no wiggle room here to defeat Sterilite’s motion to dismiss.  Had the facts been different (for instance, had the employees objected to the direct observation method when first confront with it or had there been a way to show that the urine sample could be collected without risk of it being tainted), this case could have gone the other way...or at least survived the motion to dismiss  With that being said, as with some courts which have held that an employer can lawfully have a camera or video monitoring an employee while at work, invasion of privacy claims in the workplace can be difficult to prevail upon.

Majority Opinion Judge:  Judge Kennedy

Date:  August 26, 2020

Opinion:  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-4193.pdf