This morning, a divided Ohio Supreme Court held that there
is no common-law invasion of privacy claim under Ohio law when an at-will
employee consents to or submits without objection to direct observation of a urine
sample given for a workplace drug test. Lunsford
v. Sterilite of Ohio, L.L.C., Slip Opinion No.
2020-Ohio-4193. Not only
did the employees sign a consent form (which did not mention direct observation
collection), but also they did not object when they were later informed that
the urine collection would be observed. The Court’s majority found it irrelevant that the
employees believed that they would be fired if they objected to or refused direct observation.
According to the Court’s opinion, the employer selected four
employees for a urine drug test under its mandatory drug testing policy. Only one of them was suspected of being under the influence of illegal drugs
at the time. At the laboratory, the
employees signed a consent form to the drug test and releasing the results to
the employer. The consent form did not
mention that the urine would be collected while being directly observed by a laboratory
employee. Thereafter, they were informed
that the urine collection would be directly observed. None of them objected. Two of them submitted urine samples. Two of them – including the suspected
employee – were unable to produce any urine for 2.5 hours despite a good faith
effort to do so and were terminated under the employer’s policy. All of them filed suit against the employer
and the laboratory for invasion of privacy.
To be actionable, the invasion of privacy must involve “the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or 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.” . . . .
“Intrusion upon seclusion” is based on the “right to be left alone.” People for Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111 Nev. 615, 630, 895 P.2d 1269 (1995). It is “akin to trespass in that it involves intrusion or prying into the plaintiff’s private affairs.” Killilea v. Sears, Roebuck & Co., 27 Ohio App.3d 163, 166, 499 N.E.2d 1291 (10th Dist.1985). “ ‘One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.’ ” Sustin v. Fee, 69 Ohio St.2d 143, 145, 431 N.E.2d 992 (1982), quoting Restatement of the Law 2d, Torts, Section 652B (1977). Whether an invasion of privacy has occurred turns on the particular facts of the case. See Kane v. Quigley, 1 Ohio St.2d 1, 3-4, 203 N.E.2d 338 (1964). However, the right to privacy is not absolute. Earp, 16 Mich.App. at 276, 167 N.W.2d 841.
Direct observation is commonly required only after questions
have been raised about a urine sample (i.e., because the urine temperature too low after it was switched with a stored sample, too watery, etc.). However, by the time the second sample is
taken, the illegal drugs may have metabolized and the employees are then
forewarned. In this case, the
plaintiffs argued that several federal agencies do not permit witnessed
collections until other problems with the sample have occurred. But, the Court’s majority found that those
policies did not apply because this employer was not subject to them and was a
private sector employer which could set its own terms and conditions of
employment. The plaintiffs were each
free to resign and find other employment if they objected.
The employees attempted to argue that their actions -- in signing the consent form and submitting
to the test without objection after learning how it would be conducted – were not
truly voluntary. The Court
disagreed. According to the Court, the
employer
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.
Some of the opinion’s language – focusing on the lack of prior
objection from the plaintiffs -- indicates that the Court might consider future
challenges if the employees had objected prior to submitting to the drug test,
but the logic of the opinion indicates otherwise:
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.
The dissent felt that the employee’s acquiescence to the
test under threat of termination was not truly voluntary. One of the cardinal rules of labor law is to first
obey and then grieve. Nonetheless, the
dissent indicates in its first footnote that it would have joined the opinion if the
consent form or policy had previously notified the employees that their urine
samples would be collected under direct observation.
NOTICE: This summary is designed
merely to inform and alert you of recent legal developments. It does not
constitute legal advice and does not apply to any particular situation because
different facts could lead to different results. Information here can change or
be amended without notice. Readers should not act upon this information without
legal advice. If you have any questions about anything you have read, you
should consult with or retain an employment attorney.
