Ohio Supreme Court: Workers’ privacy not violated by testing employees watching urine sample production

ajc.com

The Ohio Supreme Court ruled Wednesday that at-will workers at a private company didn’t have their privacy invaded when the workers provide urine samples for drug tests under the “direct-observation method.”

The case was based on a lawsuit where four employees of Sterilite said that they went to give a urine sample for drug testing and were told as they went to the restroom that employees from the testing company, U.S. Healthworks, would be using the “direct-observation method.”

This method involves a same-sex testing company employee going into the bathroom with the worker being tested to directly watch them produce the urine sample. The testing company said that the method is designed to prevent workers from cheating on the test.

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According to a release from the Supreme Court, the Sterilite workers all signed forms consenting to be tested, but said they did not know at the time they signed the form that their samples would be watched by the testing employee.

Two of the Sterilite employees were unable to produce urine samples in the allotted time and were fired, per company policy. The other two employees did submit samples and remained employed.

The four employees sued, accusing the companies of violating their right to privacy.

In a 4-3 decision, the court ruled that the testing wasn’t an invasion of the Sterilite employees’ privacy.

The majority opinion argued that because the employees were “at-will” employees, signed consent forms and then provided or attempted to provide the urine samples after being told the testing company employee would be directly observing, the testing didn’t constitute an invasion of privacy.

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The majority opinion said, “An employee who consents to drug testing cannot claim that the testing was highly offensive and invaded his or her right to privacy.” It later added that when the employees were told about the collection method, “At that time (the employees) had a second opportunity—consent or refuse—and (the employees) consented by their action” by producing or trying to produce urine samples.

The majority opinion said that under Ohio’s at-will doctrine, “Sterlite had the right to condition employment on consent to drug testing under the direct-observation method, and (the employees) had the right to refuse to submit to the direct-observation method.”

Justice Melody Stewart wrote in her dissenting opinion that the claim to invasion of privacy had nothing to do with being at-will employees. She wrote that Sterilite offered no reasonable justification for having testing employees directly observe employees produce urine samples over other less-intrusive methods, or evidence that it was necessary.

Stewart also wrote that the majority was distorting the employees’ consent, saying that the workers didn’t really have a choice but to agree to the testing or risk being fired.

“What indignities must an at-will employee suffer to avoid losing his or her income and benefits before the employee has a cause of action for invasion of privacy?” she wrote.