Your Innate Problems with Drug Tests...

Today, the Supreme Court of Ohio issued a rather interesting decision in the employment law / human resources context. In sum, the Court held that an employer cannot be sued for using the “direct observation” method when an employee is giving a urine sample.

In the case Lunsford v. Sterilite of Ohio, LLC, Lunsford and others objected to being watched when they urinated into specimen cups, a requirement imposed upon them by Sterilite’s drug testing policies. They ultimately sued, claiming invasion of privacy by Sterilite and its drug testing service company.

Though the lower court ruled that there was an expectation of privacy for the employees which had been violated by the employer, the Supreme Court reversed that decision, noting that once the employees proceeded, without objection, with the drug test under the direct observation method, they consented to the test by producing or attempting to produce urine.

In the 4-3 decision, the dissent noted that a choice between direct observation urination or termination for failing to submit to the testing requirements is a Morton’s Fork — a choice between two equally unpleasant alternatives — and, as such, no real choice at all.

While this does not give employers the green light to mandate direct observation in all situations, it is clear that, where there is not objection by the employee, no liability should arise. What is unclear is what the results would have been if the employees did object and that is what’s problematic about this case. Further, given the narrow vote by the Court, this decision could easily change after the next election.

Probably best, at this point, for employers to do the right thing and treat their employees with respect and dignity … and shelve the direct observation method.