In a shocking twist that may be indicative of future developments, the Ohio Supreme Court has upheld the use of so-called “direct observation” drug tests by employers. This test is, in effect, a standard urine test used to detect the presence of drugs in a person’s system, except the employees are put under “direct observation” to make sure they did not swap out someone else’s urine. Employee rights advocates are outraged at the decision, which effectively makes it legal to watch an employee urinate when giving a sample for a drug test.
The use of drug tests for employment purposes is a practice that goes back decades, where an employee can be compelled to give a urine sample that can be tested for the presence of certain illicit substances. This may include illegal drugs like cocaine, heroin, or amphetamines, as well as substances like alcohol that are legal to consume but which an employee may face sanctions for if they use it on the job. The purpose of such a test is to ensure their employees are not under the effects of recreational drugs while at work, which the courts have generally upheld as valid.
However, some employers have complained about whether these tests may be considered valid, given that some employees have found ways to fake the urine test. For example, some employees will pay other people to provide urine for them, which they submit as their own, while others will use fake urine to fool drug tests. To defeat these methods, some employers have resorted to “direct observation” urine tests, which effectively involves having someone else of the same sex watch the employee as they urinate to confirm the urine sample is genuine.
Which leads to the case of Lunsford v. Sterilite of Ohio LLC, 2020 Ohio 4193 (Ohio 08/26/20), in which an employer demanded their employees submit to these “direct observation” drug tests or else face immediate termination. Of the four employees involved in the suit, two submitted to the tests and maintained their positions, while two objected and were fired on the spot. All four employees sued on the basis that their personal privacy was invaded, noting that federal law places a high level of scrutiny on any practice that would require the observation of an individual using the bathroom.
The Ohio Supreme Court dismissed claims this constituted a violation of privacy, however, agreeing with the employer’s assertion that an employee’s status as an at-will employee constituted consent to the direct observation drug test. In effect, this means that so long as an employee is considered to be employed at-will, an employer can subject them to a direct observation drug test at any time, and fire them for refusing to submit to the practice. The fact that such a practice would normally merit a high level of scrutiny, the court said, does not matter, because an at-will employee always has the option of quitting if they do not wish to submit to a direct observation drug test.
While this decision is alarming on its own, what is truly problematic is the potential implications it has for public policy across the country, including in New York. After all, if an employer can force an employee to urinate in front of someone else or else be fired, what privacy does an employee have with respect to their employers? Or will it become standard practice for employers to insert themselves into the most private aspects of their employees’ lives under the auspices of the employment relationship? Only time will tell.
If you have gotten into a legal dispute with your employer, it is important that you seek the guidance of an experienced New York employment lawyer who can protect your legal rights and advocate on your behalf. Steven Mitchell Sack, the Employee’s Lawyer, is a New York employment lawyer with more than 39 years’ experience handling the many aspects of employment law. To schedule an appointment with New York City employment lawyer Steven Mitchell Sack, call (917) 371-8000.
