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Employers Can Watch Drug Test Urination, Ohio Court Rules (1)

Aug. 26, 2020, 5:34 PM; Updated: Aug. 26, 2020, 7:57 PM

Ohio workers who sued after they were required to undergo an employer-watched urine test didn’t have a claim for invasion of privacy, the Ohio Supreme Court ruled.

The 4-to-3 split court ruled Wednesday for employer Sterilite, a plastic storage bin maker, and the company’s drug testing provider, U.S. Healthworks Medical Group of Ohio Inc.

The majority opinion written by Justice Sharon Kennedy found that the four suing at-will employees underwent the test, indicating their actions amounted to consent.

Sterilite argued that observing employees is necessary to stop workers from cheating on drug tests. While the majority recognized “that workplace drug-testing policies implicate employees’ privacy interests,” Kennedy wrote that 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.”

‘Where Do You Draw This Line?’

The dissenting justices said the majority’s reasoning doesn’t stand up to the reality workers face. At-will employees aren’t given the time and opportunity to contest the urine collection method—those refusing to have someone watch them in the act are shown the door immediately.

“An at-will-employment relationship does not allow an employer to commit intentional torts against its employees,” Justice Melody Stewart wrote. Instead, “the individual’s legitimate expectation of privacy must be balanced against the employer’s need to conduct drug testing in the manner it chooses.”

The workers’ attorney David Worhatch said the court’s decision could open the door to further invasions of privacy unless the Ohio General Assembly changes the law. Otherwise, “where do you draw this line?” he asked.

“What if HR says as a condition of employment you must reveal all of your finances so they know you’re not at risk of bankruptcy? Can I see your prescriptions to make sure you’re not on opioids?” Worhatch said in an interview. “I do not believe an at-will employee needs to check his or her dignity at the door when accepting a job in industry.”

Attorneys for Sterilite didn’t immediately respond to a request for comment.

The case is Lunsford, et al. v. v. Sterilite of Ohio, L.L.C., Ohio, No. 2020-Ohio-4193, claims dismissed 8/26/20.

(Adds comment from plaintiffs' attorney. )

To contact the reporter on this story: Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com

To contact the editors responsible for this story: Katherine Rizzo at krizzo@bgov.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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