Recently, the Supreme Court of Ohio resolved the question of whether an at-will employee has a cause of action for invasion of privacy against its private employer for requiring the employee to submit a urine sample under the direct-observation method. The case of Lunsford v. Sterilite of Ohio, LLC involved two employees and two former employees (collectively “Appellees”) who brought an action against Sterilite alleging that its collection of urine samples using a direct-observation method was an invasion of privacy.
Sterilite of Ohio (“Sterilite”) is a private employer that requires its employees to comply with its workplace substance abuse policy as a condition for employment. Under the policy, an employee who refuses to submit to testing is subject to immediate termination. U.S. Healthworks Medical Group of Ohio, Inc. (“Healthworks”) is the entity charged with administering Sterilite’s drug testing program. Before testing, each appellee signed a consent and release form provided by Healthworks which authorized Healthworks’ employees to perform the testing and to forward the results to Sterilite.
The form did not mention that the urine sample would be collected using the direct observation method, but Appellees were notified that this method would be used when they reported to the restroom for urine collection. Each employee provided a urine sample under direct observation without objection. Appellees argued they did not consent to the use of the direct observation method because they learned about the method only after signing the consent form. Appellees also argued that their consent was involuntary because refusal would have resulted in the termination of employment.
First, the Ohio Supreme Court stated that “[c]onsent is generally an absolute defense to an invasion-of-privacy claim.” The court explained that, even though the form did not mention the direct observation method, the Appellees still consented to the use of the direct-observation method through their actions and not the form. The court found that Appellees consented to the direct observation test by showing up and taking the test without objecting. The court noted that Appellees had a second opportunity to consent or refuse testing when they were informed of the direct observation method before providing the urine sample.
Second, the Ohio Supreme Court explained that Sterilite could condition employment on Appellees’ consenting and submitting to the direct observation method. Here, because appellees were at-will employees, Sterilite could terminate them if they failed to submit to testing. The Court held that when an at-will employee consents to the use of the direct observation method, the employee has no cause of action for common-law invasion of privacy.
The court’s decision in Lunsford seems to follow the same line of reasoning of other previous decisions. For example, in Wilcher v. City of Wilmington, the United States Court of Appeals for the Third Circuit upheld the city’s use of the direct-observation method for urine collection when testing its firefighters. Similar to Lunsford, in Wilcher the firefighters did not challenge the drug testing policy but the direct observation method used for testing. In that case, the appellate court balanced the intrusion of the direct observation testing method and the firefighters’ Fourth Amendment rights and found that the intrusion was reasonable. The court also found that the firefighters had consented to testing through their collective bargaining agreement and therefore, had a reduced privacy interest.
In Skinner v. Railway Labor Executives Association, the United States Supreme Court upheld the validity of Federal Railway Administration (“FRA”) regulations that required drug and alcohol testing of railway employees. The Court noted that railway employees’ privacy expectations are diminished because they are part of a highly regulated industry. Also, the intrusion on the privacy of the employees by the regulations was limited. Finally, the Court explained that “because employees ordinarily consent to significant employer-imposed restrictions on their freedom of movement, any additional interference with that freedom that occurs in the time it takes to procure a sample from a railroad employee is minimal.”
It appears that the Ohio Supreme Court in Lunsford is in line with several other courts when it comes to the issue of whether an employer can drug test an employee through the direct observation method. When analyzing this issue, courts seem to focus primarily on whether the employer obtained consent before drug testing its employees. The holding in this case would indicate that, as long as the employer obtained consent in some form, the employer’s method of drug testing employees is likely to be upheld by the court unless it is found to be overly intrusive or unconstitutional, despite the level of intrusiveness of the procedure. However, an industry trend toward saliva testing over urine may tip the scales in future cases.
 Lunsford v. Sterilite of Ohio, L.L.C., No. 2018-1431, 2020 WL 5033054, at *1 (Ohio Aug. 26, 2020).  Id. at *1-2.  Id. at *1.  Id.  Id.  Lunsford, 2020 WL 5033054, at *2.  “Direct Observation” is an industry term which refers to a set of protocols which involve the provision of a urine sample wherein the collector watches the urine leave the body directly. This method in common practice is generally only allowable by someone of the same gender and in limited circumstances (i.e. the collector has observed signs of tampering/cheating the test or as part of a return to work (RTW) program in which an employee tested positive or admitted to the use or abuse of alcohol and/or controlled substances in violation of company policy.  Id.  Id.  Id. at *4.  Id.  Lunsford, 2020 WL 5033054, at *6.  Id. at *7.  Id.  Id.  Id.  Lunsford, 2020 WL 5033054, at *7.  Id. at *8.  Wilcher v. City of Wilmington, 139 F.3d 366 (3d Cir. 1998).  Id. at 374.  Id. at 378.  Id. at 374.  Skinner v. Railway Lab. Execs. Ass’n, 489 U.S. 602, 634 (1989).  Id. at 627.  Id. at 625.  Id. at 604.