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Ohio employers have a right to observe their employees provide a urine sample for drug testing, the Ohio Supreme Court held Wednesday in a 4-3 decision.
In Lunsford v. Sterilite of Ohio LLC, the court reversed an appellate court’s ruling that a group of current and former workers could proceed with their invasion of privacy claims against the employer.
Sterilite of Ohio LLC, based in Massillon, is involved in the plastics manufacturing business. The company maintained a workplace substance abuse policy that allowed the employer to require a worker submit to drug testing for suspected impairment or at random. Employees who refuse to take the test are subject to immediate termination. The company also designated a restroom exclusively for collecting urine samples for testing, and its drug-testing vendor had a same-sex monitor accompany the employee being tested to visually observe the worker producing the urine sample.
In 2016, Laura Williamson, Donna Lunsford and Peter Griffiths were selected for random testing and Adam Keim was asked to submit to testing based on suspicion of impairment. They all signed a consent form but said they were unaware that they would be observed directly while giving their sample. Ms. Lunsford and Mr. Griffiths gave valid samples, but Mr. Keim and Ms. Williamson said they were unable to do so under observation and were terminated.
The group filed a complaint alleging invasion of privacy for Sterilite’s practice of requiring urine samples to be submitted under direct observation. A trial court dismissed the case, but the Fifth District Court of Appeals in Canton, Ohio, reversed the decision, holding that the workers had a “reasonable expectation of privacy with regard to the exposure of their genitals” and Sterlite appealed.
The Ohio Supreme Court reversed the appellate court’s decision. Although the workers claimed that they were unaware they would be observed while giving their samples, the court held that they did consent to the direct-observation method in the consent form. Although they argue the form was “too expansively written,” the court found that they had a second opportunity to consent — by giving the sample — or refusing and facing termination. Since they were at-will employees, the court found that the employer had a legal right to terminate them at any time and their “argument that their consent was involuntary because of their fear of termination necessarily fails.”
The dissenting justices argued that whether the workers had an invasion of privacy claim “has nothing to do with their status as at-will employees” and found that the complaint stated “sufficient facts to show that Sterilite coerced appellees to submit to the humiliation of having their genitalia directly observed.”
The Ohio Bureau of Workers Compensation will defer collection of comp premiums until Sept. 1, the agency said in a statement Thursday.