Broad Consent by Employee for Direct Observation Drug Test? Okay in Ohio.

In a 4-3 decision, the Supreme Court of Ohio answered this question:

If an employer’s substance abuse policy requires employees to undergo random urinalysis drug testing, and employees sign consent forms authorizing “any testing necessary”, but not specifically addressing direct observation testing, do the employees have a cause of action if their only option is to proceed with testing or face termination?

The short answer – no. In Lunsford v. Sterilite of Ohio, L.L.C., Slip Op. No. 2020-Ohio-4193, the Court found that employees under those circumstances failed to state a claim for invasion of privacy.

In Lunsford, current and former at-will employees of Sterilite brought an invasion of privacy action against their employer and the drug-testing program administrator. The employees alleged that, although they signed a “Consent and Release” form at the onset of the testing process authorizing “any testing necessary,” the form did not specifically indicate that direct observation testing—where a same-sex administrator would observe the employees producing a urine sample—would be used. Thus, the employees argued that they did not consent to that type of testing—or if they did, the consent was involuntary because it was based on the threat of termination if they failed to comply.

The Supreme Court of Ohio disagreed. The Court noted that an employee’s privacy rights must be construed within the context of the employee’s “at-will” status and that consent is generally an absolute defense to an invasion of privacy claim. The Court found that the employees provided their consent at two points: first, they consented to testing generally when they signed the consent form, and second, after being advised that the direct observation method would be used, the employees consented by proceeding with the testing. Here, the employees had two options: consent or refuse. By agreeing to proceed through their actions, the employees provided their consent to the direct observation method, regardless of the broad language in the consent form.

Takeaway? The Court’s opinion in Lunsford tells employers that they need not share every detail of the drug testing procedures with at-will employees in advance of their tests, and reminds at-will employees that their employment is just that: at will. An employee who chooses to work for an organization where continued employment is based on random drug testing and a valid substance abuse policy, and who consents to drug testing, has two options when faced with a testing method he or she disagrees with: proceed with the test, or accept the consequences of refusal.



This information has been prepared by Validity Screening Solutions for informational purposes only and is not legal advice. The content is intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.