Recently, the Ohio Supreme Court held that employers can use the direct-observation method of drug testing, without violating an employee’s privacy rights, provided that the employee consents to the test. The court also noted that an employer can terminate an employee for refusing to consent to that drug test.

In that case, Lunsford v. Sterilite of Ohio, L.L.C., employees were selected for drug testing and each employee executed a “Consent and Release.” At the time of executing the release, the employees did not knowing that their urine sample would be collected under the direct-observation method – where a person of the same sex visually observes the employee produce the urine sample. The employees were notified that the direct-observation method would be used when they reported for their urine collection. The employees all proceeded to take the drug test without making objections, but, subsequently, sued their employer for invasion of privacy.

The court held that the employees could not sustain claims for invasion of privacy as each employee consented to a direct-observation drug test, no employee objected to the test, and each employee signed the “Consent and Release.”

Practically, this means that employers can use direct-observation drug testing provided that the employee consents to the test. The employee’s consent should be obtained in a written release or written waiver prior to administering the drug test. Importantly, no employee should be forced to take a drug test following their objection to such test; however, if an employee refuses to consent to a drug test, he or she can be terminated.

Please contact a member of the Labor and Employment Group for any questions you may have concerning drug testing of employees, or your drug testing policy.