October 20, 2020

When Does Intrusion Become Invasion of Privacy? Substance Testing Tip

An employer has a substance testing policy that requires employees to either allow direct observation of providing a urine sample or remove their clothing for a visual inspection before providing a urine sample. Let’s face it, either is pretty awkward.  So, you  might understand why an employee declined either option.  But, when she did, she also lost her job…and sued for constructive discharge.

The court explains that an employee is constructively discharged. “when working conditions [are] so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.”

While the court found the employer’s practice to be “intrusive” and did invade employees’ privacy “to some extent,” it affirmed the finding of the jury in the first trial that it did not rise to the level of constructive discharge.

NOTE 1: The employer did not immediately fire this employee. When she declined to submit to the test, she left the workplace and did not return. They continued to pay her over the next two weeks.  During that time, they contacted the employee. It was only after she confirmed that she did not intend to return to work, they considered her to have voluntarily resigned.

NOTE 2: Just because the employer won others may want to consider why and when they would require an employee to undergo visual observation while producing a urine specimen for workplace-related substance testing.

TIPS: Some options might be:

  • If an employee’s initial sample is reported as having been possibly altered (temperature if out of range, diluted, etc.), then visual observance might be required.
  • Use a specimen other than urine, such as hair, blood or saliva.  Be sure to use only specimens that are legally authorized under your state’s code or regulations.
  • Talk to the certified laboratory that you use and discuss what protocols should be followed in the event a specimen appears altered. Setting out a plan in advance can save everyone time and confusion, if and when the issue ever arises.