Lunsford v. Sterilite of Ohio, L.L.C.

• Decision Date: 26 August 2020
• Docket Number: No. 2018-1431,2018-1431
• Citation: 162 Ohio St.3d 231,165 N.E.3d 245
• Parties: LUNSFORD et al., Appellees, v. STERILITE OF OHIO, L.L.C., et al, Appellants.
• Court: Ohio Supreme Court

162 Ohio St.3d 231

165 N.E.3d 245

LUNSFORD et al., Appellees,

v.STERILITE OF OHIO, L.L.C., et al, Appellants.

No. 2018-1431

Supreme Court of Ohio.

Submitted January 28, 2020

Decided August 26, 2020

Law Offices of S. David Worhatch and S. David Worhatch, Stow, for appellees.

Brennan, Manna & Diamond, L.L.C., John N. Childs, and Daniel J. Rudary, Akron, for appellant Sterilite of Ohio, L.L.C.

Weston Hurd, L.L.P., Daniel A. Richards, and Joshua Miklowski, Cleveland, for appellant U.S. Healthworks Medical Group of Ohio, Inc.

Bolek Besser Glesius, L.L.C., and Matthew D. Besser, Cleveland, urging affirmance for amicus curiae, Ohio Employment Lawyers Association.

Kennedy, J. {¶ 1} In this discretionary appeal from a judgment of the Fifth District Court of Appeals, we consider whether an at-will employee has a cause of action for common-law invasion of privacy as a result of his or her private employer's implementation of a workplace substance-abuse policy requiring the employee to submit a urine sample for drug testing under the "direct-observation method." For the reasons set forth below, we conclude that when an at-will employee consents, without objection, to the collection of his or her urine sample under the direct-observation method, the at-will employee has no cause of action for common-law invasion of privacy. Therefore, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} The complaint alleges that appellees Adam Keim and Laura Williamson are former at-will employees of appellant, Sterilite of Ohio, L.L.C. Appellees Donna L. Lunsford and Peter D. Griffiths are current at-will employees of Sterilite.

{¶ 3} Sterilite, a private company, has a workplace substance-abuse policy that applies to all its employees, and compliance with the policy is a condition of employment. The purpose of the policy is to "promote a healthy, safe and productive workplace for all employees." The policy reserves to Sterilite the discretion to change the policy at any time.

{¶ 4} The policy sets out three circumstances under which Sterilite may exercise its discretion to require an employee to submit to drug testing: while investigating a workplace accident or incident, when there is reasonable suspicion that an employee may be impaired by drugs or alcohol, and randomly at periodic intervals. The policy also provides that urinalysis will be used to test for an employee's illegal use of drugs or improper use of prescription or over-the-counter drugs, but it is silent on how the urine sample will be collected.

{¶ 5} Under the policy, a supervisor informs an employee when and where he or she is to report for testing. If the employee does not produce a valid urine sample within two and a half hours, the employee will be considered to have refused to take the test. An employee who refuses to take the test is subject to immediate termination. An employee whose urine sample tests positive for illegal drugs or prohibited use of prescription or over-the-counter drugs is subject to disciplinary action, up to and including termination.

{¶ 6} Appellant U.S. Healthworks Medical Group of Ohio, Inc., administers Sterilite's workplace drug-testing program. To facilitate drug testing under the policy, Sterilite designated a restroom to be used exclusively for the collection of urine samples. According to appellees' complaint, U.S. Healthworks began collecting urine samples for drug testing by the "direct-observation method" in October 2016. Under that method, a same-sex monitor was required to accompany the employee to the restroom to visually observe the employee produce the urine sample.

{¶ 7} Lunsford, Williamson, and Griffiths were selected by Sterilite for random drug testing on October 4 and 12 and November 8, 2016, respectively. Keim was asked to submit to drug testing based on the policy's reasonable-suspicion-of-impairment provision on October 9, 2016. When appellees were instructed by their respective supervisors to report to the restroom designated by Sterilite for drug testing, each complied.

{¶ 8} At the beginning of the testing process, each appellee executed a statement titled "Consent and Release" ("consent form") provided by U.S. Healthworks. The consent form provided:

I hereby give my consent to and authorize U.S. Healthworks staff and its designated laboratory to perform any testing necessary to determine the presence and/or level of drugs in my body on behalf of my * * * current employer, whose name I entered above. I further give my consent for U.S. Healthworks to release any and all results to the aforementioned employer. I agree to hold harmless all U.S. Healthworks employees, physicians, and agents involved in the performance of the testing, from any action that may arise from the disclosure of such test results to the aforementioned employer * * *.

{¶ 9} Appellees did not know at the time they executed the consent form that his or her urine sample would be collected under the direct-observation method. None of the appellees had previously submitted a urine sample under the direct-observation method. Appellees were notified that the direct-observation method would be used when they reported to the restroom designated exclusively for urine collection.

{¶ 10} Appellees each proceeded with the drug test under the direct-observation method without objection. Lunsford and Griffiths were each able to produce a valid urine sample. Keim and Williamson alleged in the complaint that they each made "good faith efforts" to produce a valid urine sample but were unable to do so within two and a half hours. Sterilite terminated Keim's and Williamson's employment pursuant to the policy.

{¶ 11} Appellees filed in the Stark County Court of Common Pleas an eight-count complaint against appellants on December 22, 2016. At issue here is Count One of appellees' complaint, which alleged that Sterilite and U.S. Healthworks invaded appellees' privacy by requiring them to submit their urine samples under the direct-observation method. Appellees incorporated the policy into their complaint.

{¶ 12} Appellees argued that Ohio law recognizes an individual's right to privacy and to freedom from unreasonable invasion of one's privacy. Appellees contended that because the direct-observation method is so "highly offensive to a person of ordinary sensibilities," Ohio's courts should balance the intrusion of the direct-observation method against the employer's legitimate business interests in conducting drug testing by that method. And if the intrusion outweighs the employer's interests in conducting drug testing by that method, then the employer should be liable for invasion of privacy.

{¶ 13} In support of their arguments, appellees cited guidelines limiting the use of the direct-observation method published by the United States Department of Agriculture ("USDA"), the United States Department of Health and Human Services ("USDHHS"), and the United States Department of Transportation ("USDOT") that were promulgated following an executive order of the President of the United States and acts of the United States Congress (i.e., when the employee's prior drug-test results were reported to be positive for drugs, adulterated, or substituted; or a specimen was invalid without an adequate medical explanation; or when the temperature of the collected specimen was outside the acceptable range, the employee's conduct indicated possible adulteration or substitution of the specimen, or the specimen exhibited signs that it was tampered with during collection).

{¶ 14} Sterilite filed a motion to dismiss on January 17, 2017. U.S. Healthworks filed a motion to dismiss on February 21, 2017. The trial court granted appellants' motions to dismiss on May 9, 2017, determining that the crux of appellees' invasion-of-privacy claim is that Sterilite's substance-abuse policy authorizes the collection of urine samples through the direct-observation method "without requiring evidence, or a reasonable basis to suspect, that a particular employee is likely to taint, tamper with, or otherwise compromise the integrity" of the sample. The trial court accepted appellees' factual allegations as true. The trial court noted that appellees had acknowledged that Ohio employees have no actionable invasion-of-privacy claim based on an employer's implementation of "random and suspicionless drug screening" as part of its workplace substance-abuse policy. It also noted that as support for the invasion-of-privacy claim, appellees relied on the federal guidelines regarding the use of the direct-observation method that had been published by the USDA, USDHHS, and USDOT. But it determined that the policies of government entities are inapplicable because appellants are private companies and there is no state actor involved in this case. It further determined that Ohio does not recognize an invasion-of-privacy claim by an at-will employee based solely on an employer's use of the direct-observation method during drug testing, particularly when the at-will employee agreed to be tested as a condition of employment.

{¶ 15} The Fifth District reversed, holding that appellees had stated a valid claim for invasion of privacy pursuant to this court's decision in Housh v. Peth , 165 Ohio St. 35, 133 N.E.2d 340 (1956). 2018-Ohio-3437, 108 N.E.3d 1235, ¶ 43. In reaching that conclusion, the court of appeals determined that appellees have a "reasonable expectation of privacy with regard to the exposure of their genitals." Id. at ¶ 27. After finding no binding precedent on the direct-observation method, the court of appeals examined caselaw from other Ohio appellate districts, other states, federal circuit courts, and the United States Supreme Court, including cases considering claims involving alleged Fourth Amendment privacy violations. Id. at ¶ 28-43.

{¶ 16} Sterilite and U.S. Healthworks appealed to this court. We accepted for review the following proposition...