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In the
Supreme Court of Ohio
Donna L. Lunsford, et al.,
Appellees,
v.
Sterilite of Ohio, LLC, et al.,
Appellants.
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Case No. 2018-1431
On Appeal from the Stark County Court
of Appeals, Fifth Appellate District
Court of Appeals Case No.
2017 CA 00232
Brief of Amici Curiae Ohio Employment Lawyers Association
in Support of Appellees
Matthew D. Besser (0078071)
*Counsel of Record
BOLEK BESSER GLESIUS LLC
Monarch Centre, Suite 302
5885 Landerbrook Drive
Cleveland, Ohio 44124
Phone: 216.464.3004
Fax: 866.542.0743
Counsel for Amici Curiae
Ohio Employment Lawyers Association
S. David Worhatch (0031174)
Law Offices of S. David Worhatch
4920 Darrow Road
Stow, Ohio 44224
Phone: 330.650.6000
Fax: 330.650.2390
Counsel for Appellees
John N. Childs (0023489)
Daniel J. Rudary (0090482)
BRENNAN, MANNA & DIAMOND, LLC
75 E. Market Street
Akron, Ohio 44308
Phone: 330.253.5060
Fax: 330.253.1977
Counsel for Appellant Sterilite of Ohio, LLC
Daniel A. Richards (0059478)
Joshua M. Miklowski (0085690)
WESTON HURD LLP
1301 East 9th Street, Suite 1900
Cleveland, Ohio 44114
Phone: 216.687.3256
Fax: 216.621.8369
Counsel for Appellant U.S. Healthworks
Medical Group of Ohio, Inc.
Supreme Court of Ohio Clerk of Court - Filed May 01, 2019 - Case No. 2018-1431
i
TABLE OF CONTENTS
Table of Authorities .................................................................................................. ii
Statement of Interest of Amici Curiae ...................................................................... 1
Introduction ............................................................................................................... 1
Statement of Facts ..................................................................................................... 3
Law and Analysis ...................................................................................................... 3
Amicus Curiae’s Proposition of Law: Ohio private employers do not have the
right to compel employees to show their genitals to a third party during random
drug testing without articulable reasons to question the integrity of the test
results for a given employee. .......................................................................................... 3
A. Being watched while urinating is a “particularly invasive” intrusion into
one’s reasonable expectation of privacy. Although employers generally
have the right to drug test by urinalysis, they do not have an unbounded
right to do so in an unreasonable manner. ....................................................... 5
B. Various federal agencies, and the U.S. Supreme Court, recognize that
direct observation is not necessary to ensure the integrity of employee
urinalysis. .............................................................................................................. 8
C. Appellants’ proposed rule would expose every private employee in Ohio
to needless humiliation and indignity as a condition of employment. ..... 14
Conclusion ............................................................................................................... 16
Certificate of Service ............................................................................................... 16
ii
TABLE OF AUTHORITIES
Cases
American Federation of Teachers–West Virginia v. Kanawha Cty. Bd. of Educ., 592 F. Supp. 2d
883 (S.D. W.Va. 2009) ......................................................................................................... 7, 15
Everson v. Mich. Dept. of Corrs., 391 F.3d 737 (6th Cir. 2004) .............................................. 5, 6
Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956) ............................................... 3, 4, 7, 15
Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981) ............................................................................... 6
Lovvorn v. City of Chattanooga, 846 F.2d 1539 (6th Cir. 1988) .............................................. 2, 6
National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) ............................... 6, 12
Schaill v. Tippecanoe City Sch. Corp., 864 F.2d 1309 (7th Cir. 1988) ......................................... 6
Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602 (1989) ............................................ 2, 6, 13
State ex rel. Ohio AFL-CIO v. Ohio Bureau of Workers’ Comp., 97 Ohio St. 3d 504, 780
N.E.2d 981, 2002-Ohio-6717 .................................................................................................... 8
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) .................................................... 4, 5
Wilcher v. City of Wilmington, 139 F.3d 366 (3d Cir. 1998) ......................................... 4, 5, 7, 15
York v. Story, 324 F.2d 450 (9th Cir. 1963) ................................................................................. 5
Other Authorities
Urine Drug Screening: Practical Guide for Clinicians, Mayo Clin. Proc. (January 2008) ...... 11
Regulations
4 C.F.R. Part 120 ........................................................................................................................... 9
10 C.F.R. § 26.69 .......................................................................................................................... 13
10 C.F.R. § 26.87(e) ..................................................................................................................... 10
10 C.F.R. § 26.89(b) ..................................................................................................................... 10
10 C.F.R. § 26.89(d) ..................................................................................................................... 10
10 C.F.R. § 26.105(a) ................................................................................................................... 10
10 C.F.R. § 26.105(b) ................................................................................................................... 10
10 C.F.R. § 26.107(a) ................................................................................................................... 12
10 C.F.R. § 26.107(d) ................................................................................................................... 10
10 C.F.R. § 26.111 ........................................................................................................................ 11
iii
10 C.F.R. § 26.115 ........................................................................................................................ 15
10 C.F.R. § 26.115(a) ................................................................................................................... 13
10 C.F.R. Part 26 ........................................................................................................................... 9
46 C.F.R. § 16.113 .......................................................................................................................... 9
49 C.F.R. § 40.3 .............................................................................................................................. 9
49 C.F.R. § 40.43 ............................................................................................................................ 8
49 C.F.R. § 40.43(a) ....................................................................................................................... 9
49 C.F.R. § 40.43(b) ..................................................................................................................... 10
49 C.F.R. § 40.43(c) ..................................................................................................................... 10
49 C.F.R. § 40.43(d) ............................................................................................................... 10, 11
49 C.F.R. § 40.61(c) ..................................................................................................................... 10
49 C.F.R. § 40.61(d) ..................................................................................................................... 12
49 C.F.R. § 40.61(f) ...................................................................................................................... 10
49 C.F.R. § 40.63(e) ..................................................................................................................... 10
49 C.F.R. § 40.65 .......................................................................................................................... 11
49 C.F.R. § 40.67 .......................................................................................................................... 15
49 C.F.R. § 40.67(a) ..................................................................................................................... 13
49 C.F.R. § 40.67(b) ..................................................................................................................... 14
49 C.F.R. § 40.67(c) ..................................................................................................................... 13
49 C.F.R. § 40.305 ........................................................................................................................ 14
49 C.F.R. § 40.309 ........................................................................................................................ 14
49 C.F.R. § 199.5 ............................................................................................................................ 9
49 C.F.R. § 219.701 ........................................................................................................................ 9
49 C.F.R. § 382.105 ........................................................................................................................ 9
49 C.F.R. § 655.51 .......................................................................................................................... 9
49 C.F.R. Part 40 ........................................................................................................................... 9
1
STATEMENT OF INTEREST OF AMICI CURIAE
The Ohio Employment Lawyers Association is the statewide professional
organization for Ohio lawyers representing employees in labor, employment, and civil
rights matters. OELA is among the largest of the National Employment Lawyers
Association’s 67 state and local affiliates. OELA strives to protect the rights of its
members’ clients and regularly supports precedent-setting litigation affecting the rights
of individuals in the workplace. The aim of OELA’s amicus participation is to cast light
not only on the legal issues presented in a given case, but also on the practical impact
the decision in that case may have on access to the courts.
Amici’s interest in this case is to maintain the basic right to bodily privacy in
Ohio workplaces; it is to preserve the common-sense, reasonable expectation that when
Ohioans show up for work, they will not be forced to present their genitals for visual
inspection by strangers in order to keep their jobs.
INTRODUCTION
The drug testing procedure Sterilite forces on its private employees is more
personally intrusive than what the federal government demands of commercial airline
pilots, the U.S. Coast Guard, and nuclear power plant workers. It is a policy that
compels employees to show their genitals to a complete stranger while urinating—even
without any particular reason to believe a given employee will try to cheat on the test.
That is both unreasonable and unnecessary. And it is an invasion of privacy.
2
Urination is an act “traditionally shielded by great privacy.” Skinner v. Ry. Labor
Executives’ Assn., 489 U.S. 602, 626 (1989). “There are few other times where individuals
insist as strongly and universally that they be let alone to act in private.” Lovvorn v. City
of Chattanooga, 846 F.2d 1539, 1543 (6th Cir. 1988). Though employers have a general
right to drug test employees by urinalysis, they do not have the right to achieve that
goal by unreasonable means. Here, Appellants insist on the most intrusive means
available.
Because there are adequate ways to protect the integrity of the testing process,
there is no need for this affront to employee dignity. The federal government requires a
series of steps for drug testing employees in a broad range of safety-sensitive jobs—jobs
in which the consequences of intoxicated employees could include airplane crashes or a
repeat of Three Mile Island. Despite these perils, the federal procedures do not allow
(let alone require) the random, suspicionless direct observation testing Sterilite forces on
its private-sector employees, who make plastic tubs. If the federal testing safeguards are
adequate to protect the public from drunk airline pilots and nuclear power plant
workers, they can do the same for private-sector employees who do not work in such
safety-sensitive roles.
The impact of a contrary rule would be profound. It would permit every private
Ohio employer to force every employee to show their genitals to a stranger during a
random and suspicionless drug test, or lose their jobs. To impose that indignity on
3
millions of Ohioans is inconsistent with the right of privacy this Court has recognized
since 1956. On the other hand, a rule tracking federal testing safeguards would balance
employers’ legitimate need to ensure employees are not intoxicated with avoiding
needless intrusion into the most basic aspects of personal privacy.
This case is not about the right of employers to randomly drug test employees.
Nor is it about the right of employers to take reasonable steps to prevent employees
from tampering with test results. It is about whether employees can be forced to show
their genital to strangers during a random drug test when there is no reason to suspect
they will tamper with the test—and whether employers may fire employees who do not
submit to such an affront to their bodily integrity. The answer must be no.
STATEMENT OF FACTS
OELA adopts the statement of facts in the merit brief of Appellees.
LAW AND ANALYSIS
Amicus Curiae’s Proposition of Law: Ohio private employers do not have the right to
compel employees to show their genitals to a third party during random drug testing
without articulable reasons to question the integrity of the test results for a given
employee.
“The right of privacy is the right of a person to be let alone. . . .” Housh v. Peth,
165 Ohio St. 35, 133 N.E.2d 340 (1956), Syll. ¶ 1. In Ohio as in other states, this right is
the basis for the tort of invasion of privacy. See id. Since 1956, the Court has recognized
the tort, which in its presently relevant form includes “the wrongful intrusion into one’s
private activities in such a manner as to outrage or cause mental suffering, shame or
4
humiliation to a person of ordinary sensibilities.” Id. at ¶ 2. In this respect, the tort keys
not merely on the private nature of the matter intruded upon, but whether the
“manner” of the intrusion was inappropriate.
The facts of Housh illustrate as much. In that case, the defendant, a debt collector,
had a general right to take “reasonable action to pursue his debtor and persuade
payment.” Id. at ¶ 3. Even so, the means he used to achieve that otherwise-permissible
goal crossed the line; his campaign of harassment and torment was “not reasonable.” Id.
at ¶ 4. Because the manner he used was excessive, it was an invasion of privacy.
A focus on the manner of intrusion finds further support in fact patterns closer to
the one in this case. The U.S. Supreme Court used that approach in Vernonia School
District 47J v. Acton, 515 U.S. 646 (1995). There, the Court upheld a drug testing program
for student athletes. In doing so, however, it recognized that “the degree of intrusion
depends on the manner in which production of the urine sample is monitored.” Id. at
658 (emphasis added). The male students “remain[ed] fully clothed and [were] only
observed from behind, if at all.” Id. For their part, female students “produce[d] samples
in an enclosed stall, with a female monitor standing outside listening only for sounds of
tampering.” Id. Considering those personal boundaries, the Court held the intrusion on
the students’ privacy was not excessive.
Three years later, the Third Circuit took a similar approach in a drug testing case.
In Wilcher v. City of Wilmington, 139 F.3d 366 (3d Cir. 1998), the court upheld a testing
5
program for firefighters. Citing Vernonia, the court highlighted the “‘manner’” of the
urine-sample collection. Id., quoting Vernonia at 658. Ruling against the firefighters, the
court explained that monitors “stand behind” the males giving a sample, and “observe
only the collection process generally and not the particular individual’s genitalia.”
Wilcher at 376. For the females, the monitors “stood to the side of the female” and “did
not look at the firefighters’ genitalia as they urinated.” Id. at 377. As in Vernonia, the
court found these relative privacy safeguards significant. Still, it cautioned that the
outcome might have been different if the employer had removed those boundaries. It
warned that the court “would be much more concerned with a procedure’s intrusion on
privacy if it required the monitor to stand in front of the firefighter, or if it demanded
the direct observation of the firefighter’s genitalia.” Id. at 377 n.6. That is precisely the
manner of testing at issue here.
A. Being watched while urinating is a “particularly invasive” intrusion into one’s
reasonable expectation of privacy. Although employers generally have the
right to drug test by urinalysis, they do not have an unbounded right to do so
in an unreasonable manner.
Applying Housh to this case first demands a frank discussion about the nature of
the privacy interest at stake: the right to shield one’s naked body from the gaze of
strangers. It is, as courts have held, difficult to “‘conceive of a more basic subject of
privacy than the naked body.’” Everson v. Mich. Dept. of Corrs., 391 F.3d 737, 757 (6th Cir.
2004), quoting York v. Story, 324 F.2d 450, 455 (9th Cir. 1963). Most people “‘have a
6
special sense of privacy in their genitals. . . .’” Everson at 757, quoting Lee v. Downs, 641
F.2d 1117, 1119 (4th Cir. 1981).
More private still are the bodily functions those genitals perform—one of them
being the act of urination. Urinating is “an excretory function traditionally shielded by
great privacy.” Skinner, 489 U.S. at 626. It is “one of the most private of all activities.” See
Lovvorn, 846 F.2d at 1542–43, called into question on other grounds by National Treasury
Employees Union v. Von Raab, 489 U.S. 656 (1989). “There are few other times where
individuals insist as strongly and universally that they be let alone to act in private.”
Lovvorn at 1543. Even small children understand “it is expected that urination be
performed in private, that urine be disposed of in private and that the act, if mentioned
at all, be described in euphemistic terms.” Schaill v. Tippecanoe City Sch. Corp., 864 F.2d
1309, 1312 (7th Cir. 1988). In short, “[t]here can be little doubt that a person engaging in
the act of urination possesses a reasonable expectation of privacy as to that act. . . .” Id.;
Lovvorn at 1543 (“The subjective expectation of privacy felt by many individuals when
urinating is undoubtedly one that society is prepared to consider reasonable.”).
Compelled urinalysis encroaches on this expectation of great privacy. As the U.S.
Supreme Court has explained, “it is clear that the collection and testing of urine
intrudes upon the expectations of privacy that society has long recognized as
reasonable….” Skinner at 617. Even when permitted, forcing someone to undergo
urinalysis is “particularly invasive” because it “intimately involves an individual’s
7
privacy and bodily integrity.” American Federation of Teachers–West Virginia v. Kanawha
Cty. Bd. of Educ., 592 F. Supp. 2d 883, 892 (S.D. W.Va. 2009). When conducted by direct
observation, compelled urinalysis invades even deeper.
“Direct observation” is a euphemism for staring at someone’s genitals while they
urinate into a cup. It “represents a significant intrusion” into a person’s privacy. See
Wilcher, 139 F.3d at 375–76; American Federation of Teachers–West Virginia at 899. If an
employee showed up to work and gratuitously exposed his or her genitals to others,
that employee should expect to be fired. Society expects—and requires—that we keep
our genitals private. By the same token, we may reasonably expect that we will not be
compelled to show them to a stranger who is not providing us medical care. Being
forced to stand before a stranger, display one’s penis or vagina, and urinate into a cup
as a condition of employment is an indignity from which any sane person would recoil.
It is enough to cause “mental suffering, shame or humiliation to a person of ordinary
sensibilities.” See Housh, 165 Ohio St. 35 at Syll. ¶ 2. When unreasonably mandated by
an employer as a condition of employment, it is an invasion of privacy.
Setting aside the shame and humiliation of being compelled to engage in this
most-private of activities in front of a stranger, forced direct observation is also unduly
intrusive for its potential to disclose irrelevant—but deeply personal—information
about an employee’s body. For instance, the observer might be able to see if an
employee has a visible sexually transmitted disease. The observer would be able to see
8
if a female employee is menstruating, as she could be forced to reveal her used feminine
hygiene products in front of this stranger. Or, as was the case here, an employee might
have embarrassing surgical scarring, put on display for the stranger.
It is true that employers have a general right to drug test employees. See, e.g.,
State ex rel. Ohio AFL-CIO v. Ohio Bureau of Workers’ Comp., 97 Ohio St. 3d 504, 780
N.E.2d 981, 2002-Ohio-6717, ¶ 18. Under certain limited circumstances, employers may
even use the direct observation method. Yet these rights are not without limits. Just as
the defendant in Housh had a general right to collect a debt, but not the right to achieve
that goal in an unreasonable manner, the same holds true here. That employers have a
general right to drug test employees does not mean they enjoy an unbounded right to
do it in any manner. Suspicionless, random direct observation is unreasonable and
violates an employee’s right to privacy.
B. Various federal agencies, and the U.S. Supreme Court, recognize that direct
observation is not necessary to ensure the integrity of employee urinalysis.
Appellants’ direct observation method is more intrusive than what the federal
government requires for commercial airline pilots, the U.S. Coast Guard, and nuclear
power plant workers. For these employees (and others with similarly safety-sensitive
jobs), the federal government mandates a series of steps before, during, and after drug
testing to ensure the integrity of test results. These steps are designed “to protect the
security and integrity of urine collections,” 49 C.F.R. § 40.43, and “to prevent
unauthorized access that could compromise the integrity of collections,” Id. at §
9
40.43(a).1 Appellants’ direct observation method is therefore not only intrusive, it is
unnecessary.
Before the test, the regulations require the monitor take a litany of steps to prevent
tampering. Under the DOT regulations, the monitor must:
(1) Secure any water sources or otherwise make them unavailable to
employees (e.g., turn off water inlet, tape handles to prevent
opening faucets);
(2) Ensure that the water in the toilet is blue;
(3) Ensure that no soap, disinfectants, cleaning agents, or other
possible adulterants are present;
(4) Inspect the site to ensure that no foreign or unauthorized
substances are present;
(5) Tape or otherwise secure shut any movable toilet tank top, or put
bluing in the tank;
(6) Ensure that undetected access (e.g., through a door not in your
view) is not possible;
(7) Secure areas and items (e.g., ledges, trash receptacles, paper towel
holders, under-sink areas) that appear suitable for concealing
contaminants; and
(8) Recheck items in paragraphs (b)(1) through (7) of this section
following each collection to ensure the site’s continued integrity.
1 The U.S. Department of Transportation has promulgated testing procedures for
employees in the aviation, railroad, highway, transit, pipeline, and maritime industries.
49 C.F.R. Part 40; see 14 C.F.R. Part 120 (Federal Aviation Administration); 49 C.F.R. §
219.701 (Federal Railroad Administration); 49 C.F.R. § 382.105 (Federal Motor Carrier
Safety Administration); 49 C.F.R. § 655.51 (Federal Transit Administration); 49 C.F.R. §
199.5 (Pipeline and Hazardous Materials Safety Administration); 46 C.F.R. § 16.113 (U.S.
Coast Guard). The DOT procedures apply to the Coast Guard for drug testing, but not
alcohol testing. See 49 C.F.R. § 40.3. The Nuclear Regulatory Commission has a parallel
testing regime, found at 10 C.F.R. Part 26.
10
49 C.F.R. § 40.43(b). If the testing site is a restroom, the monitor must ensure access to
collection materials and specimens is “effectively restricted,” and that the “facility is
secured against access during the procedure….” Id. at § 40.43(c)(1–2). The Nuclear
Regulatory Commission uses parallel procedures for nuclear power plant workers “to
deter the dilution and adulteration of urine specimens at the collection site.” 10 C.F.R. §
26.87(e).
During the test, the federal government demands additional steps to prevent
cheating. “To avoid distraction that could compromise security,” only one employee
may be tested at a time. 49 C.F.R. § 40.43(d)(1); accord 10 C.F.R. § 26.89(d). When an
employee arrives for testing, the monitor must first confirm the employee’s identity
with a photo ID. 49 C.F.R. § 40.61(c); 10 C.F.R. § 26.89(b). Arriving employees must then
“remove outer clothing (e.g., coveralls, jacket, coat, hat) that could be used to conceal
items or substances that could be used to tamper with a specimen.” 49 C.F.R. § 40.61(f);
accord 10 C.F.R. § 26.105(a). They must leave any “briefcase, purse, or other personal
belongings” with the monitor or in another “mutually agreeable location.” 49 C.F.R. §
40.61(f); accord 10 C.F.R. § 26.105(a). Next, employees must empty their pockets and
show the contents to the monitor. 49 C.F.R. § 40.61(f)(4); 10 C.F.R. § 26.105(b). Above all
else, the monitor “must pay careful attention to the employee during the entire
collection process to note any conduct that clearly indicates an attempt to tamper with a
specimen.” 49 C.F.R. § 40.63(e); accord 10 C.F.R. § 26.107(d).
11
After the test, the regulations command further safeguards to ensure integrity.
The monitor must keep the collection container in view until the specimen is sealed. 49
C.F.R. § 40.43(d)(2). Nobody besides the employee and the monitor may handle it
before it is “sealed with tamper-evident seals.” Id. at § 40.43(d)(3). Immediately after
receiving the specimen, the monitor must check it for sufficiency (at least 45ml),
temperature (90–100 degrees Fahrenheit), and for signs of tampering generally,
including “unusual color, presence of foreign objects or material, or other signs of
tampering.” Id. at § 40.65; accord 10 C.F.R. § 26.111. Various lab tests besides
temperature can be used to ferret out tampering. According to standards published by
the Mayo Clinic, adulteration can be detected by checking pH levels, creatine
concentrations, or urinary nitrite levels. Urine Drug Screening: Practical Guide for
Clinicians, Mayo Clin. Proc. (January 2008), available at:
https://www.mayoclinicproceedings.org/article/S0025-6196(11)61120-8/fulltext (last
visited April 23, 2019).
These are the procedures mandated for some of the most safety-sensitive of jobs.
Yet for none of them is random, suspicionless drug testing permitted by direct viewing
of their genitals while they urinate. The regulations in fact explicitly forbid it as a
standard practice. With limited exceptions discussed below, Nuclear Regulatory
Commission regulations state that the employee “shall provide his or her urine
specimen in the privacy of a room, stall, or otherwise partitioned area (private area) that
12
allows for individual privacy. . . .” 10 C.F.R. § 26.107(a)(1). DOT regulations say the
same thing. 49 C.F.R. § 40.61(d)(1).
Though Appellants claim otherwise, direct observation is not “the only way to
effectively detect and deter cheating on a urinalysis test.” (See Sterilite Br. at 24). That is
the very purpose of the multi-step federal procedures used for the most safety-sensitive
jobs this country has. And the U.S. Supreme Court has placed a stamp of approval on
those procedures as an effective means of not only detecting tampering, but also
deterring employee substance abuse in the first instance.
In National Treasury Employees Union v. Von Raab, 489 U.S. at 656, the Supreme
Court considered similar drug testing procedures for the U.S. Customs Service. Agents
arriving for testing had to produce photo ID and remove any outer garments. Id. at 661.
Then they produced a sample “behind a partition, or in the privacy of a bathroom stall. .
. .” Id. To guard against tampering, a monitor “remain[ed] close at hand” and added
dye to the toilet water “to prevent the employee from using the water to adulterate the
sample.” Id. The monitor then inspected the sample for temperature and color, and
placed a tamper-proof seal over it. Id. On review, the Supreme Court rejected the
argument that the procedures were inadequate to detect cheating. The Court held
employees could not “expect attempts at adulteration to succeed, in view of the
precautions taken by the sample collector to ensure the integrity of the sample.” Id. at
676. That answers the question of detection.
13
The Supreme Court has also addressed the deterrent effect of the federal
procedures. The seminal case Skinner v. Railway Labor Executives’ Association involved a
challenge to testing procedures promulgated by the Federal Railroad Administration
for railroad employees. The procedures did “not require that samples be furnished
under the direct observation of a monitor, despite the desirability of such a procedure to
ensure the integrity of the sample.” Skinner, 489 U.S. at 606. Though acknowledging that
a train “becomes lethal when operated negligently by persons who are under the
influence of alcohol or drugs,” id. at 628, the Court still held the regulations were an
“effective means of deterring employees engaged in safety-sensitive tasks from using
controlled substances or alcohol in the first place.” Id. at 629.
This is not to say direct observation testing is per se unlawful. It is not. Federal
regulations permit direct observation in a limited set of common-sense circumstances
where there is an articulable reason to question the validity or integrity of a given
employee’s test. Federal regulations permit direct observation urinalysis when:
• Lab results show a sample was substituted, diluted, or otherwise
tampered with, or the test results were “invalid” without an
“adequate medical excuse.” 49 C.F.R. § 40.67(a)(1–3), (c)(4); 10
C.F.R. § 26.115(a)(1);
• A sample is outside the required temperature range. 49 C.F.R. §
40.67(c)(3); 10 C.F.R. § 26.115(a)(2);
• The monitor observes conduct indicating an attempt to cheat. 49
C.F.R. § 40.67(c)(2); 10 C.F.R. § 26.115(a)(3);
• An employee previously failed a workplace drug or alcohol fitness-
for-duty test. 10 C.F.R. § 26.69; or,
14
• The test is a return-to-duty or follow-up for an employee who has
returned, or would be returning, from an alcohol- or substance-
abuse leave. 49 C.F.R. § 40.67(b)(5); compare id. at §§ 40.305, 40.309
(return-to-duty and follow-up testing).
The common thread lashing each is some specific basis to doubt the validity or integrity
of the urinalysis. In these situations, direct observation furthers an employer’s
legitimate business needs. The same is not true for a policy of generalized, suspicionless
direct observation. Absent some articulable reason to question the integrity of a given
employee’s test, that manner of testing exceeds the bounds of reasonableness and is an
invasion of privacy.
C. Appellants’ proposed rule would expose every private employee in Ohio to
needless humiliation and indignity as a condition of employment.
It is hard to overstate the practical ramifications of the rule Appellants advocate.
If adopted, it would permit each and every private employer in Ohio to conduct
random, suspicionless direct observation urine testing on each and every one of their
employees. It would license employers to force employees to show their genitals to
strangers as a condition of employment—and to do so without articulable suspicion of
drug use or tampering. Legal secretaries, accountants, hotel maids, fast-food cashiers,
and the millions of Ohioans in countless other private-sector jobs could be ordered, at
random, to disrobe and show their penises or vaginas to a stranger while urinating into
a cup, or else be fired. To impose that Orwellian indignity on the people of Ohio would
be inconsistent with the ingrained “right of a person to be let alone. . . .” See Housh, 165
15
Ohio St. at Syll. ¶ 1. OELA is unaware of any other state that does so. The federal
government certainly does not. Ohio should not either.
On the other hand, an approach tracking federal law would be both reasonable
and workable. It would permit direct observation testing, but only when there is an
articulable reason to believe it necessary to ensure test integrity. See 49 C.F.R. § 40.67; 10
C.F.R. § 26.115. And it would afford due respect for an employer’s legitimate interest in
detecting substance abuse at work, while avoiding the “significant intrusion” on
personal privacy from direct observation. See Wilcher, 139 F.3d at 375–76.
In part for this reason, Appellants’ allusion to public safety rings hollow. Few
jobs are more safety-sensitive than commercial airline pilot, nuclear power plant
worker, or train conductor. Compare American Federation of Teachers–West W.Va., 592 F.
Supp. 2d at 903 (“A train, nuclear reactor, or firearm in the hands of someone on drugs
presents an actual concrete risk to numerous people. . . .”). Mistakes in these jobs can
cause (and have caused) absolute calamity. But when they are drug tested, they are not
subjected to the same degree of personal intrusion Sterilite defends for its private-sector
employees. If the federal testing procedures adequately protect the public from the
perils of intoxicated airline pilots, train conductors, and nuclear power plant workers—
despite the lack of direct observation—they are equally up to the task for the bulk of
Ohio’s private employees, whose jobs are not so safety-sensitive.
16
CONCLUSION
For the reasons stated above, this Court should affirm.
Respectfully submitted,
Matthew D. Besser (0078071)
*Counsel of Record
BOLEK BESSER GLESIUS LLC
Monarch Centre, Suite 302
5885 Landerbrook Drive
Cleveland, Ohio 44124
Phone: 216.464.3004
Fax: 866.542.0743
Counsel for Amici Curiae
Ohio Employment Lawyers Association
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served by
electronic mail this 1st day of May, 2019 upon the following:
S. David Worhatch
Counsel for Appellees
John N. Childs
Daniel J. Rudary
Counsel for Appellant Sterilite of Ohio, LLC
Daniel A. Richards
Joshua M. Miklowski
Counsel for Appellant
U.S. Healthworks Medical Group of Ohio, Inc.
Counsel for Amici Curiae