In a case of first impression, a federal court in Maryland ruled recently that the state’s drug and alcohol testing statute prohibits private employers from conducting breath alcohol tests on its employees.   Whye, et al v. Concentra Health Services, Inc., 12-cv-3432 (ELH) (D. Md. Sept. 24, 2013).

As employees of Vector Security, Inc., Wendell Whye and William Trout underwent periodic, random breath alcohol testing, pursuant to the Company’s substance abuse policy.  The tests, which were administered by third-party testing provider Concentra Health Services, Inc., required Plaintiffs “breathe deeply for several minutes [into a breath testing device] so as to produce alveolar or ‘deep lung’ breath for chemical analysis.”  The breath samples were not preserved and, in the event of a positive test result, could not be later retested for accuracy.

While neither employee tested positive for alcohol, nor did Vector ever take disciplinary action against them based on test results, Whye and Trout filed suit against Concentra on behalf of themselves and others similarly situated, alleging the breath alcohol tests were illegal under Maryland law.  Conceding that Maryland’s testing statute does not provide a private right of action, the Plaintiffs alleged common law claims for invasion of privacy and fraud.

Hon. Ellen Lipton Hollander analyzed whether Maryland’s testing statute permits the use of breath alcohol testing.  Since the Maryland courts had not yet considered this issue, Judge Lipton reviewed both the plain language of the statute and its regulatory framework.  In doing so, the Court held the Maryland legislature intended to only permit testing of the specimens specifically enumerated in the statute, i.e. blood, urine, hair and saliva.  The Court relied heavily on the statute’s legislative history, finding significant the fact that the legislature had on four occasions unsuccessfully attempted to amend the law to add breath as an enumerated specimen.  Further, a declaratory ruling from the Maryland Department of Health and Mental Hygiene, which administers the testing law, had held previously that employers may not require job-related breath testing.

In addition to finding breath alcohol tests per se illegal, the Court found the tests administered by Concentra were specifically unlawful, as they did not allow for the retesting of breath specimens.

Though the Court held the breath tests were unlawful, it dismissed with prejudice Plaintiffs’ invasion of privacy claim, stating “the employees had no privacy interest in the information sought by breath testing.”  Plaintiffs’ fraud claim was also dismissed, though the Court allowed Plaintiffs fourteen days with which to amend their Complaint and allege Concentra made a deliberately false representation with the intent to deceive.  The Court noted, however, that the named Plaintiffs did not have any damages, as neither was subject to discipline by Vector.

Any Maryland employers conducting breath alcohol testing should cease immediately.  Although this decision is not binding on Maryland state courts, this opinion, as well as the Maryland Department of Health and Mental Hygiene’s declaratory ruling, indicates such testing is impermissible within the state.