A Washington appellate court upheld a jury’s verdict that an employer’s drug testing protocol requiring direct observation of urine collections did not invade an employee’s privacy and did not constitute a constructive discharge.  Ritchey v. Sound Recovery Centers, LLC, No. 53303-1-II (Wash. Ct. App. Oct. 20, 2020).

The employee, a licensed chemical dependency counselor, refused to submit to her employer’s new drug testing protocol that required employees to choose between two options: observed testing and unobserved testing. The first option (Option A) provided for “direct observation of the collection by an independent health professional of the same gender.” The second option (Option B) provided for “provision of a sample, in private, after visual inspection by an independent healthcare professional of the same gender. Disposable, sanitary gowns are provided by the center.”

After the employee refused, the employer asked her to leave the premises until she agreed to submit to testing. The employee never returned. The employer continued to pay the employee’s benefits for several weeks, but ultimately stopped after determining the employee was not going to return.

The employee then filed a lawsuit, alleging the employer failed to accommodate her Post-Traumatic Stress Disorder (PTSD) in violation of the Washington Law Against Discrimination, terminated her employment in violation of Washington public policy and wrongfully withheld her wages. The employee did not prevail on her failure to accommodate claim because she did not present sufficient medical evidence to support her argument that her PTSD required accommodation with respect to the drug testing protocols.

The employee also claimed that she was constructively discharged.  Specifically, she argued that the employer’s new drug testing protocol made her work conditions intolerable because she was required either to allow another person to view her genital area during urination (Option A) or submit to a strip search (Option B). She claimed that both options constituted an intolerable invasion of privacy and were objectionable to a reasonable person.

While the Court remarked that the employer’s drug testing procedures were “intrusive” and “did invade the privacy of [its] employees to some extent,” it concluded the jury was in the best position to determine whether the testing procedures “made working conditions intolerable” and would have forced a reasonable person in the employee’s position to resign.  The employer presented evidence that 195 out of 197 employees completed the drug testing process without complaint.  The jury did not find that there was a constructive discharge and the Court upheld that finding.

Although the employer prevailed in this case, employers should remain mindful of employee privacy rights and discrimination laws when creating drug testing programs. Drug testing procedures that could be viewed as invasive are not appropriate for every employer.