The state’s high court will decide whether the privacy of Sterilite employees was invaded when their genitals were viewed during random drug tests.
Last week, the Ohio Supreme Court heard oral arguments in the case, which began in 2016 when Donna Lunsford filed an invasion of privacy claim against Sterilite’s Massillon plant.
Three others also are plaintiffs in the litigation, which was dismissed in 2017 by Stark County Common Pleas Judge Chryssa Hartnett.
Her ruling was appealed to the Canton-based 5th District Court of Appeals, which sent it back to the trial court.
However, both Sterilite and the administrator of the drug tests appealed Hartnett’s decision to the Ohio Supreme Court.
After justices heard about 30 minutes of oral arguments, the legal saga appears to be nearing a conclusion.
The court has taken the case under advisement.
Next week’s oral arguments at the Supreme Court:Employees and company will debate privacy issues around drug-screening methods.
Longtime employee Lunsford worked at Sterilite for more than 21 years, including operating a machine producing 18-gallon totes.
But in October 2016, Lunsford and other employees were asked to submit to random drug tests under the method known as “direct observation.”
Lunsford told The Canton Repository in 2018 that she was distressed after learning the drug test administrator would be watching her groin area while she produced a urine specimen.
Lunsford said she was intensely embarrassed because of scarring left from a previous surgery while noting her past drug tests had been negative.
In 2017, she filed a wrongful termination claim accusing the business of retaliating because she had filed the lawsuit.
That case is on hold pending the Ohio Supreme Court’s ruling.
Lunsford and two other plaintiffs had been subjected to random drug screening and a fourth plaintiff was tested under the reasonable suspicion clause, according to court records.
Employees signed a consent and release form just prior to the drug tests but the waiver did not reference the use of direct observation, the 5th District appeals ruling said.
Sterilite produces plastic housewares products and storage bins.
At issue before the high court is whether at-will employees can be subjected to visual observation drug testing or if it’s invasive.
Attorneys both for Sterilite and U.S. Healthworks Medical Group of Ohio told justices the urine samples were taken with same-sex monitors in a restroom out of view of other workers.
Attorney David Worhatch, who reprepresents Lunsford and the other plaintiffs, told the panel that a jury should decide the case based on “all of the evidence rather than a trial judge sitting in Stark County saying under every circumstance a direct observation is allowed.”
Noting there had been no evidence or suspicion of the plaintiffs having tampered with drug tests in the past, Worhatch said “the employer had no business making a decision arbitrarily that we are going to subject every one of you to direct observation without notifying the employees ahead of time.”
Refusing to submit to the test meant employees would be fired, he said.
Two of the plaintiffs were fired because they didn’t provide a urine sample within the two-and-a-half hours allotted, according to court records.
The original lawsuit seeks reinstatement with back pay for some of the plaintiffs. All four plaintiffs are seeking damages to compensate for pain, suffering and embarrassment.
Invasion of privacy becomes a question because “indiscriminate” use of direct observation “could … reasonably be considered as offensive to a person of ordinary sensibilities,” Worhatch said.
During oral arguments, he agreed the case is not a Fourth Amendment (unreasonable searches and seizures) issue.
But at-will employees should not have “to check their dignity at the door,” he said.
Attorney Daniel Rudary, who represents Sterilite, said that a ruling against the business “will send a message to Ohio employers that no matter how carefully, how professionally or how privately a direct observation urinalysis screening is conducted, the very act of performing that test will give rise to unlimited (legal) exposure … on behalf of at-will employees who do not have a reasonable expectation of privacy (in) whether they are reporting to work under the influence of drugs or are cheating on a drug test.”
“There is not a single allegation in the complaint before this court alleging that Sterilite or U.S. Healthworks exceeded the bounds of that legitimate business interest,” Rudary argued to the justices.
Attorney Joshua Miklowski represents U.S. Healthworks, the drug test administrator.
Miklowski said that direct observation is “the most effective method in ensuring the sample is not adulterated.”
The attorney also cited federal appellate court rulings.