You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. Being tested for drugs has become a fairly accepted part of the workplace and fodder for a lot of jokes in movies and TV shows. Almost twenty five years ago, in the sign Fell Show, Elaine tested positive for opium because of the poppy seeds in her muffins. So she got Jerry's mother to help her with the next year in test. What are you gonna do in there? What am I going to do in the bathroom? I've gotta
do me a favor, Elaine. I really hold on a second, Mrs Slinkfeld, I need your sample. You want my urine. I need a clean urine sample from a woman. As a result of your test being free of opium, I am reinstating you. But that's no laughing matter too many employers. Some have taken steps to ensure against tamper and with urine specimens, including having someone watch employees urinate. Embarrassing to be sure, But is it an invasion of privacy? Ohio's
top court says it's not. By a closely divided four to three vote, the Ohio Supreme Court dismissed the cases of employees who sued their company for invasion of privacy after they were required to undergo a monitored urine test. Joining me is employment law expert Anthony on cd A, partnered Proscauer rose Tony. How did the court deal with the right to privacy argument? For A couple of things become very clear early on in the case, and one is that the right to privacy, which is an amazingly
powerful right, varies surprisingly enough from jurisdiction to jurisdiction. There is no overarching federal constitutional right to privacy, at least not one that appears expressly in the United States Constitution. Some opinions have interpreted there to be privacy like rights in the Constitution, but there's not the word privacy, and there isn't even in some respects and argument that the actual per se right to privacy this at least expressly
stated in the U. S Constitution. That's also true at the state level, and you can see in this opinion early on that the employees cited some cases from some other jurisdictions, including my state, for example, California, and the Ohio Supreme Court had no difficulty at all distinguishing and dismissing any consideration of those cases, because, for example, the California case involved a right to privacy that is enshrined
in the California Constitution. In fact, Article one, Section one of the California State Constitution guarantees the people the state of California a right to privacy. Ohio, by comparison, does not have such an expressed right to privacy, and that was a very important lynch pin of this decision. What about the theory in the opinion that the employees had consented to the drug tests, despite the employees arguing that their consent wasn't voluntary because they could be fired for
refusing to take the test. What the majority of this court said, and it was a fourd to three opinions, with the Chief Justice, by the way, being in the descent. What the majority said was that although the written disclosure form that the employee sign did not state that it would be a so called direct observation drug test, meaning that their genitals could be seen by the person who was making sure that the drug test was taken correctly,
the form didn't say that. However, once they arrived at the testing facility, they were told that, and obviously before they actually were subjected to the test, they knew what was going to happen, and the fact that they continued on with the test and didn't just exit the building,
from the majority's point of view, was consent. Now. That was questioned, of course by the descent, who said, well, if it was consent, it was compelled consent because the employees new or certainly believed that if they refused to take the drug tests in the way that it was being administered, they could and probably would lose their jobs. And so the compulsion elements was what the descent focused on.
But from the majority standpoint, there actually was consented. The descent also said that an at will relationship doesn't allow someone to commit intentional torts. So the descent here felt that there was a violation of privacy or was it
something else. They did say that, they said that there was a violation of privacy, and even the majority did concede that in an employment at will situation, which basically means that an employer can terminate the employment for any reason for so called good reason, bad reason, or no reason at all, and so can the employee leave the employment for any reason at all. That's what an employment
at will relationship is. The majority conceded that there are some exceptions to that, including, for example, filing a worker's comp claim, or filing a discrimination claim, or saying that you've been harassed or discriminated against contrary Title seven or to a state anti discrimination law. You can't be terminated for having done any of those things, even if you
are an at will employee. And so in this case, what the descent is saying is terminating somebody in the context that occurred here, which involved said the descent, an invasion of privacy is like one of those exceptions, meaning that it should be something that is a carve out
from the employment at will rule. The majority, on the other hand, felt the other way and made the determination that if you're an employee at will, you can be compelled to subject yourself to this kind of testing, because essentially, the reasoning of the majority is that the power to terminate, which the employer had to do at will, includes the power to compel somebody to subject himself or herself to
such testing. Is this in line with what where it's in other states have ruled, or does it depend on the state law it's going to depend on the state law, and it certainly was teased out at the beginning of this opinion where the employee cited privacy protection cases from other jurisdictions, and the majority distinguished and indeed ignored basically those other state law cases on the ground that Ohio does not have in its constitution a guarantee of a
right to privacy, and in fact, there's also not even a statutory right to privacy in the state of Ohio. There is what the majority somewhat dismissively referred to as a judge made right to privacy which arises in the common law, but that has never been placed either in
the Ohio State Constitution or in the Ohio statutes. And so that's really the original issue here, I think, is that the people of the state of Ohio should, when the time comes, try to get a right to privacy in shrines somewhere, either in the constitution or in the state books, because right now there isn't any expression of the right to privacy in the state of Ohio. And that's not that uncommon, that is relatively common throughout the
fifty states. So just to be clear, some courts in states that have rights to privacy have ruled that having someone watch you give a urine sample is an invasion of privacy. Correct. Again, there was a California drug testing case that was cited by employees in this case, so called Wilkinson case, and that was ignored by the Ohio State Supreme Court on the ground that California, unlike Ohio, does have an express right to privacy in its state constitution.
It's and it's an Article one, Section one of the California State Constitution. There are other ways to ensure that the urine sample is authentic, like having someone dressing a gown, different things that they can do. Short of this, it seems extreme. Yeah, there is an analysis that you sometimes see in these cases, which is an inquiry takes place whether there is a less intrusive means accomplishing the same goal of the example you give is one that certainly
presumably was available. There are some federal regulations that are also cited in the opinion, and the decent especially saying that these are other ways in which this same goal could have been accomplished and that would have been less
intrusive from the privacy standpoint. But my sense from reading the majority's opinion was that it wasn't in the frame of mind to be tinkering with the machinery that was was employed in this in this situation because of the very strong at will presumption that exists under a higher law, the employee says that she's going to file a motion for reconsideration. Is there any indication that she might fare better with a motion for reconsideration? I doubt it. As
I said, this was slay. It was fairly hard fought litigation. The court was badly supplit I mean it could not you know, one more vote one way or the other would have made the difference. There were four justices that voted um in favor of the employer, and by the way that the Supreme Court reversed the fifth District, so actually the employee had one in the appellate court below,
I believe um. But the dissent consisted of three justices, So one justice one way or the other could have made the difference, and Chief Justice O'Connor was among the three dissenting justices. Four states prohibit observe collection Connecticut, Maine, Rhode Island, Vermont. From what you see in your practice is observed collection becoming the way that that employers verify
I suspect not. I mean this. This struck me as being unusual in that regard, especially since there are also legitimate means which this kind of testing can be accomplished without engaging in this direct observation method. So my sense is that there isn't a trend towards this, and I suspect that. Again, I haven't done any empirical studies of this, but my sense is that fewer testing facilities would use this or would continue to use it's on and going
forward basis this. This was obviously a lot of litigation over you know, a couple of drug tests. So I would imagine, all things being equal, the employer and the testing facility are are more than happy not to have this recur uh, And I wouldn't be surprised if they might get sued again. Somebody may try to figure out a federal right that they can rely upon that, as far as I can tell, was not considered by the Ohio courts in this situation. So that might be another
method of attacking this. Since you know, drug tests have become more and more accepted, are there are a lot of cases of employees challenging UG tests and the way they're administered. Most of those battles were fought UH ten in fifteen years ago, and quite frankly, the employer won most of them. And there's been a lot of litigation about this, for example, in California, so I'm most familiar
with that. The way the rules more or less have settled in California is that an employer may subject an employee to a dry test if there is a reasonable suspicion that the employees under the influence UH and the employer has to be able to articulate what the factors are that lead it to conclude that the employee might be under the influence, and that could be dilated pupils, slurred speech, you know, parking in a strange way, whatever, whatever it might be. So employers can do testing under
those circumstances and not necessarily direct observation testing. I think that I have not heard of that occurring with any frequency in California. The second major category of testing that occurs in California involve situations where the employee is in the safety sensitive position. So, for example, you have somebody who's driving the booklift around or is otherwise dealing with very heavy machinery that could endanger the employee or others.
Under those circumstances, an employer has relatively broad discretion to engage in drug testing. Under the circumstances where things get complicated are in states like California, for example, where we now have legalized marijuana, and so that right is continuing to butt up against the employer's right to do drug testing.
And then you add in the additional fact that marijuana, for example, is still illegal on the federal level, and so that can differ from federal administration to federal administration. The Obama administration was not particularly interested in enforcing uh those laws that the Trump administration has been much more interested in that, and so um, there are a lot of different and competing points of view with respect to this, and it is confusing for employers and employees alike. Thanks Tony.
That's Anthony and City, a partnered Proscauer Rose. Dozens of workers are suing their employers over alleged violations of the first US federal paid leave law. The Family's First Coronavirus Response Act, was designed to give options to workers who have to take leave because of COVID nineteen Bloomberg Law analysis found that seventy two coronavirus leave lawsuits have been filed in federal courts by largely blue collar workers, and
those numbers are expected to spike in the fall. Joining me is Aaron mulveney, Bloomberg Law senior reporter tell us one or two of the stories of some of the workers who took leaves and were fired or warrent granted leaves. Sure since the Families First Coronavirus Response Act has impact UM, their been about six dozen lawsuits that we found that have been filed accusing employers of either not giving workers believes that they UM deserved under the law, or retaliating
essentially against the workers for being fired. So, by way at background, that's basically what this federal law protect against. A lot of the cases that we found were from blue collar workers, such as some that I thought were the allegations were particularly shocking were a scrap metal worker in Maryland had quarantine himself UM for three weeks after he was hostialized with COVID, and he claimed he was
fired for that. A New Jersey janitor experienced the sore throughout weakness after he was posed to the virus and he stayed home waiting for his test results and then he was fired for that UM. This was a pretty common one as well. A legal assistant asked to tell a work when her son's school closed UM, and she was fired. These are the kind of examples. About half were fired, we're having COVID like symptoms and quarantining. About a third were the kind of school or caregiver situations.
Those are some of the examples of the kind of cases that we've seen under this So there are lots of instances where parents have to take care of their child because daycare or schools are closed and they're not
given leave. Absolutely, there are a lot of cases, about a third of the cases that we found in our analysis, we're from parents who were requesting this family leave to take care of their children, whether their children's school closed down or you know, if there if their children got sick. I will say working parents can tap about in additional weeks of family leave under the law, and it will be paid at two thirds of their regular wages, so
it's not the full wages. Let's say you're sick with COVID.
How many weeks can you get off if your employer qualifies under the Act, Workers get two weeks of paid leave and at their regular earnings if they're experiencing COVID symptoms and seeking medical treatment, or if I think a lot of people could understand when there were shut downs, like government shutdowns and medical quarantine orders, that would be something you could claim as well if if a you know, if an employer asked you to basically violate that, and
then the two only the two thirds of the typical salary is triggered with quarantining um with a child, or you know, if you have like maybe an elderly parent that you're caring for, that would be you would get two weeks of paid sick leave for that. As far as employers who are exempt, our healthcare companies exempted, and
therefore healthcare workers don't have access to this protection. There is a healthcare worker exemption under the Act, and the d o L the Labor Department, has issued some guidance on that, and it's somewhat open for debate. I've noticed in the filings of there were still some people who worked in the healthcare industry who were filing these lawsuits, and it remains to be seen whether they'll be thrown
out under the exemption. Or whether that the exemption was supposed to be for a specific type of healthcare worker. A lot of management sided deploy employment attorneys will say it was crafted a little hastily and that exemption in particular wasn't necessarily clear, And it seems from your story like it's an uphill battle for management attorneys just trying
to figure out the law. I think that will be the case with any new kind of federal blanket law that requires companies to comply with new standards as they
never have before. This is the first federal paper policy in the country so that the country's ever had, and although it's limited and scope, it still has different you know, exemptions and qualifications and notification requirements for employers, and you know, especially if it's a smaller business that may not regularly get advice from an attorney, there are hurdles and who to jump through to avoid getting sued. These kinds of laws I think are often daunting for the average person.
Are workers also confused about, you know, what their rights are? I would imagine a lot of workers aren't familiar with necessarily what they um have a right to because they didn't have a pailee policy from their employer and they don't get notification about this these new rights under UM, this Emergency Act, and in a lot of you know, low income workers may not have the means to go out and buyle a lawsuit, and they they might not
know that they have these this kind of capability. Some of the worker advocates that I talked to said that they were getting flooded with a lot of questions but what they were entitled to and especially when people were
in these kind of difficult situations. And what they said is they said they were offering advice so that hopefully wouldn't come to a lawsuits and more, you know, talking through with the employer or the new standards that they're required to follow, and so hopefully it could be resolved that way. There might be one reason for the relatively low number of lawsuits if employers and workers can kind
of work together on this to bring litigation. Aaron management attorneys are expecting a spike in cases in the fall. Is that because more workers are likely to become more familiar with the law. I did have some management attorneys who raise that concern that maybe there would be more awareness of the law in coming months. UM the law expires in December thirty one, so it would it would
only see a matter of the next few months. But there what's happening now is there are schools reopening, there are more businesses reopening, and that could both trigger more COVID symptoms from hope experts say, or how health concerns, but also just the need for leave, you know, balance with parents or caregivers, balancing a lot of UM new demands and as the country kind of steps into the pandemic. I think at the beginning there was a lot of
uncertainty and chaos and everybody was scrambling. But now they're trying to set into a new all the very different normal in the business community. So there is a suggestion that there could be a spike for various reasons. It could be that more workers become aware of it, but there really isn't strong evidence that that's the case necessarily at this point. What kinds of companies or what companies are being sued, well, there are some limits again to
that because there shouldn't be there aren't UM. An employer with more than five workers is exempt from the law, and there are also some UM exemptions for workers of fifty or less us and some of the big names that we saw, and they they were Kroger and Eastern Airlines and Holiday in which people may may recognize. But they were mostly companies that you might not have heard of necessarily, like uh, lawn hare companies or cleaning companies that can you work under some kind of um name UM.
So it wasn't necessarily things that you've heard of, you know, they might be kind of like this medium sized business that falls into that area. What are the states that have the most claims against employers? Florida far and away, I'll stripped the other states. It had the most cases. Uh, Michigan and Pennsylvania probably had the they were kind of following. It was scattered around the country other than that, but Florida definitely stood out is the main states, so it
saw these kind of claims. There's so much empathy or expressed empathy for healthcare worker is is there any kind of legislation being proposed to cover health care workers in the same way that they cover other workers. It just
seems unfair to be excluding them. I'm not sure how what lawmakers are thinking as far as any aspect of this legislation, whether or not it will be renewed moving forward UM, and whether or not they'll tweak it with maybe more clarification on what the health care worker exemption is or what they were intending to do UM. I have not personally heard of any proposal to UM provide
something like this specifically for the entire health care industry though. However, so, what is the best guidance that attorneys are giving to employers that fall under the law. As usual with advice from attorneys, they always advise making sure that they are aware of what the law requires them, like they need
to notify their workers of their new leave rights. And they also recommend collecting documentation when these requests are made, providing notice of their decision about granting or rejecting leaves. Those things are important in the litigation process, even if
they seem kind of procedural at an early stage. But but I think this is an important point to a lot of these lawyers that I talked to said, keeping flexibility in mind in these difficult situations is really important as a company outside of their legal and you know, making taking flexibility to account and they're balancing these decisions
for their business and for their workers needs. When you talk to people, what do they see as the biggest challenge coming up as kids return to school, as more businesses reopen. Is there an area or a type of of worker that they see more at risk of termination.
I think the biggest fear would not be necessarily a type of worker, but maybe just a parent kind of having to balance a lot of difficult situations and maybe being treated differently than other workers in general, and not you know, really getting to leave that they they're entitled to under this law. Um. I think that would probably be what I heard the most of. Otherwise, I think there isn't necessarily a particular industry that this would be affecting.
I think early in the pandemic months, there were probably would be more of the workers that were going back, like in manufacturing and more essential workers. And now that more businesses are opening up, I think there is some potential for more workers to be affected, maybe run office workers who were once table working and people like that in like a cross industries. Honestly, what stage are these lawsuits at? Are Are they mostly at the complaint phase
and they reached the answer phase? They are mostly very early in their litigation process. Most of them have been filed or there were some that we found that were voluntarily dismissed, which kids took us. The settlement was reached by both parties, and there was one case that did have a motion to dismiss that the company tried to get the lawsuits thrown out and a judge rejected on
that motion, so it'll be moving forward. That that early kind of procedural motion usually indicates that the claim had some merit and could be moving forward. Thanks for being on The Bloomberg Law Show, Aaron. That's Bloomberg Law Senior Reporter Aaron mulvaney. And that's it for the edition of the Bloomberg Law Show. I'm June Grosso. Thanks so much for listening, and remember to tune to The Bloomberg Law Show every weeknight at MS Journey right here on Boomberg Radio.