Excerpted from a HRD Blog by Bernise Carolino.
A third party hired by an employer to collect and test employee samples for drugs does not owe the employee a common-law duty to perform services with reasonable care, the Texas Supreme Court recently said.
Turnaround Welding employed the respondent as a pipefitter, which had been his job for over 25 years. He was considered an at-will employee. Turnaround assigned him to the Valero Refinery and ordered him to provide the Houston Area Safety Council with hair and urine samples for drug and alcohol screenings.
The Safety Council collected the respondent’s samples and delivered them to Psychemedics Corporation for laboratory testing. Psychemedics reported his hair sample tested positive for cocaine.
The respondent denied ever using cocaine. Prior to this incident, he had never before received a positive result in his drug tests. He gave a second sample to DISA Global Solutions (DISA), another third-party collector.
DISA sent the sample to Psychemedics for testing. The respondent’s second and third samples had negative results for cocaine. DISA approved him for returning to work after he completed a substance-abuse course. Turnaround, however, refused to reassign him to any jobsite.
The respondent filed a lawsuit against Turnaround in federal court and settled his claims. He then sued Safety Council and Psychemedics for making him lose his job by negligently collecting, testing and reporting the results of his sample.
The trial court ruled in Safety Council and Psychemedics’ favor. It found they did not owe the respondent a legal duty.
The court of appeals reversed the decision. There was a legal duty to use reasonable care in collecting and processing biological samples if the employer required the worker to submit to the test as a condition of employment, the appellate court said.
The Texas Supreme Court reversed the appellate court’s judgment and ruled in favor of the petitioners, which were the third-party entities collecting and testing samples.
Because the respondent was an at-will employee, his employer could decide to terminate him for almost any reason, with the petitioners having no control over this decision, the Supreme Court said. The petitioners had no recommendation for the employer about what to do with the results, the Supreme Court added.
Petitioners asserted the importance of drug testing and the burden a new legal duty would place on them. Petitioners argued that imposing a new duty might lead to:
- Frivolous claims against third-party entities for every employee getting a positive result;
- Third-party entities attempting to transfer responsibility to employers;
- Third-party entities choosing not to collect samples for use in the employment context;
- Declines in employment drug screens.
In the end, employers might take over the drug-testing program themselves, which might erode the employment-at-will doctrine, petitioners said.
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