By William J. Judge, JD, LL.M., and Nick Hartman, Drug Screening Compliance Institute
Background
It has been estimated that as many as 45 million workplace drug tests are conducted each year in the United States. The most recent Quest Diagnostics Drug Testing Index (DTI) report indicates a 4.6% positivity rate – a 20-year ‘high’. That means that more than 2 million individuals face some form of employment action each year. Those individuals will likely look for someone else to blame for their situation.
After 38 years in this business, I can say with certainty that compliance and following industry standards can help avoid litigation. If you do get sued, you want to win! Your attorneys should move as quickly as possible to dismiss the case.
How do you do that? If an applicant or employee claims that you negligently performed a service such as a collection, lab analysis, medical review, or other drug test-related service, you should first ask if you owe the claimant a legally recognized duty. If you don’t, the case is over. You win!
Legal Basis
We don’t want to bore you to death by being overly legalese here. However, a certain amount of law school discussion must be presented and understood in order to understand the concept of a legal duty thoroughly.
The common law of this country divides substantive private law into three broad headings: contracts, torts, and property.[1] Most of us understand contractual obligations and property claims, but what’s a tort?[2] The word ‘tort’ is derived, through French, from a Latin word commonly translated as ‘wrong.’[3] A tort may arise from intentional acts, such as punching someone in the face, negligent acts (frequently an omission of action when there was a duty to act), or violating a statute.[4]
A tort obligation is a duty imposed by law to avoid causing injury to others. “Apart from legislation granting a right to sue for a specific harm, personal injury law generally consists of tort law and the civil procedure for enforcing it.”[5] Because a finding of negligence must be based on the breach of duty, a threshold question in tort cases is whether the alleged “tortfeasor” owed a duty of care to the injured party.[6]
The existence and scope of an alleged tortfeasor’s duty are, in the first instance, a legal question for the court to determine. Whether a duty exists is a question of law that depends on whether the parties were in such a relationship with one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff.[7]
To successfully sue a drug test service provider in most jurisdictions, a negligence claim can only be established if the plaintiff (an applicant or employee) can prove all four of the following elements:
- The service agent owed the plaintiff a duty of care,
- The service agent breached that duty,
- The plaintiff was injured as a result of that breach,
- The ‘injury’ caused the plaintiff to suffer actual damages.
Establishing the existence of a duty is the initial question in any negligence case.[8] Applying these principles to the world of drug testing has been, at best, inconsistent.
Here is a partial list of cases that may provide some insight:
Collectors where duty was found to exist:
▪ Stinson v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659 (1995), where the Court found that the defendant had a duty to the plaintiff to act with reasonable care in collecting, handling, and testing the specimen; the defendant falsely reported to the plaintiff’s employer that the result was positive; the false report was the result of any of several allegedly negligent acts; and the plaintiff lost his job and suffered other damages as a result of the defendant’s negligence
▪ Santiago v. Greyhound Lines, Inc., 956 F. Supp. 144 (N.D.N.Y. 1997), the Court found that the occupational health clinic had a duty to collect the employee’s specimen with due care.
▪ Duncan v. Afton, Inc., 991 P2d 739 (WY 1999), the Court concluded that the collector could foresee that improper collecting and handling of a specimen could contribute to a false positive result and injure the employee.
▪ Sharpe v. St. Luke’s Hosp., 821 A.2d 1215 (Pa. 2003), the Court found that the Hospital owed Sharpe a duty of reasonable care regarding the collection and handling of her urine specimen for employment-related drug testing.
▪ Spiker v. Sanjivan PLLC, No. CV-13-00334-PHX-GMS (D. Ariz. Sep. 16, 2013), where the Court concluded that “public policy warrants the imposition of a duty, collectors to prepare specimens with reasonable care.”
Laboratory where duty was found to exist:
▪ Lewis v. Aluminum Co. of America, 588 So.2d 167 (La App. 1991), where the Court found that the lab knew that negligent testing could wrongfully identify the plaintiff as a drug user and that the lab was aware that if the test results it submitted to the plaintiff’s employer were inaccurate, the plaintiff’s reputation and employment opportunities would be harmed
▪ Elliott v. Laboratory Specialists, Inc., 588 So.2d 175 (La. App. 1991), where the Court noted, “We also find the existence of a noncontractual obligation between Elliott and LSI. To suggest that LSI does not owe Elliott a duty to analyze his body fluid in a scientifically reasonable manner is an abuse of fundamental fairness and justice. . . We find that drug testing laboratories (acting as independent contractors) owe a duty of care to the testee/employee, regardless of the contractual arrangement between the lab and the employer. Privity of contract should never excuse a duty imposed by law on the conduct of individuals towards another in a reasonable society.”
Third-Party Administrators (TPAs) owe a duty of reasonable care:
▪ Spiker v. Sanjivan PLLC, No. CV-13-00334-PHX-GMS (D. Ariz. Sep. 16, 2013), where the Court concluded, “In administering the drug testing program on behalf of an employer, a TPA plays a critical role in ensuring that the service agents that conduct the tests comply with the DOT regulations. . . Thus, taking the allegations . . . as true, the Court holds that [the TPA] owed a duty of care to Mr. Spiker.”
While it is true that the overall trend is for the courts to recognize that Service Agents owe a duty to subjects of workplace drug tests, regardless of whether a contractual relationship exists between them, there have been cases where the Service Agent did not owe the tested individual a duty and, therefore, was not liable.
Such cases include Miller v. Amazon.com Servs. 543 F. Supp. 3d 80 (E.D. Pa. 2021), where the Court found that a lab’s participation in the drug testing process has social utility, this utility does not extend to advising employers (i.e., lab’s clients) that the employee has acquired a Pennsylvania medical marijuana license); Tricoski v. Laboratory Corp. of America, 216 F. Supp. 2d 444, 445-46 (E. D. Pa. 2002) predicting that a Pennsylvania law would not recognize a duty of care by the lab to its customers’ employees; Herbert v. Placid Ref. Co., 564 So. 2d 371, 374 (La. Ct. App. 1990) (holding that a laboratory owes no duty of care to test subjects because its relationship is with the employer, not the employee); Ney v. Axelrod, 723 A.2d 719, 722 (Pa. Super. Ct. 1999) holding that a laboratory does not owe a prospective employee a duty of care.
Recent Case
On March 13, 2024, a Pennsylvania federal Court again found that Service Agents did not owe a duty to the tested individual. (Tourneur v. Nat’l R.R. Passenger Corp.
No. 23-1580, at *1 (E.D. Pa. Mar. 13, 2024). Amtrak (Defendant) allegedly withdrew an offer of employment from Ms. Tourneur because of her pregnancy and allegedly used her false-positive drug test (cocaine) as a pretext. In addition to suing Amtrak, Ms. Tourneur sued the Medical Review Officer (MRO), the company, and the individual responsible for performing the allegedly false-positive drug test for wrongful discharge and negligence. Finding no duty owed by the Service Agents, the Court granted a motion to dismiss.
Ms. Tourneur advised Amtrak that she had been prescribed Labetalol, which was known to cause false positive drug test results. She explained to Amtrak that the Labetalol was prescribed due to hypertension related to her pregnancy. Ms. Tourneur furnished Amtrak with a copy of her Labetalol prescription. Amtrak instructed Ms. Tourneur to contact the lab and MRO about her conclusion of a false positive. Ms. Tourneur promptly did so. Ms. Tourneur’s offer was rescinded. She sued, alleging wrongful discharge and negligence.
The Court noted that in Pennsylvania, one must plausibly plead that these defendants (1) owed Ms. Tourneur a duty of care, (2) breached that duty of care, and (3) injured Ms. Tourneur as a result of that breach, which caused (4) Ms. Tourneur to suffer actual damages. To determine whether a duty is owed under Pennsylvania law, the Pennsylvania Supreme Court considers: “(1) the relationship between the parties; (2) the social utility of the [defendant’s] conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the [defendant]; and (5) the overall public interest in the proposed solution.” Miller v. Amazon.com Servs., Inc., 543 F.Supp.3d 80, 86 (E.D. Pa. 2021) (citing Sharpe v. St. Luke’s Hosp. 821 A.2d 1215, 1219 (Pa. 2003)).
The Court pointed out that Ms. Tourneur asserted that the moving defendants owed her a duty of care beyond the non-negligent collection, handling, and testing of her hair specimen, namely the duty to take “remedial action” after Ms. Tourneur informed them of her suspicion that her prescription Labetalol was the cause of her positive drug test. The Court disagreed, concluding:
“. . . because the relationship between Ms. Tourneur and the moving defendants is so attenuated, it is unclear what “remedial action” [the MRO] would be required to take. They were under no contractual obligation to Ms. Tourneur to provide her with a second test; they had fulfilled their contractual obligation to complete a drug test upon the specimen they were provided. Amtrak collected Ms. Tourneur’s hair sample in the first instance. Hence, they lacked a second sample to conduct a second test. Although Ms. Tourneur avers that “Amtrak has provided employees with an opportunity for an alternate pre-employment drug test upon notification of a possible false positive drug test result[,] . . . [the MRO was] powerless under the circumstances to provide Ms. Tourneur with that same opportunity.
Balancing the Sharpe factors, the Court found that the MRO did not owe Ms. Tourneur a duty to take remedial action in light of her Labetalol prescription. Thus, the Court dismisses Ms. Tourneur’s negligence claims against University Services and Dr. Lopez with prejudice.
This case shows that the question of “duty” continues to evolve. Service agents should evaluate their internal procedures and quality controls to limit their risks while clearly understanding the legal basis of “duty” and raising it when appropriate.
[1] 69 Tul. L. Rev. 457 (1994); https://www.tulanelawreview.org/pub/volume69/issue2/contortions-along-the-boundary-between-contracts-and-torts. Of course there are many other areas of law such as criminal, constitutional, and much more.
[2] This is where I’d typically tell a humorous story from law school . . . but maybe another time.
[3] file:///C:/Users/bjudg/Downloads/OneDrive/Documents/Research/Duty-SAs%20etc/DutyEXISTS/LRev/Australia_OxfordPress_BARKER_9780195572391_SC.pdf; see also https://courses.lumenlearning.com/wmintrobusinessx51xmaster/chapter/reading-criminal-versus-civil-law/
[4] 2024 National Institutes of Health, https://www.ncbi.nlm.nih.gov/books/NBK441953/?report=printable
[5] https://www.patrickshort.com/newsletters/personal-injury/tort-law-like-an-implied-contract/
[6] Abrams v. Bute, 138 A.D.3d 179, 183 (N.Y. App. Div. 2016).
[7] Stinson v. Physicians Immediate Care, 269 Ill. App. 3d 659 (Ill. App. 1995).
[8] “In negligence cases, once a duty is found, the duty, in theory at least, always requires the same [general] standard of conduct, that of a reasonable person under the same or similar circumstances.” Abrams v. Bute, 138 A.D.3d 179, 183 (N.Y. App. Div. 2016).