Nature of the Case
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Facts
D has a workplace substance-abuse policy that applies to all its employees, and compliance with the policy is a condition of employment. The purpose of the policy is to 'promote a healthy, safe and productive workplace for all employees.' The policy reserves to D the discretion to change the policy at any time. D may exercise its discretion to require an employee to submit to drug testing: while investigating a workplace accident or incident, when there is reasonable suspicion that an employee may be impaired by drugs or alcohol, and randomly at periodic intervals. The policy also provides that urinalysis will be used to test for an employee's illegal use of drugs or improper use of prescription or over-the-counter drugs, but it is silent on how the urine sample will be collected. If the employee does not produce a valid urine sample within two and a half hours, the employee will be considered to have refused to take the test. An employee who refuses to take the test is subject to immediate termination. An employee whose urine sample tests positive for illegal drugs or prohibited use of prescription or over-the-counter drugs is subject to disciplinary action, up to and including termination. U.S. Healthworks Medical Group of Ohio, Inc., administers D's workplace drug-testing program. It began collecting urine samples for drug testing by the 'direct-observation method' in October 2016. A same-sex monitor was required to accompany the employee to the restroom to visually observe the employee produce the urine sample. Ps were selected for random drug testing and each complied. Each P executed a statement titled 'Consent and Release' ('consent form') provided by U.S. Healthworks. The consent form provided: I hereby give my consent to and authorize U.S. Healthworks staff and its designated laboratory to perform any testing necessary to determine the presence and/or level of drugs in my body on behalf of my * * * current employer, whose name I entered above. I further give my consent for U.S. Healthworks to release any and all results to the aforementioned employer. I agree to hold harmless all U.S. Healthworks employees, physicians, and agents involved in the performance of the testing, from any action that may arise from the disclosure of such test results to the aforementioned employer * * *. Ps did not know at the time they executed the consent form that their urine sample would be collected under the direct-observation method. None had previously submitted a urine sample under the direct-observation method. Ps were notified that the direct-observation method would be used when they reported to the restroom designated exclusively for urine collection. Each proceeded with the drug test under the direct-observation method without objection. Lunsford and Griffiths were each able to produce a valid urine sample. Keim and Williamson alleged in the complaint that they each made 'good faith efforts' to produce a valid urine sample but were unable to do so within two and a half hours. D terminated Keim's and Williamson's employment pursuant to the policy. Ps complaint alleged that D and U.S. Healthworks invaded Ps' privacy by requiring them to submit their urine samples under the direct-observation method. Ps contend that because the direct-observation method is so 'highly offensive to a person of ordinary sensibilities,' Ohio's courts should balance the intrusion of the direct-observation method against the employer's legitimate business interests in conducting drug testing by that method. If the intrusion outweighs the employer's interests in conducting drug testing by that method, then the employer should be liable for invasion of privacy. Ds filed a motion to dismiss. The trial court granted Ds' motions to dismiss. The court determined that Ohio does not recognize an invasion-of-privacy claim by an at-will employee based solely on an employer's use of the direct-observation method during drug testing, particularly when the at-will employee agreed to be tested as a condition of employment. The Fifth District reversed, holding that Ps had stated a valid claim for invasion of privacy. The court of appeals determined that Ps have a 'reasonable expectation of privacy with regard to the exposure of their genitals.' Ds appealed
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