In the

Supreme Court of Ohio

Donna L. Lunsford, et al.,

Appellees,

v.

Sterilite of Ohio, LLC, et al.,

Appellants.

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Case No. 2018-1431

On Appeal from the Stark County Court

of Appeals, Fifth Appellate District

Court of Appeals Case No.

2017 CA 00232

Brief of Amici Curiae Ohio Employment Lawyers Association

in Support of Appellees

Matthew D. Besser (0078071)

*Counsel of Record

BOLEK BESSER GLESIUS LLC

Monarch Centre, Suite 302

5885 Landerbrook Drive

Cleveland, Ohio 44124

Phone: 216.464.3004

Fax: 866.542.0743

mbesser@bolekbesser.com

Counsel for Amici Curiae

Ohio Employment Lawyers Association

S. David Worhatch (0031174)

Law Offices of S. David Worhatch

4920 Darrow Road

Stow, Ohio 44224

Phone: 330.650.6000

Fax: 330.650.2390

sdworhatch@nls.net

Counsel for Appellees

John N. Childs (0023489)

Daniel J. Rudary (0090482)

BRENNAN, MANNA & DIAMOND, LLC

75 E. Market Street

Akron, Ohio 44308

Phone: 330.253.5060

Fax: 330.253.1977

jnchilds@bmdllc.com

djrudary@bmdllc.com

Counsel for Appellant Sterilite of Ohio, LLC

Daniel A. Richards (0059478)

Joshua M. Miklowski (0085690)

WESTON HURD LLP

1301 East 9th Street, Suite 1900

Cleveland, Ohio 44114

Phone: 216.687.3256

Fax: 216.621.8369

drichards@westonhurd.com

jmiklowski@westonhurd.com

Counsel for Appellant U.S. Healthworks

Medical Group of Ohio, Inc.

Supreme Court of Ohio Clerk of Court - Filed May 01, 2019 - Case No. 2018-1431

i

TABLE OF CONTENTS

Table of Authorities .................................................................................................. ii

Statement of Interest of Amici Curiae ...................................................................... 1

Introduction ............................................................................................................... 1

Statement of Facts ..................................................................................................... 3

Law and Analysis ...................................................................................................... 3

Amicus Curiae’s Proposition of Law: Ohio private employers do not have the

right to compel employees to show their genitals to a third party during random

drug testing without articulable reasons to question the integrity of the test

results for a given employee. .......................................................................................... 3

A. Being watched while urinating is a “particularly invasive” intrusion into

one’s reasonable expectation of privacy. Although employers generally

have the right to drug test by urinalysis, they do not have an unbounded

right to do so in an unreasonable manner. ....................................................... 5

B. Various federal agencies, and the U.S. Supreme Court, recognize that

direct observation is not necessary to ensure the integrity of employee

urinalysis. .............................................................................................................. 8

C. Appellants’ proposed rule would expose every private employee in Ohio

to needless humiliation and indignity as a condition of employment. ..... 14

Conclusion ............................................................................................................... 16

Certificate of Service ............................................................................................... 16

ii

TABLE OF AUTHORITIES

Cases

American Federation of Teachers–West Virginia v. Kanawha Cty. Bd. of Educ., 592 F. Supp. 2d

883 (S.D. W.Va. 2009) ......................................................................................................... 7, 15

Everson v. Mich. Dept. of Corrs., 391 F.3d 737 (6th Cir. 2004) .............................................. 5, 6

Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956) ............................................... 3, 4, 7, 15

Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981) ............................................................................... 6

Lovvorn v. City of Chattanooga, 846 F.2d 1539 (6th Cir. 1988) .............................................. 2, 6

National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) ............................... 6, 12

Schaill v. Tippecanoe City Sch. Corp., 864 F.2d 1309 (7th Cir. 1988) ......................................... 6

Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602 (1989) ............................................ 2, 6, 13

State ex rel. Ohio AFL-CIO v. Ohio Bureau of Workers’ Comp., 97 Ohio St. 3d 504, 780

N.E.2d 981, 2002-Ohio-6717 .................................................................................................... 8

Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) .................................................... 4, 5

Wilcher v. City of Wilmington, 139 F.3d 366 (3d Cir. 1998) ......................................... 4, 5, 7, 15

York v. Story, 324 F.2d 450 (9th Cir. 1963) ................................................................................. 5

Other Authorities

Urine Drug Screening: Practical Guide for Clinicians, Mayo Clin. Proc. (January 2008) ...... 11

Regulations

4 C.F.R. Part 120 ........................................................................................................................... 9

10 C.F.R. § 26.69 .......................................................................................................................... 13

10 C.F.R. § 26.87(e) ..................................................................................................................... 10

10 C.F.R. § 26.89(b) ..................................................................................................................... 10

10 C.F.R. § 26.89(d) ..................................................................................................................... 10

10 C.F.R. § 26.105(a) ................................................................................................................... 10

10 C.F.R. § 26.105(b) ................................................................................................................... 10

10 C.F.R. § 26.107(a) ................................................................................................................... 12

10 C.F.R. § 26.107(d) ................................................................................................................... 10

10 C.F.R. § 26.111 ........................................................................................................................ 11

iii

10 C.F.R. § 26.115 ........................................................................................................................ 15

10 C.F.R. § 26.115(a) ................................................................................................................... 13

10 C.F.R. Part 26 ........................................................................................................................... 9

46 C.F.R. § 16.113 .......................................................................................................................... 9

49 C.F.R. § 40.3 .............................................................................................................................. 9

49 C.F.R. § 40.43 ............................................................................................................................ 8

49 C.F.R. § 40.43(a) ....................................................................................................................... 9

49 C.F.R. § 40.43(b) ..................................................................................................................... 10

49 C.F.R. § 40.43(c) ..................................................................................................................... 10

49 C.F.R. § 40.43(d) ............................................................................................................... 10, 11

49 C.F.R. § 40.61(c) ..................................................................................................................... 10

49 C.F.R. § 40.61(d) ..................................................................................................................... 12

49 C.F.R. § 40.61(f) ...................................................................................................................... 10

49 C.F.R. § 40.63(e) ..................................................................................................................... 10

49 C.F.R. § 40.65 .......................................................................................................................... 11

49 C.F.R. § 40.67 .......................................................................................................................... 15

49 C.F.R. § 40.67(a) ..................................................................................................................... 13

49 C.F.R. § 40.67(b) ..................................................................................................................... 14

49 C.F.R. § 40.67(c) ..................................................................................................................... 13

49 C.F.R. § 40.305 ........................................................................................................................ 14

49 C.F.R. § 40.309 ........................................................................................................................ 14

49 C.F.R. § 199.5 ............................................................................................................................ 9

49 C.F.R. § 219.701 ........................................................................................................................ 9

49 C.F.R. § 382.105 ........................................................................................................................ 9

49 C.F.R. § 655.51 .......................................................................................................................... 9

49 C.F.R. Part 40 ........................................................................................................................... 9

1

STATEMENT OF INTEREST OF AMICI CURIAE

The Ohio Employment Lawyers Association is the statewide professional

organization for Ohio lawyers representing employees in labor, employment, and civil

rights matters. OELA is among the largest of the National Employment Lawyers

Association’s 67 state and local affiliates. OELA strives to protect the rights of its

members’ clients and regularly supports precedent-setting litigation affecting the rights

of individuals in the workplace. The aim of OELA’s amicus participation is to cast light

not only on the legal issues presented in a given case, but also on the practical impact

the decision in that case may have on access to the courts.

Amici’s interest in this case is to maintain the basic right to bodily privacy in

Ohio workplaces; it is to preserve the common-sense, reasonable expectation that when

Ohioans show up for work, they will not be forced to present their genitals for visual

inspection by strangers in order to keep their jobs.

INTRODUCTION

The drug testing procedure Sterilite forces on its private employees is more

personally intrusive than what the federal government demands of commercial airline

pilots, the U.S. Coast Guard, and nuclear power plant workers. It is a policy that

compels employees to show their genitals to a complete stranger while urinating—even

without any particular reason to believe a given employee will try to cheat on the test.

That is both unreasonable and unnecessary. And it is an invasion of privacy.

2

Urination is an act “traditionally shielded by great privacy.” Skinner v. Ry. Labor

Executives’ Assn., 489 U.S. 602, 626 (1989). “There are few other times where individuals

insist as strongly and universally that they be let alone to act in private.” Lovvorn v. City

of Chattanooga, 846 F.2d 1539, 1543 (6th Cir. 1988). Though employers have a general

right to drug test employees by urinalysis, they do not have the right to achieve that

goal by unreasonable means. Here, Appellants insist on the most intrusive means

available.

Because there are adequate ways to protect the integrity of the testing process,

there is no need for this affront to employee dignity. The federal government requires a

series of steps for drug testing employees in a broad range of safety-sensitive jobs—jobs

in which the consequences of intoxicated employees could include airplane crashes or a

repeat of Three Mile Island. Despite these perils, the federal procedures do not allow

(let alone require) the random, suspicionless direct observation testing Sterilite forces on

its private-sector employees, who make plastic tubs. If the federal testing safeguards are

adequate to protect the public from drunk airline pilots and nuclear power plant

workers, they can do the same for private-sector employees who do not work in such

safety-sensitive roles.

The impact of a contrary rule would be profound. It would permit every private

Ohio employer to force every employee to show their genitals to a stranger during a

random and suspicionless drug test, or lose their jobs. To impose that indignity on

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millions of Ohioans is inconsistent with the right of privacy this Court has recognized

since 1956. On the other hand, a rule tracking federal testing safeguards would balance

employers’ legitimate need to ensure employees are not intoxicated with avoiding

needless intrusion into the most basic aspects of personal privacy.

This case is not about the right of employers to randomly drug test employees.

Nor is it about the right of employers to take reasonable steps to prevent employees

from tampering with test results. It is about whether employees can be forced to show

their genital to strangers during a random drug test when there is no reason to suspect

they will tamper with the test—and whether employers may fire employees who do not

submit to such an affront to their bodily integrity. The answer must be no.

STATEMENT OF FACTS

OELA adopts the statement of facts in the merit brief of Appellees.

LAW AND ANALYSIS

Amicus Curiae’s Proposition of Law: Ohio private employers do not have the right to

compel employees to show their genitals to a third party during random drug testing

without articulable reasons to question the integrity of the test results for a given

employee.

“The right of privacy is the right of a person to be let alone. . . .” Housh v. Peth,

165 Ohio St. 35, 133 N.E.2d 340 (1956), Syll. ¶ 1. In Ohio as in other states, this right is

the basis for the tort of invasion of privacy. See id. Since 1956, the Court has recognized

the tort, which in its presently relevant form includes “the wrongful intrusion into one’s

private activities in such a manner as to outrage or cause mental suffering, shame or

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humiliation to a person of ordinary sensibilities.” Id. at ¶ 2. In this respect, the tort keys

not merely on the private nature of the matter intruded upon, but whether the

“manner” of the intrusion was inappropriate.

The facts of Housh illustrate as much. In that case, the defendant, a debt collector,

had a general right to take “reasonable action to pursue his debtor and persuade

payment.” Id. at ¶ 3. Even so, the means he used to achieve that otherwise-permissible

goal crossed the line; his campaign of harassment and torment was “not reasonable.” Id.

at ¶ 4. Because the manner he used was excessive, it was an invasion of privacy.

A focus on the manner of intrusion finds further support in fact patterns closer to

the one in this case. The U.S. Supreme Court used that approach in Vernonia School

District 47J v. Acton, 515 U.S. 646 (1995). There, the Court upheld a drug testing program

for student athletes. In doing so, however, it recognized that “the degree of intrusion

depends on the manner in which production of the urine sample is monitored.” Id. at

658 (emphasis added). The male students “remain[ed] fully clothed and [were] only

observed from behind, if at all.” Id. For their part, female students “produce[d] samples

in an enclosed stall, with a female monitor standing outside listening only for sounds of

tampering.” Id. Considering those personal boundaries, the Court held the intrusion on

the students’ privacy was not excessive.

Three years later, the Third Circuit took a similar approach in a drug testing case.

In Wilcher v. City of Wilmington, 139 F.3d 366 (3d Cir. 1998), the court upheld a testing

5

program for firefighters. Citing Vernonia, the court highlighted the “‘manner’” of the

urine-sample collection. Id., quoting Vernonia at 658. Ruling against the firefighters, the

court explained that monitors “stand behind” the males giving a sample, and “observe

only the collection process generally and not the particular individual’s genitalia.”

Wilcher at 376. For the females, the monitors “stood to the side of the female” and “did

not look at the firefighters’ genitalia as they urinated.” Id. at 377. As in Vernonia, the

court found these relative privacy safeguards significant. Still, it cautioned that the

outcome might have been different if the employer had removed those boundaries. It

warned that the court “would be much more concerned with a procedure’s intrusion on

privacy if it required the monitor to stand in front of the firefighter, or if it demanded

the direct observation of the firefighter’s genitalia.” Id. at 377 n.6. That is precisely the

manner of testing at issue here.

A. Being watched while urinating is a “particularly invasive” intrusion into one’s

reasonable expectation of privacy. Although employers generally have the

right to drug test by urinalysis, they do not have an unbounded right to do so

in an unreasonable manner.

Applying Housh to this case first demands a frank discussion about the nature of

the privacy interest at stake: the right to shield one’s naked body from the gaze of

strangers. It is, as courts have held, difficult to “‘conceive of a more basic subject of

privacy than the naked body.’” Everson v. Mich. Dept. of Corrs., 391 F.3d 737, 757 (6th Cir.

2004), quoting York v. Story, 324 F.2d 450, 455 (9th Cir. 1963). Most people “‘have a

6

special sense of privacy in their genitals. . . .’” Everson at 757, quoting Lee v. Downs, 641

F.2d 1117, 1119 (4th Cir. 1981).

More private still are the bodily functions those genitals perform—one of them

being the act of urination. Urinating is “an excretory function traditionally shielded by

great privacy.” Skinner, 489 U.S. at 626. It is “one of the most private of all activities.” See

Lovvorn, 846 F.2d at 1542–43, called into question on other grounds by National Treasury

Employees Union v. Von Raab, 489 U.S. 656 (1989). “There are few other times where

individuals insist as strongly and universally that they be let alone to act in private.”

Lovvorn at 1543. Even small children understand “it is expected that urination be

performed in private, that urine be disposed of in private and that the act, if mentioned

at all, be described in euphemistic terms.” Schaill v. Tippecanoe City Sch. Corp., 864 F.2d

1309, 1312 (7th Cir. 1988). In short, “[t]here can be little doubt that a person engaging in

the act of urination possesses a reasonable expectation of privacy as to that act. . . .” Id.;

Lovvorn at 1543 (“The subjective expectation of privacy felt by many individuals when

urinating is undoubtedly one that society is prepared to consider reasonable.”).

Compelled urinalysis encroaches on this expectation of great privacy. As the U.S.

Supreme Court has explained, “it is clear that the collection and testing of urine

intrudes upon the expectations of privacy that society has long recognized as

reasonable….” Skinner at 617. Even when permitted, forcing someone to undergo

urinalysis is “particularly invasive” because it “intimately involves an individual’s

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privacy and bodily integrity.” American Federation of Teachers–West Virginia v. Kanawha

Cty. Bd. of Educ., 592 F. Supp. 2d 883, 892 (S.D. W.Va. 2009). When conducted by direct

observation, compelled urinalysis invades even deeper.

“Direct observation” is a euphemism for staring at someone’s genitals while they

urinate into a cup. It “represents a significant intrusion” into a person’s privacy. See

Wilcher, 139 F.3d at 375–76; American Federation of Teachers–West Virginia at 899. If an

employee showed up to work and gratuitously exposed his or her genitals to others,

that employee should expect to be fired. Society expects—and requires—that we keep

our genitals private. By the same token, we may reasonably expect that we will not be

compelled to show them to a stranger who is not providing us medical care. Being

forced to stand before a stranger, display one’s penis or vagina, and urinate into a cup

as a condition of employment is an indignity from which any sane person would recoil.

It is enough to cause “mental suffering, shame or humiliation to a person of ordinary

sensibilities.” See Housh, 165 Ohio St. 35 at Syll. ¶ 2. When unreasonably mandated by

an employer as a condition of employment, it is an invasion of privacy.

Setting aside the shame and humiliation of being compelled to engage in this

most-private of activities in front of a stranger, forced direct observation is also unduly

intrusive for its potential to disclose irrelevant—but deeply personal—information

about an employee’s body. For instance, the observer might be able to see if an

employee has a visible sexually transmitted disease. The observer would be able to see

8

if a female employee is menstruating, as she could be forced to reveal her used feminine

hygiene products in front of this stranger. Or, as was the case here, an employee might

have embarrassing surgical scarring, put on display for the stranger.

It is true that employers have a general right to drug test employees. See, e.g.,

State ex rel. Ohio AFL-CIO v. Ohio Bureau of Workers’ Comp., 97 Ohio St. 3d 504, 780

N.E.2d 981, 2002-Ohio-6717, ¶ 18. Under certain limited circumstances, employers may

even use the direct observation method. Yet these rights are not without limits. Just as

the defendant in Housh had a general right to collect a debt, but not the right to achieve

that goal in an unreasonable manner, the same holds true here. That employers have a

general right to drug test employees does not mean they enjoy an unbounded right to

do it in any manner. Suspicionless, random direct observation is unreasonable and

violates an employee’s right to privacy.

B. Various federal agencies, and the U.S. Supreme Court, recognize that direct

observation is not necessary to ensure the integrity of employee urinalysis.

Appellants’ direct observation method is more intrusive than what the federal

government requires for commercial airline pilots, the U.S. Coast Guard, and nuclear

power plant workers. For these employees (and others with similarly safety-sensitive

jobs), the federal government mandates a series of steps before, during, and after drug

testing to ensure the integrity of test results. These steps are designed “to protect the

security and integrity of urine collections,” 49 C.F.R. § 40.43, and “to prevent

unauthorized access that could compromise the integrity of collections,” Id. at §

9

40.43(a).1 Appellants’ direct observation method is therefore not only intrusive, it is

unnecessary.

Before the test, the regulations require the monitor take a litany of steps to prevent

tampering. Under the DOT regulations, the monitor must:

(1) Secure any water sources or otherwise make them unavailable to

employees (e.g., turn off water inlet, tape handles to prevent

opening faucets);

(2) Ensure that the water in the toilet is blue;

(3) Ensure that no soap, disinfectants, cleaning agents, or other

possible adulterants are present;

(4) Inspect the site to ensure that no foreign or unauthorized

substances are present;

(5) Tape or otherwise secure shut any movable toilet tank top, or put

bluing in the tank;

(6) Ensure that undetected access (e.g., through a door not in your

view) is not possible;

(7) Secure areas and items (e.g., ledges, trash receptacles, paper towel

holders, under-sink areas) that appear suitable for concealing

contaminants; and

(8) Recheck items in paragraphs (b)(1) through (7) of this section

following each collection to ensure the site’s continued integrity.

1 The U.S. Department of Transportation has promulgated testing procedures for

employees in the aviation, railroad, highway, transit, pipeline, and maritime industries.

49 C.F.R. Part 40; see 14 C.F.R. Part 120 (Federal Aviation Administration); 49 C.F.R. §

219.701 (Federal Railroad Administration); 49 C.F.R. § 382.105 (Federal Motor Carrier

Safety Administration); 49 C.F.R. § 655.51 (Federal Transit Administration); 49 C.F.R. §

199.5 (Pipeline and Hazardous Materials Safety Administration); 46 C.F.R. § 16.113 (U.S.

Coast Guard). The DOT procedures apply to the Coast Guard for drug testing, but not

alcohol testing. See 49 C.F.R. § 40.3. The Nuclear Regulatory Commission has a parallel

testing regime, found at 10 C.F.R. Part 26.

10

49 C.F.R. § 40.43(b). If the testing site is a restroom, the monitor must ensure access to

collection materials and specimens is “effectively restricted,” and that the “facility is

secured against access during the procedure….” Id. at § 40.43(c)(1–2). The Nuclear

Regulatory Commission uses parallel procedures for nuclear power plant workers “to

deter the dilution and adulteration of urine specimens at the collection site.” 10 C.F.R. §

26.87(e).

During the test, the federal government demands additional steps to prevent

cheating. “To avoid distraction that could compromise security,” only one employee

may be tested at a time. 49 C.F.R. § 40.43(d)(1); accord 10 C.F.R. § 26.89(d). When an

employee arrives for testing, the monitor must first confirm the employee’s identity

with a photo ID. 49 C.F.R. § 40.61(c); 10 C.F.R. § 26.89(b). Arriving employees must then

“remove outer clothing (e.g., coveralls, jacket, coat, hat) that could be used to conceal

items or substances that could be used to tamper with a specimen.” 49 C.F.R. § 40.61(f);

accord 10 C.F.R. § 26.105(a). They must leave any “briefcase, purse, or other personal

belongings” with the monitor or in another “mutually agreeable location.” 49 C.F.R. §

40.61(f); accord 10 C.F.R. § 26.105(a). Next, employees must empty their pockets and

show the contents to the monitor. 49 C.F.R. § 40.61(f)(4); 10 C.F.R. § 26.105(b). Above all

else, the monitor “must pay careful attention to the employee during the entire

collection process to note any conduct that clearly indicates an attempt to tamper with a

specimen.” 49 C.F.R. § 40.63(e); accord 10 C.F.R. § 26.107(d).

11

After the test, the regulations command further safeguards to ensure integrity.

The monitor must keep the collection container in view until the specimen is sealed. 49

C.F.R. § 40.43(d)(2). Nobody besides the employee and the monitor may handle it

before it is “sealed with tamper-evident seals.” Id. at § 40.43(d)(3). Immediately after

receiving the specimen, the monitor must check it for sufficiency (at least 45ml),

temperature (90–100 degrees Fahrenheit), and for signs of tampering generally,

including “unusual color, presence of foreign objects or material, or other signs of

tampering.” Id. at § 40.65; accord 10 C.F.R. § 26.111. Various lab tests besides

temperature can be used to ferret out tampering. According to standards published by

the Mayo Clinic, adulteration can be detected by checking pH levels, creatine

concentrations, or urinary nitrite levels. Urine Drug Screening: Practical Guide for

Clinicians, Mayo Clin. Proc. (January 2008), available at:

https://www.mayoclinicproceedings.org/article/S0025-6196(11)61120-8/fulltext (last

visited April 23, 2019).

These are the procedures mandated for some of the most safety-sensitive of jobs.

Yet for none of them is random, suspicionless drug testing permitted by direct viewing

of their genitals while they urinate. The regulations in fact explicitly forbid it as a

standard practice. With limited exceptions discussed below, Nuclear Regulatory

Commission regulations state that the employee “shall provide his or her urine

specimen in the privacy of a room, stall, or otherwise partitioned area (private area) that

12

allows for individual privacy. . . .” 10 C.F.R. § 26.107(a)(1). DOT regulations say the

same thing. 49 C.F.R. § 40.61(d)(1).

Though Appellants claim otherwise, direct observation is not “the only way to

effectively detect and deter cheating on a urinalysis test.” (See Sterilite Br. at 24). That is

the very purpose of the multi-step federal procedures used for the most safety-sensitive

jobs this country has. And the U.S. Supreme Court has placed a stamp of approval on

those procedures as an effective means of not only detecting tampering, but also

deterring employee substance abuse in the first instance.

In National Treasury Employees Union v. Von Raab, 489 U.S. at 656, the Supreme

Court considered similar drug testing procedures for the U.S. Customs Service. Agents

arriving for testing had to produce photo ID and remove any outer garments. Id. at 661.

Then they produced a sample “behind a partition, or in the privacy of a bathroom stall. .

. .” Id. To guard against tampering, a monitor “remain[ed] close at hand” and added

dye to the toilet water “to prevent the employee from using the water to adulterate the

sample.” Id. The monitor then inspected the sample for temperature and color, and

placed a tamper-proof seal over it. Id. On review, the Supreme Court rejected the

argument that the procedures were inadequate to detect cheating. The Court held

employees could not “expect attempts at adulteration to succeed, in view of the

precautions taken by the sample collector to ensure the integrity of the sample.” Id. at

676. That answers the question of detection.

13

The Supreme Court has also addressed the deterrent effect of the federal

procedures. The seminal case Skinner v. Railway Labor Executives’ Association involved a

challenge to testing procedures promulgated by the Federal Railroad Administration

for railroad employees. The procedures did “not require that samples be furnished

under the direct observation of a monitor, despite the desirability of such a procedure to

ensure the integrity of the sample.” Skinner, 489 U.S. at 606. Though acknowledging that

a train “becomes lethal when operated negligently by persons who are under the

influence of alcohol or drugs,” id. at 628, the Court still held the regulations were an

“effective means of deterring employees engaged in safety-sensitive tasks from using

controlled substances or alcohol in the first place.” Id. at 629.

This is not to say direct observation testing is per se unlawful. It is not. Federal

regulations permit direct observation in a limited set of common-sense circumstances

where there is an articulable reason to question the validity or integrity of a given

employee’s test. Federal regulations permit direct observation urinalysis when:

• Lab results show a sample was substituted, diluted, or otherwise

tampered with, or the test results were “invalid” without an

“adequate medical excuse.” 49 C.F.R. § 40.67(a)(1–3), (c)(4); 10

C.F.R. § 26.115(a)(1);

• A sample is outside the required temperature range. 49 C.F.R. §

40.67(c)(3); 10 C.F.R. § 26.115(a)(2);

• The monitor observes conduct indicating an attempt to cheat. 49

C.F.R. § 40.67(c)(2); 10 C.F.R. § 26.115(a)(3);

• An employee previously failed a workplace drug or alcohol fitness-

for-duty test. 10 C.F.R. § 26.69; or,

14

• The test is a return-to-duty or follow-up for an employee who has

returned, or would be returning, from an alcohol- or substance-

abuse leave. 49 C.F.R. § 40.67(b)(5); compare id. at §§ 40.305, 40.309

(return-to-duty and follow-up testing).

The common thread lashing each is some specific basis to doubt the validity or integrity

of the urinalysis. In these situations, direct observation furthers an employer’s

legitimate business needs. The same is not true for a policy of generalized, suspicionless

direct observation. Absent some articulable reason to question the integrity of a given

employee’s test, that manner of testing exceeds the bounds of reasonableness and is an

invasion of privacy.

C. Appellants’ proposed rule would expose every private employee in Ohio to

needless humiliation and indignity as a condition of employment.

It is hard to overstate the practical ramifications of the rule Appellants advocate.

If adopted, it would permit each and every private employer in Ohio to conduct

random, suspicionless direct observation urine testing on each and every one of their

employees. It would license employers to force employees to show their genitals to

strangers as a condition of employment—and to do so without articulable suspicion of

drug use or tampering. Legal secretaries, accountants, hotel maids, fast-food cashiers,

and the millions of Ohioans in countless other private-sector jobs could be ordered, at

random, to disrobe and show their penises or vaginas to a stranger while urinating into

a cup, or else be fired. To impose that Orwellian indignity on the people of Ohio would

be inconsistent with the ingrained “right of a person to be let alone. . . .” See Housh, 165

15

Ohio St. at Syll. ¶ 1. OELA is unaware of any other state that does so. The federal

government certainly does not. Ohio should not either.

On the other hand, an approach tracking federal law would be both reasonable

and workable. It would permit direct observation testing, but only when there is an

articulable reason to believe it necessary to ensure test integrity. See 49 C.F.R. § 40.67; 10

C.F.R. § 26.115. And it would afford due respect for an employer’s legitimate interest in

detecting substance abuse at work, while avoiding the “significant intrusion” on

personal privacy from direct observation. See Wilcher, 139 F.3d at 375–76.

In part for this reason, Appellants’ allusion to public safety rings hollow. Few

jobs are more safety-sensitive than commercial airline pilot, nuclear power plant

worker, or train conductor. Compare American Federation of Teachers–West W.Va., 592 F.

Supp. 2d at 903 (“A train, nuclear reactor, or firearm in the hands of someone on drugs

presents an actual concrete risk to numerous people. . . .”). Mistakes in these jobs can

cause (and have caused) absolute calamity. But when they are drug tested, they are not

subjected to the same degree of personal intrusion Sterilite defends for its private-sector

employees. If the federal testing procedures adequately protect the public from the

perils of intoxicated airline pilots, train conductors, and nuclear power plant workers—

despite the lack of direct observation—they are equally up to the task for the bulk of

Ohio’s private employees, whose jobs are not so safety-sensitive.

16

CONCLUSION

For the reasons stated above, this Court should affirm.

Respectfully submitted,

Matthew D. Besser (0078071)

*Counsel of Record

BOLEK BESSER GLESIUS LLC

Monarch Centre, Suite 302

5885 Landerbrook Drive

Cleveland, Ohio 44124

Phone: 216.464.3004

Fax: 866.542.0743

mbesser@bolekbesser.com

Counsel for Amici Curiae

Ohio Employment Lawyers Association

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing was served by

electronic mail this 1st day of May, 2019 upon the following:

S. David Worhatch

Counsel for Appellees

John N. Childs

Daniel J. Rudary

Counsel for Appellant Sterilite of Ohio, LLC

Daniel A. Richards

Joshua M. Miklowski

Counsel for Appellant

U.S. Healthworks Medical Group of Ohio, Inc.

Counsel for Amici Curiae