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Pennsylvania Employee Proceeds With Invasion of Privacy Claim Arising Out Of Positive Drug Test Result

By Catherine A. Cano on May 12, 2016
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A federal court in Pennsylvania has allowed an employee to proceed with a wrongful discharge/invasion of privacy claim related to her discharge after a positive drug test result. Wilkinson v. Marvin E. Klinger, Inc., Case No. 4:15-cv-01916, 2016 U.S. Dist. LEXIS 58340 (M.D. PA. May 3, 2016).

Plaintiff, a 58-year old school bus driver, was terminated after taking a random drug test pursuant to her employer’s written policy and testing positive for opiates (including codeine). Plaintiff alleged that she was prescribed medications containing opiates and/or codeine due to migraines and sciatica.  She asserted claims under the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Pennsylvania Human Relations Act, and wrongful discharge/invasion of privacy.  She argued that her termination raised public policy implications because she was “fired for taking legally prescribed narcotics for legitimate medical reasons.”

The employer’s drug testing policy prohibited the use of illegal drugs or legal drugs that could impact the employee’s ability to perform the job safely. The drug testing procedures included review of all positive drug test results by a Medical Review Officer to determine whether the positive test result was caused by lawful prescription drug use.

When the employer moved to dismissed the complaint, the Court dismissed the age discrimination claim, but allowed Plaintiff to proceed with all of her other claims. With regard to the wrongful discharge/invasion of privacy claim, Plaintiff relied on Borse v. Piece Goods Shop, Inc. 963 F.3d 611 (3d Cir. 1992), arguing that there were public policy implications arising from her discharge because she alleged she was fired for taking legal prescriptions medications for legitimate medical reasons.  In Borse, the Third Circuit Court of Appeals held that terminating an employee for refusing to consent to a drug test may violate Pennsylvania’s public policy against tortious invasion of privacy.  The court adopted a test for tortious invasion of privacy wrongful discharge claims, requiring the balancing of “the employee’s privacy interest against the employer’s interest in maintaining a drug-free workplace in order to determine whether a reasonable person would find the employer’s program highly offensive.”

The employer argued that Plaintiff could not maintain an invasion of privacy or wrongful discharge claim because she consented to the drug test. However, the Court allowed the claim to proceed and stated that Plaintiff was entitled to obtain discovery on the drug and alcohol policy and its implementation so the Court could properly conduct a “fact-intensive analysis” and balancing test to determine whether the employer’s drug policy was intrusive on her seclusion or invaded her privacy.

Photo of Catherine A. Cano Catherine A. Cano

Catherine A. Cano is a principal in the Omaha, Nebraska, office of Jackson Lewis P.C. Catherine represents management in all areas of labor and employment law.

Catherine helps clients navigate obligations under the Americans with Disabilities Act, Family and Medical Leave Act, and…

Catherine A. Cano is a principal in the Omaha, Nebraska, office of Jackson Lewis P.C. Catherine represents management in all areas of labor and employment law.

Catherine helps clients navigate obligations under the Americans with Disabilities Act, Family and Medical Leave Act, and state disability and leave laws. She also counsels clients on workplace drug and alcohol issues, including developing substance abuse policies. Catherine has defended more than 100 charges of discrimination filed with federal, state and local administrative agencies, and regularly appears before the U.S. Equal Employment Opportunity Commission, Iowa Civil Rights Commission and Nebraska Equal Opportunity Commission. Catherine represents in employers in federal and state court proceedings and has successfully defended multiple employment arbitrations.

Catherine’s practice also includes assisting clients with union organization campaigns, collective bargaining, grievance arbitrations, and unfair labor practice charges. Catherine also has experience defending employers against whistleblower claims filed with the Occupational Health and Safety Administration.

Read more about Catherine A. CanoEmail
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  • Posted in:
    Employment & Labor
  • Blog:
    Drug and Alcohol Testing Law Advisor
  • Organization:
    Jackson Lewis P.C.
  • Article: View Original Source

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