What happens when a drug testing collection facility or lab makes a mistake in conducting required drug testing?  Well, in certain limited circumstances the mistake could afford a defense to regulatory actions against the employee based upon what would otherwise be a positive test.
However, in most other circumstances the employee would suffer the regulatory consequences of a positive test (e.g. revocation of certificates, referral to a substance abuse professional (“SAP”), rehabilitation, etc.).  And the employee could lose his or her job.
But what if the employee knows that the positive test was incorrect (he or she did not use the substance for which the employee tested positive)?  Unfortunately, from a regulatory perspective the employee has little recourse.  However, at least in Texas, the employee may be able to sue the collection facility and/or testing lab for any negligence that resulted in the incorrect, positive test result.

The Court of Appeals Case

A recent case in the Texas Court of Appeals addressed this situation.  In Mendez v. Hous. Harris Area Safety Council, Inc., the employee submitted to a random drug test that returned a positive test result for cocaine.  Disagreeing with that result, the employee submitted to two additional tests which were both negative for cocaine.
The employee was initially terminated, but after receiving the negative test results the employer rescinded the termination.   However, the employee was still required to meet with the SAP and comply with any required rehabilitation before he could return to work.
Believing that the original collection facility and testing lab had made mistakes causing the incorrect positive result, the employee sued both.  The trial court dismissed the employee’s negligence claims holding that neither the collection facility nor the testing lab owed the employee a duty of care. In the absence of a duty of care, neither could be liable for negligence.
The Texas Court of Appeals disagreed.  It held that:

when an individual is required, as a condition of employment, to submit to drug testing, the law recognizes a duty to use reasonable care in collecting and processing biological samples between third-party collection and testing agencies and the employees they test.

The Court went on to observe that it was not deciding whether the employee had alleged sufficient facts regarding an actual failure or capability of producing a false result on the part of the collection facility or the testing lab. The employee would still need to allege facts sufficient to create a genuine issue of material fact as to breach, causation, or damages.
Thus, the Court remanded the case back to the trial court where those issues will be decided.


The takeaway from this case is that in Texas (and some other states), an employee subject to drug testing may be able to sue the collection facility and/or testing lab for negligence.  However, it is important to keep in mind that the employee will still need to prove how the collection facility and/or testing lab failed to use reasonable care in collecting and processing the employee’s sample.
That is, the employee will need to present evidence showing exactly what was done incorrectly and how that error resulted in the incorrect test result.  Potentially a high burden that will require expert testimony. But at least the aggrieved employee will have that opportunity.

The post Can A Collection Facility Or Testing Lab Be Sued For Negligently Conducting Drug Testing? In Texas They Can. appeared first on Shackelford, Bowen, McKinley & Norton, LLP.