Texas Court: Employer Can Conduct Own Drug Test

May 27, 2003 (PLANSPONSOR.com) - An at-will employee is not entitled to a common-law duty of reasonable care when an employer conducts a mandatory drug test that ultimately leads to dismissal.

The Texas Supreme Court held in Mission Petroleum Carriers Inc. v. Solomon that a common-law duty should not be imposed on a trucking firm that uses its own employees rather than an independent lab to collect urine samples for drug testing.   This finding was based on U.S. Department of Transportation (DOT) regulations that govern the collection of urine samples and provide an employee an opportunity to challenge a false-positive test result, according to report by Texas Lawyer.

These regulations impose rules for administering the drug tests and authorize fines for companies that do not follow the rules, Justice Wallace Jefferson said in the court’s opinion. Further, an employee can refuse to sign the custody and control form, which must be signed before a drug test can be verified, according to the opinion.

Drug Test

Mission randomly selected Roy Solomon, a truck driver working out of its Beaumont, Texas terminal, for drug testing in April 1997 and used one of its own employees to collect a urine sample. After Solomon tested positive for marijuana use, he was fired by Mission and, with Solomon’s consent, disclosed the test results to other trucking companies, which declined to hire him. The action was in accordance with DOT regulations that require a prospective employer to review an applicant’s test results from previous employers for the two years before the date of the job application.

At Solomon’s request, Mission sent a second urine sample to a different laboratory for analysis and the results were the same, testing positive for marijuana use.   However, Solomon continued to deny using marijuana and subsequently passed an independent laboratory’s hair-follicle test designed to detect use of the drug.   The hair analysis, however, was done 84 days after the urine test, and Solomon conceded, did not confirm or refute whether he smoked marijuana around the time Mission collected his urine sample.

Solomon initially sued Mission for defamation but later added claims for business disparagement and negligence. Solomon argued to the 9th Court of Appeals and the Texas Supreme Court that Mission failed to follow DOT protocols, including requirements that the employee and collector must be present when the container for a urine sample is removed from a sealed kit and the use of a collection site where access is restricted. The terminal restroom, where employees were sent to collect samples, was used by all the employees and was cleaned only twice a week, the 9th Court noted in its opinion.

The state high court justices disagreed on whether Solomon’s claim against his former employer implicates Texas’ employment-at-will doctrine.   “If a duty of care were to arise every time the harm to an employee transcends the employment agreement, the employment-at-will doctrine would be undermined because an employer’s basis for termination would have to be justified by a reasonable investigation, which is contrary to the doctrine,” Jefferson wrote.

The Texas Supreme Court’s ruling reverses a 2001 decision by Beaumont’s 9th Court of Appeals.