October 25, 2020

Volume X, Number 299

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October 23, 2020

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Employer’s Request to Count Employee’s Prescription Medication Sufficient to Support Invasion of Privacy Claim

A federal court in Alabama held that an employer’s request to count an employee’s prescription medication – in connection with a drug test that the employee passed – supported the employee’s claim for invasion of privacy. Effinger v. Birmingham-Jefferson County Transit Authority, Case no. 2:19-cv-00766-KOB (N.D. Al. Jan. 23, 2020).

The plaintiff was a former employee employed as a bus driver for the Birmingham-Jefferson County Transit Authority. According to the bus driver, she was required to undergo a drug test that was labelled a “post-accident drug test” on a form that she was made to sign (even though she had not been involved in an accident). She then was required to submit to a directly-observed urine collection and suspended pending receipt of the drug test result.

A week later, the bus driver returned to work to discuss her drug test result, which she had passed. The employer required her to bring her medications with her. The bus driver brought empty containers for her birth control and another medication that was prescribed to be taken “as needed” when off-duty since her involvement in a bus accident five years earlier. The employer’s Human Resources representative told the bus driver that she was required to bring the actual medication to work so that the Human Resources representative could count it. The bus driver refused, because she thought that the handling of her medication would be unsanitary and unnecessary.

The bus driver’s employment subsequently was terminated, allegedly due to a perception that she was “mentally ill” and posed a “direct threat” of harm. She filed suit, alleging among other things that she was “regarded as” disabled, and that the request to count her medication constituted an invasion of privacy.

The employer made a motion for judgment on the pleadings which the court denied. Specifically, the court held that the bus driver adequately pled that she was terminated based on a perception that she was disabled, i.e., mentally ill.   Moreover, she adequately pled her invasion of privacy claim. The court held that “a reasonable person could find that a coerced investigation of medication meant to be ingested, constitutes a highly offensive intrusion into personal affairs that would cause outrage or mental suffering.” In addition, a reasonable person could find the request to count the medication suspect given that the bus driver already had passed the drug test.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 38
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About this Author

Kathryn J. Russo Disability Lawsuits Attorney Jackson Lewis Law firm Alcohol Testing Lawyer
Principal

Kathryn J. Russo is a Principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws.

Ms. Russo assists clients with workplace problems involving drugs and alcohol, and gives advice about compliance with all pertinent drug and alcohol testing laws. She prepares substance abuse policies to comply with all federal drug and alcohol testing regulations (including all agencies of the U.S....

631-247-0404
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