The existence of a “duty of care” to employees who may lose their jobs for failing drug tests was not recognized in Texas until just recently. But now, thanks in great part to Bob Goodman, a member of Kilgore & Kilgore, employees have far greater protections from the negligence of third-party drug testing companies. Kilgore Law has always championed the cause of the employee. This latest case is just the most recent court decision representing our ongoing fight to protect employee rights in Texas.
In April 2021, the Court of Appeals of Texas, First District, Houston, in Mendez v. Houston Area Safety Council, Inc., declared 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.” Prior to this decision, employees who failed their drug tests in Texas did not have this protection.
Our Texas Employment Lawyers Can Help Employees Who Receive False Drug Test Results
If you lost your job or an employer refused to hire you because of a false positive result on a drug test, our Texas employment lawyers can help you assess your situation and develop the best response to get you back on track with your career. Now that the law has changed, you may be able to recover against a specimen collector or third-party testing company who issued your false drug test. Use this link to get the conversation started about your situation Contact Kilgore & Kilgore. And, click this link to learn more about our employment law practice.
False Positive Results on a Hair Sample in a Drug Test
Mr. Mendez was employed by Turnaround Welding Services, Inc. Turnaround’s customer, Valero, required all employees assigned to its jobsite to submit to a drug test and alcohol screening. Mendez was assigned to Valero’s jobsite. Following Turnaround’s instructions, Mendez reported to the Houston Area Safety Council (HASC) to get tested. He provided urine a sample and performed an alcohol breathalyzer test. Mendez’s hair sample was taken from his chest because the hair on his head was too short for sampling.
The hair sample was sent to Psychemedics laboratory for testing. Mendez’s hair sample tested positive for cocaine at a level over three times the specified cutoff level for presence of cocaine in a hair sample. It also tested positive for cocaine metabolites, which are produced in the human body after ingestion of cocaine.
Two days after he reported for work at Valero, Mendez was told that he needed to go for another drug screen. He provided a second hair sample, which was collected by a different service provider, DISA Global Solutions, Inc., and used hair from his head rather than chest. The sample was again sent to Psychemedics for testing. This time the hair sample tested negative for cocaine. Nonetheless, Mr. Mendez lost his job because of the results of the first test.
He obtained a third hair sample test at his own expense. This test was sent to a different laboratory, and it came back negative. Nonetheless, Turnaround did not allow him to go back to work on Valero’s site, and he was not assigned to a new jobsite. He was forced to take unemployment compensation benefits until he finally found a new employer.
Mendez sued HASC and Psychemedics alleging that they were negligent in administering and analyzing the first hair follicle drug test and that because of their negligence, he lost his job and income. Psychemedics and HASC filed a motion for summary judgment, arguing that they did not owe him a “duty of care” under Texas law. The trial court granted the motion for summary judgment. Mendez appealed.
A Quick Dive into Negligence Law
An individual who sues for negligence must show three things:
- That the defendant had a legal duty to the injured person.
- That the defendant breached that duty.
- That the plaintiff was harmed because of that failure. The harm that a plaintiff ultimately suffers must be a foreseeable consequence of the failure.
At the first trial, the court never got beyond the first bullet point above, reasoning that if no duty exists, then the two subsequent issues are moot. Mr. Mendez had argued that HASC and Psychemedics owed him a duty of care in four specific ways:
- not to administer or analyze a hair follicle drug test they knew to be scientifically questionable;
- to take reasonable precautions while administering and analyzing a hair follicle drug test;
- not to rely upon a hair follicle drug test, as opposed to urinalysis, as the basis for a report of a positive drug test to his employer; and
- not to report the positive hair sample to his employer given the “questionable status” of the test.
Whether a third party owes an employee a duty of reasonable care when conducting a drug test required by an employer was a new question in Texas. Many other states already recognize some duty of drug testing specimen collectors and testing laboratories to non-contracting employees whose biological specimens are tested for drugs.
The Decision and What it Means for Drug Tests
The Court of Appeals decision focuses particularly on the issue of foreseeability. Haphazard or deficient collection methods could clearly contaminate samples for testing that could lead to an inaccurate report to employers. It is foreseeable, the court recognized, that inaccurate results could lead to adverse employment consequences, such as termination, for employees. An employee who is terminated for a positive drug test faces immediate consequences, namely the loss of income and livelihood. He or she also faces long- term, potentially career-ending consequences because of the resulting negative job history that follows the employee.
The Appeals Court reversed the trial court’s summary judgment on the issue of duty and sent the case back to the trial court for further proceedings. Mr. Mendez will now have the chance to show that HASC and Psychemedics failed in the “duty of care” that they owed him and that he was harmed in foreseeable ways by this failure.
Employees who have suffered the consequences of a botched employment drug test now have new rights – not necessarily against the employer or prospective employer (although that is an open question, the subject of an appeal in another, federal case by Mr. Goodman), but against the company that was careless with the test. The effects of such a negligence can last for years, harming an innocent employee in his or her career.
Our Employment Lawyers Can Help You with the Consequences of a Faulty Drug Test
Did a faulty drug test cost you your job? We know what chaos and confusion this can create in your life. Reach out to our employment lawyers by filling out a form and sending it to us for a free initial consultation. Click here to get the conversation started contact Kilgore & Kilgore.