The New York Court of Appeals’ 4-3 decision allowing subjects of drug tests to sue laboratories for “negligent testing” may hold a lesson for employers who desire to test their employees, particularly when conducting on-site testing using specimens other than urine. It illustrates risks that attend employment-related drug testing, although the issue in the case was whether a laboratory that contracted with a county probation department to analyze drug tests performed on probationers may be liable to a test subject for a negligent drug test. Landon v. Kroll Laboratory Specialists Inc., 2013 NY Slip Op 6597 (Oct. 10, 2013). 

Background

Eric Landon had been convicted of forgery and was serving a sentence of five years’ probation. Unannounced drug testing was a condition of the sentence. The County probation department had contracted with Kroll to analyze these tests. The oral fluid test had been developed by a test manufacturer. The method of testing was specified in the contract with the laboratory. As Landon was nearing the end of his sentence, the department required him to submit to a drug test. It was administered by Landon’s probation officer using the oral fluid collection device and sent anonymously to the laboratory for analysis. No urine specimen was collected at the time, according to the complaint. 

Landon’s test result was reported to the probation department as positive for THC (the active component in marijuana). As a result, Landon’s probation was extended by several months and he was accused of violating his probation, which could have resulted in imprisonment. He was subjected to additional administrative proceedings for which he was required to retain an attorney (although the charges were later dropped). He brought a class action suit against the laboratory for negligence, saying the testing and result were flawed. The laboratory denied the allegations, asserting among other things, it had breached no duty toward Landon.

Evidently anticipating the possibility of a positive test result from the probation department-ordered test, the same day Landon independently obtained his own blood test for drugs shortly after providing the specimen to the probation department. The result of that test was negative for illicit or controlled substances. Further, Landon asserts that on the day he was arraigned for an alleged probation violation (the day before his probation originally was scheduled to end), he submitted to an additional urine drug test at the direction of the probation department. This test also produced a negative result. 

Allegations

Landon’s allegations that the positive test result was flawed may be of a particular interest to employers. He claimed in his 2007 complaint that: 

(1) the laboratory’s oral fluid screen cutoff level for THC was also substantially lower than the test manufacturer’s recommended screen test level for THC and substantially lower than that proposed by the U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (“SAMHSA”), in its 2004 proposals for alternatives to federal workplace urine drug testing (though they were not adopted); 

(2) no simultaneous urine sample was taken from him at the time of his oral fluid test (also as proposed by SAMHSA in 2004); 

(3) the laboratory’s testing did not comply with the relevant New York State Department of Health Forensic Toxicology Laboratory Standards, including a requirement that no positive result be reported unless the sample was subjected to confirmation testing by gas chromatography/mass spectrometry (“GC/MS”); 

(4) the laboratory had knowledge of the potential for false positive readings for THC when using oral fluid without a simultaneous urine sample; and 

(5) the laboratory failed to disclose many of these alleged issues in its test report. 

Majority Decision

New York’s highest court, affirming an intermediate court’s ruling, established a new negligence cause of action in New York against a drug testing laboratory, allowing a test subject to sue the laboratory despite the absence of any contractual relationship, but rendered no opinion on whether the laboratory was negligent. Accepting Landon’s allegations as true for purposes of deciding whether a suit could be brought at all, a majority of the court said a negligence claim could be advanced where a laboratory did not exercise reasonable care in the testing of the plaintiff’s biological sample by failing to adhere to professionally accepted testing standards and consequently releasing a report finding that the plaintiff had tested positive for THC. It had a duty to test the plaintiff’s specimen in keeping with relevant professional standards, the Court explained. The laboratory’s contract with the county, the Court said, would not immunize it from liability for “launching a force or instrument of harm.” The majority also cited the absence of any statutory remedy for the harm caused to the plaintiff by an allegedly false positive drug test and the negative test results he received on two other drug tests as factors in its decision. The former would “have profound, potentially life-altering consequences for a test subject,” it worried.

Dissents

Judge Eugene F. Pigott, with whom Judge Susan P. Read concurred, dissented on the ground that the majority defined duty too broadly. He indicated that the laboratory apparently did precisely what it had contracted to do for the county probation department, and that it was the probation department in its discretion that decided to test Landon, took the oral fluid sample, specified contractually the testing method and cutoff levels, failed to take a simultaneous urine specimen, and acted on the results reported by the laboratory in charging Landon with a violation of probation and pursuing those proceedings. Any relief, therefore, would be better directed against the probation department, Judge Pigott concluded. He suggested, however, that cutoff levels developed for workplace drug testing might be distinguishable from those employed here.

Judge Robert S. Smith, dissenting, thought the plaintiff misconstrued his remedy. He believed the complaint should sound in defamation, if at all. There was no good reason to invent a new tort, in his view. However, he thought, such a claim probably would be met with a defense of “common interest” privilege (allowing communications of even erroneous information between two parties with a common interest in the subject), which could be overcome only by a showing of malice. The law of defamation would impose a high hurdle to be overcome, but public policy warranted restrictions on such claims, the dissent maintained, to protect the free flow of important information. 

Implications

Laboratories performing drug test analyses, of course, are directly affected by this decision. Workplace drug testing is not excluded from the reach of this decision as far as laboratories are concerned. However, even employers interested in risk avoidance should find the allegations instructive, as well as Judge Pigott’s dissent. Without addressing the merits of the complaint, the likelihood that any particular employment drug test result may be questioned can be reduced by adopting a conservative approach to testing. This may include: 

(1) using urine specimens, because they are approved by SAMHSA and the U.S. Department of Transportation for workplace drug testing; 

(2) adopting conventionally recognized cut off levels for drugs or metabolites (such as those used by SAMHSA and the DOT); 

(3) ensuring that any initial test that produces a non-negative result is accompanied by a second, confirmation test, using a methodology of equal or better accuracy, often including a gas chromatography/mass spectrometry urinalysis (because of its general acceptance); 

(4) providing a test subject in the case of a positive result an opportunity for the testing of a “split” specimen, or a confirmatory retest, at the employee’s request, where a suitable specimen for the purpose can be obtained; and 

(5) having a medical review officer, who may be able to distinguish lawful drug use from unlawful abuse where a positive test result is reported, review laboratory results. This can help avoid incorrect and stigmatizing results.