Liability of a Laboratory for Negligent Employment or Pre-Employment Drug Testing

Posted: 11 Oct 1999

See all articles by Amy Newnam

Amy Newnam

Schnader Harrison Segal & Lewis

Jay M. Feinman

Rutgers Law School

Abstract

In response to the threat of drug use in the workplace, employers have instituted a variety of drug testing procedures for employees and potential employees. The proliferation of employee drug testing policies has sparked a series of legal claims regarding the accuracy of the test results. Job applicants and employees have challenged the procedures used by the laboratories, the information given to employers, the accuracy of the results, and the employers' reliance upon the results. However, the courts are split on whether to impose liability against drug testing laboratories. The courts that impose liability typically apply general negligence principles, while the courts that refuse to impose liability fail to apply basic tort doctrine. The former courts reach the correct result because they begin with a duty analysis and ultimately determine that a relationship exists between drug testing laboratories and employees such that it is appropriate to require the laboratories to act reasonably during all stages of the drug test. Courts that do not impose liability apply an incomplete and incorrect duty analysis. One reason for not imposing liability on laboratories is the potential threat of indeterminate liability that arises upon dispensation of the privity requirement. In drug testing cases, there is no contractual relationship between the laboratory and the tested individual, and the alleged harm is economic rather than physical. This situation can lead to extensive and unexpected liability should a duty be imposed between the parties. Indeterminate liability is a valid concern for courts in cases of economic loss, but in the area of employee drug testing, the danger of widespread and unchecked liability is limited. This article explores the current law's disparate treatment of employee drug testing claims. It argues that employee drug testing cases are most appropriately analyzed under the doctrine of general tort negligence. Courts should incorporate the general principles of negligence and should approach each claim with a complete duty analysis. Applying a duty analysis will lead to a doctrinally-defensible, clear legal framework for deciding future drug testing claims by employees and job applicants.

Suggested Citation

Newnam, Amy and Feinman, Jay M., Liability of a Laboratory for Negligent Employment or Pre-Employment Drug Testing. Available at SSRN: https://ssrn.com/abstract=185788

Amy Newnam

Schnader Harrison Segal & Lewis ( email )

1600 Market Street, Suite 3600
Philadelphia, PA 19103-7286
United States
215/751-2000 (Phone)
215/751-2205 (Fax)

Jay M. Feinman (Contact Author)

Rutgers Law School ( email )

Newark, NJ
United States
856-225-6367 (Phone)

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