I can’t speak for every state, but in my state the answer is an unequivocal “yes.” It’s perfectly legal to require the direct observation of an employee peeing for a new hire or workplace drug test.
According to the Ohio Supreme Court, “When an at-will employee consents, without objection, to the collection of the employee’s urine sample under the direct-observation method, the at-will employee has no cause of action.” In other words, employees voluntarily consent by submitting to the drug screen instead of quitting their jobs or refusing the test and facing termination.
While I certainly understand the at-will nature of employment, I’m still troubled when direct observation is unilaterally imposed without limitation for the specific interest the employer is trying to uphold (i.e., suspected cheating).
Thus, what advice would I provide if a client asks me about implementing a "direct observation" policy?
1.) I’d ask, “Why?” What are you trying to achieve? Are there less obtrusive means available to prevent employees from cheating a drug test (e.g., searches before they enter the restroom, pat-downs, etc.)? Does it make more sense to limit direct observation to situations in which you have a reasonable suspicion of cheating?
2.) Make sure all employees have notice of the direct observation and when you might use it. Put it in your drug-testing policy, and have employees sign off on it as an express condition of employment. With notice and consent, they can’t complain about any invasion of privacy (legal or illegal), as they’ve voluntarily given up that right.
3.) If you require direct observation, make sure you allow for reasonable accommodations for certain employees’ disabilities that could implicate the observation, such as shy bladder syndrome.
Just because a court gives a thumbs-up to a policy for the direct observation of pee tests does not mean that the policy makes for a good HR practice that you should adopt. Instead, consider the specific goals you hope to advance with your drug-testing policy, and tailor it accordingly.