In late September, a federal court in Maryland ruled that the state drug and alcohol testing statute does not permit employers to conduct breath alcohol tests.

In Whye v. Concentra Health Services, Inc., two employees who had been subjected to multiple breath alcohol tests by their employer filed suit against the testing provider alleging invasion of privacy and fraud, as there is no private right of action under Maryland’s workplace drug and alcohol testing law.  According to the employees, because the device used by the testing provider collected the test subject’s breath in a tube for chemical analysis, but did not preserve any of the breath for later testing, use of the device violated the testing law.

The testing provider filed a motion to dismiss the employees’ invasion of privacy and fraud claims.  Before reaching the merits of the claims, the court analyzed whether the testing law permits breath alcohol testing.  First, the court observed that the law defines a specimen appropriate for testing as blood, urine, hair, or saliva.  According to the court, because Maryland follows the statutory interpretation principle of “the expression of one thing is the exclusion of another,” the list of specimens in the statute is an exclusive list.  Second, the court examined the legislative history of the law and discovered that it had been amended twice in the past to add hair and saliva as appropriate specimens.  Moreover, four recent attempts to amend the law to add breath as a specimen have failed.  Third, the court noted that a stated goal of the law was to allow test subjects to challenge positive test results by requesting an independent analysis of the same specimen.  However, the breath alcohol devices used by the testing provider did not allow for retesting of the breath specimens.  Lastly, the testing provider had requested a Declaratory Ruling regarding the legality of breath alcohol testing from the Maryland Department of Health and Mental Hygiene, which administers the testing law.  The Declaratory Ruling stated that “an employer may not require job-related breath testing for alcohol use.”

The court dismissed with prejudice the invasion of privacy claim, finding that the employees failed to establish that they had a reasonable expectation of privacy in their breath or that the testing procedure was highly offensive to a reasonable person.  The court dismissed without prejudice the fraud claim, finding that the employees failed to allege a deliberately false representation made with the intent to deceive in relation to the chain of custody form used by the testing provider.  The employees were granted 14 days to amend their fraud claim.

In sum, among other things, the court ruled that the Maryland drug and alcohol testing law does not allow private employers to require breath alcohol testing of employees.  Minnesota is the only other state which currently prohibits workplace breath alcohol testing.

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