A federal court in Pennsylvania has allowed an employee to proceed with a wrongful discharge/invasion of privacy claim related to her discharge after a positive drug test result. Wilkinson v. Marvin E. Klinger, Inc., Case No. 4:15-cv-01916, 2016 U.S. Dist. LEXIS 58340 (M.D. PA. May 3, 2016).

Plaintiff, a 58-year old school bus driver, was terminated after taking a random drug test pursuant to her employer’s written policy and testing positive for opiates (including codeine). Plaintiff alleged that she was prescribed medications containing opiates and/or codeine due to migraines and sciatica. She asserted claims under the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Pennsylvania Human Relations Act, and wrongful discharge/invasion of privacy. She argued that her termination raised public policy implications because she was “fired for taking legally prescribed narcotics for legitimate medical reasons.”

The employer’s drug testing policy prohibited the use of illegal drugs or legal drugs that could impact the employee’s ability to perform the job safely. The drug testing procedures included review of all positive drug test results by a Medical Review Officer to determine whether the positive test result was caused by lawful prescription drug use.

When the employer moved to dismissed the complaint, the Court dismissed the age discrimination claim, but allowed Plaintiff to proceed with all of her other claims. With regard to the wrongful discharge/invasion of privacy claim, Plaintiff relied on Borse v. Piece Goods Shop, Inc. 963 F.3d 611 (3d Cir. 1992), arguing that there were public policy implications arising from her discharge because she alleged she was fired for taking legal prescriptions medications for legitimate medical reasons. In Borse, the Third Circuit Court of Appeals held that terminating an employee for refusing to consent to a drug test may violate Pennsylvania’s public policy against tortious invasion of privacy. The court adopted a test for tortious invasion of privacy wrongful discharge claims, requiring the balancing of “the employee’s privacy interest against the employer’s interest in maintaining a drug-free workplace in order to determine whether a reasonable person would find the employer’s program highly offensive.”

The employer argued that Plaintiff could not maintain an invasion of privacy or wrongful discharge claim because she consented to the drug test. However, the Court allowed the claim to proceed and stated that Plaintiff was entitled to obtain discovery on the drug and alcohol policy and its implementation so the Court could properly conduct a “fact-intensive analysis” and balancing test to determine whether the employer’s drug policy was intrusive on her seclusion or invaded her privacy.