A frequent issue for employees in today’s workplaces is drug testing. All too often the drug testing laboratory makes a mistake. The lab mistakenly finds Joe Worker tested positive for cocaine. But, it is a false positive. What does Joe do? The Texas Supreme Court re-affirmed what it said in prior cases: Joe can do nothing.

In Houston Area Safety Council v. Mendez, 671 S.W. 3d 580 (Tex. 2023), Guillermo Mendez received a false positive for cocaine. Mendez was a pipefitter. He had been tested many times in his previous 25 years. He was employed by Valero Ardmore Refinery. Valero referred him to Houston Area Safety Council for the drug test. HASC then sent his sample to Psychemedics for testing. Psychemedics produced a positive result. A second sample was then sent a different collection entity, DISA Global Solutions. The second sample came back negative. Mendez then sent a third sample to a third lab at his own expense, which also came back negative.

Mendez was required to complete a substance abuse course, which he did. But, Valero still refused to take him back. His actual employer, Turnaround Welding then fired him. Mendez won in front of the court of appeals. The appellate court found that the laboratory owed a duty of reasonable care to Mr. Mendez. On appeal to the Texas Supreme Court, however, the higher court disagreed,

The Texas Supreme Court noted that lower courts around the country have split whether an employer owes a common law duty to its employees. Only five state supreme courts have found such a duty. The court noted that the laboratory assured the court that the risk of an error was so low as to be essentially “non-existent.”

Foreseeability

The court acknowledged that the court of appeals found that the labs were in the best position to safeguard the drug tests. Thus, they should be held responsible. But, the Supreme Court disagreed, finding that the risk of harm lay with the employer. It was the employer who decided whether to terminate a worker due to a false positive. The lab has no control over what the employer does. If labs were held responsible, they would or could transfer that responsibility to employers via indemnity agreements.

So, the Texas Supreme Court found no one was responsible for the employee’s false positive. But, at his apparent age, this was a life-defining moment. Anyone’s career would be placed in great jeopardy due to a positive drug test. Yet, the Supreme Court engaged in rationalization and sophistry. It found the lab was virtually never at fault. Then, the court found no causal relationship between the false positive and the employer’s action. The court said the lab had no control over what the employer does and no knowledge of what they might do. The court essentially erected an artificial barrier between the actions of the lab and the employer. Any lab would know that termination was a possible, if not likely outcome of a positive drug test.

The Texas Supreme Court accepted the lab’s argument regarding foreseeability simply based on the lab’s broad assurance that the chances of a false positive are virtually “non-existent.” Virtually non-existent means some chance is in fact existent. I get those calls from frustrated workers with false positives often enough to know they do occur. They occur often enough that foreseeability is an issue. See the decision in Houston Area Safety Council v. Mendez here.