Third-Party Drug Testing Companies Do Not Owe Duty to Tested Employees

Drug testing is much more common these days, especially with the availability of various substances. What happens when a drug-testing company hired by the employer performs drug-testing and gets it wrong. Can the employee sue the third-party drug-testing company for negligence? In an opinion released today by the Supreme Court of Texas, the Court held that third-party companies hired by the employer do not owe the employees they test a common-law duty of care. See Hous. Area Safety Council v. Mendez, __S.W.3^rd ___, 2023 WL ____ (Tex. June 23, 2023).

In Mendez, the employee had to submit and submitted to a random drug test as part of his employment. While the urine sample was negative, the hair sample was positive for cocaine and cocaine metabolites. Two subsequent hair tests came back negative, but the employer refused to assign the employee to any jobsites. The employee then sued the third-party drug-testing companies that administered and analyzed the first hair sample, resulting in a false positive that cost the employee his job. Rejecting the negligence claim, the Supreme Court of Texas concluded that the risk-utility factors set out in Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523 (Tex. 1991) weigh against imposing such a duty and that declining to recognize such a duty is consistent with existing tort law.

In Greater Houston Transportation Co., the Supreme Court of Texas set out the risk-utility factors and held that “The common law doctrine of negligence consists of three elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975). The threshold inquiry in a negligence case is duty. El Chico, 732 S.W.2d at 311. The plaintiff must establish both the existence and the violation of a duty owed to the plaintiff by the defendant to establish liability in tort. Id. Moreover, the existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 312 (Tex.1983). In determining whether the defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. See Id. at 309. Of all these factors, foreseeability of the risk is “the foremost and dominant consideration.” El Chico, 732 S.W.2d at 311. 

The Hous. Area Safety Council v. Mendez case reaffirms the threshold inquiry of negligence cases is to determine if a duty exists. The analysis in Mendez is also valuable as many businesses (and law firms) contract out drug-testing and other actions to third-parties that may affect employees. The opinions in this blog are solely the author’s and any replies, suggestions, or comments can be sent to john@jrjoneslaw.com.