Texas Says Employee Can Sue Testing Lab for Botching Random Drug Test Required by Employer

  Case: A pipefitter who got fired after flunking a random drug test sued the testing lab and provider that collected the hair follicle sample for negligence. The defendants claimed that they owed a duty of care to the welding company who employed him but not to the pipefitter himself. The trial court agreed and tossed the claim without a trial. But the state appeals court reversed, finding that the pipefitter did have a valid negligence claim.   Significance: This is the first case in which a Texas court has been asked to decide whether labs and other third parties owe a duty of reasonable care in collection and analysis of drug tests performed on an employee at the requirement of his employer. The court in this case answered the question, citing Texas Supreme Court language acknowledging that “there is a serious risk that an employee can be harmed by a false positive drug test” and the fact that there’s no statute or regulation protecting employees who are subject to random drug tests [Mendez v. Houston Harris Area Safety Council, Inc., 2021 Tex. App. LEXIS 3243, 2021 WL 1679544].