In September 2013, a Maryland federal court found that employers are unable to require breath alcohol testing of employees under the Maryland drug and alcohol testing law.
In Whye v. Concentra Health Services, Inc., two employees suit filed against their testing provider for fraud and invasion of privacy after their employer required them to undergo multiple breath alcohol tests. The employees claimed that use of the testing device violated Maryland’s workplace drug and alcohol testing law, because the testing provider did not preserve any of the breath that was collected from the test subject for chemical analysis for additional testing.
The Maryland court’s observations were:
- Urine, hair, blood, or saliva, are the only specimen appropriate for testing. Maryland follows the principle of “the expression of one thing is the exclusion of another,” making this list exclusive.
- Maryland’s workplace drug and alcohol testing law had been amended twice in order to add hair and saliva to the list of appropriate testing specimens. Yet, all four recent attempts to add breath to the list have failed.
- One goal of the law was to let test subjects contest positive test results by appealing for a repeat chemical analysis on the original sample. However, the device used for breath alcohol testing did not permit retesting of the test subjects’ breath.
- The testing provider requested a Declaratory Ruling from Maryland’s Department of Health and Mental Hygiene regarding the legality of breath alcohol testing. They ruled that “an employer may not require job-related breath testing for alcohol use.”
The fraud claim was dismissed without prejudice; the court found that the employees failed to support their claim that false representation was made with the intent to deceive regarding chain of custody. The employees were also unable to verify the testing was offensive or that they expected privacy in their breath. The court dismissed the invasion to privacy claim with prejudice.
All in all, the Maryland court ruled that the state’s drug and alcohol testing law does not allow employers to perform breath alcohol testing.