An issue recently decided by the Supreme Court of Texas was whether a third-party entity hired by an employer to collect and test an employee’s biological samples for drugs owes the employee a common-law duty to perform its services with reasonable care.
The Supreme Court of Texas held in its opinion dated June 23, 2023: “Considering the competing factors above—the risk to employees, public safety, existing protections and regulations, the possible burdens on third-party testing administrators, the employment-at-will doctrine—as well as our well-established tort principles, we hold that the third-party testing entities hired by an employer do not owe a common-law negligence duty to their clients’ employees. Whether such a duty is desirable is a separate policy question for the Legislature, which can balance competing factors apart from the common law.”
The Underlying Facts
Guillermo Mendez, a pipefitter employed by Turnaround Welding Services, was assigned to work the Valero Ardmore Refinery. Following Valero policy for all on-site workers, Turnaround directed Mendez to report to the Houston Area Safety Council to provide hair and urine samples for drug and alcohol screenings. The Safety Council collected the samples from Mendez and delivered them to Psychemedics for laboratory testing. Psychemedics reported that Mendez’s hair sample tested positive for cocaine and a cocaine metabolite. Mendez had taken numerous drug tests over the more than 25 years he worked as a pipefitter and had never had a positive result. Mendez denied that he had ever used cocaine.
Valero required Mendez to provide a second sample to a different collection entity, DISA Global Solutions, which also sent the sample to Psychemedics for testing. The second sample tested negative for cocaine, as did a third that Mendez had tested by a different laboratory at his own expense. Mendez was required to complete a substance-abuse course, and when he did, DISA approved him to return to work. Nevertheless, Turnaround refused to reassign him to the Valero facility or to any other jobsite. After collecting unemployment benefits for a time, he found work with a different employer.
Mendez sued Turnaround in federal court and settled those claims. He then filed a lawsuit against the Safety Council and Psychemedics, alleging that they negligently collected, transported, tested, and reported the results of his first hair sample, causing him to lose his job with Turnaround. The Safety Council and Psychemedics filed traditional and no-evidence summary-judgment motions, asserting that they did not owe Mendez a legal duty of care and that there is no evidence of breach, causation, or damages.
Source Houston Area Safety Council, Inc. and Psychemedics Corporation v. Mendez, No. 21-0496.
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