Maryland Establishes Law Against Breath Alcohol Testing- 01 Mar

Following a court ruling,  Maryland does not allow breath alcohol testing for NON-DOT purposes.

Whye v. Concentra Health Services, Inc. started in 2013 when two employees filed suit 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 this test violated Maryland’s workplace drug and alcohol testing law because the breath specimen collected was not preserved for potential re-testing at a later time. The testing provider filed a motion to dismiss the employees’ claims.

The court first decided to evaluate whether Maryland testing law even permitted breath alcohol testing.

• They first observed that the law defined specimen appropriate for testing as blood, urine, hair, or saliva, meaning that breath had been excluded from the list.
• Second, they found that the law had been amended twice in the past to add hair and saliva, while four recent attempts to add breath as a specimen had failed.
• Third, they noted that the goal of the law was to allow test subjects to challenge positive test results by requesting another analysis of the same specimen. Something that was not possible with the breath alcohol tests the employees had been submitted to.
• And finally, the testing provider requested a Declaratory Ruling from the Maryland Department of Health and Mental Hygiene, who administered the testing law, on the legality of breath alcohol testing. The Declaratory Ruling came back stating that “an employer may not require job-related breath testing for alcohol use”.

However, the privacy and fraud claims ended up being dismissed by the court. The court ruled that the employees had failed to establish that they had a reasonable expectation of privacy in their breath or that the testing procedure was highly offensive to a reasonable person.

The fraud claims were dismissed because the employees failed to allege a deliberately false representation made with the intent to deceive from the testing provider. The employees were granted 14 days to amend their fraud claim.

Ultimately, the court ruled that the Maryland drug and alcohol testing law does not allow private employers to require breath alcohol testing of employees. Minnesota is the only other state that also currently prohibits breath alcohol testing.