For more information please call  800.727.2766


Demand to Count Pills Potential Invasion of Employee’s Privacy

An employee who alleged that her employer demanded to count her medication before she could work may proceed with her invasion of privacy claim as well as her other claims.
Nethia Effinger worked as a bus driver for the Birmingham-Jefferson County Transit Authority for over twenty years. After rescheduling a shift last minute for a dental appointment following her return from vacation, Effinger was asked to take a post-accident drug test by urinating into a cup under the observation of a supervisor. She was not permitted to return to work until the results were in. She had not had an accident in approximately five years. Effinger passed her drug test but was told that she had to bring her medication into work so that it could be counted. She refused to comply because she did not want the supervisor handling her medication. Effinger was thereafter fired. In pursuing the union grievance process, it was clear that the Transit Authority believed that she had a drug problem, and the termination statement described her as “mentally ill.”
In her lawsuit against the Transit Authority, Effinger alleged that her termination violated the Rehabilitation Act (based on a perceived disability) and the demand to count her pills violated her right to privacy. The federal district court reviewing the case noted that the Rehabilitation Act standard for determining liability was the same as that of the Americans with Disabilities Act. Effinger was able to proceed on her claim for a “perceived disability” would also proceed because of the tie between the Transit Authority’s statements about her perceived impairment and her termination. The district court next held that

“[a] reasonable person could find that a coerced investigation into something as private as prescribed medication, especially a physical investigation of medication meant to be ingested constitutes a highly offensive intrusion into personal affairs that would cause outrage or mental suffering.”

This finding incorporated the language used to define an invasion of privacy under the 2nd Restatement of Torts. The fact that a non-medical employee would be handling her medication combined with her having already passed a drug test bolstered her claim.