Hunton Employment & Labor Perspectives

The Texas Supreme Court has issued an opinion holding that “third-party testing entities hired by an employer do not owe a common-law negligence duty to their clients’ employees.”  Houston Area Safety Council, Inc, v. Mendez, 671 S.W.3d 580, 590 (Tex. 2023) (“Mendez”).  In a positive development for employers that drug test their employees, the Mendez opinion also supports prior Texas Supreme Court precedent that employers who conduct in-house drug testing do not owe a duty to employees.  Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. 2003) (“Solomon”).  In other words, it logically follows that if an employer does not owe a duty to employees for results of drug tests administered in-house, a third-party tester hired by that employer does not owe a legal duty to employees for drug tests. 

Mendez, a pipefitter, was assigned by his employer to work at a refinery.  Pursuant to that refinery’s policy for all on-site workers, Mendez’s employer instructed him to report to the Houston Area Safety Council (“HASC”) to provide hair and urine samples for drug and alcohol screenings.  HASC collected the samples from Mendez and delivered them to the laboratory for laboratory analysis.  The laboratory reported that Mendez’s hair sample tested positive for cocaine.

The refinery required Mendez to provide a second sample to a different collection entity which also sent the sample to the laboratory for testing.  The second sample tested negative for cocaine, as did a third independent collection that Mendez independently had tested by a different laboratory at his own expense.

Mendez sued, and ultimately settled with, his employer.  He then sued HASC and the laboratory, alleging that they negligently collected, transported, tested, and reported the results of his first hair sample, causing him to lose his job.  HASC and the laboratory filed traditional and no-evidence summary judgment motions, asserting that they did not owe Mendez a legal duty of care and that there was no evidence of breach, causation, or damages.  The trial court granted the traditional summary judgment motions on grounds that HASC and the laboratory did not owe Mendez a legal duty.

Mendez appealed, and the Texas Supreme Court agreed with the trial court and held that neither HASC nor the laboratory owed Mendez a duty: 

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.

Mendez, 671 S.W.3d at 590. 

Before determining there was no duty, the Court balanced the risk to employees against the burden such a duty would place on the employment-at-will doctrine.  Noting that it had previously determined in Solomon that employers who conduct in-house drug testing do not owe a duty to employees, the Court stated, “it would make little sense that an employer—who has a direct relationship with the employee—has no duty to its employee, but a third-party entity—which has no relationship with the employee—does.”  Mendez, 671 S.W.3d at 588, n.52.

The Mendez opinion, at the very least, provides employers with further assurances that employee drug-testing—whether conducted in-house or through a third-party provider—may still be used as a valuable tool in screening employees for safety reasons without much concern for common-law negligence liability.