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The New York Court of Appeals’ 4-3 decision allowing subjects of drug tests to sue laboratories for “negligent testing” may hold a lesson for employers who desire to test their employees, particularly when conducting on-site testing using specimens other than urine. It illustrates risks that attend employment-related drug testing, although the issue in the case was whether a laboratory that contracted with a county probation department to analyze drug tests performed on probationers may be liable to a test subject for a negligent drug test. New York’s highest court established a new negligence cause of action against a drug testing laboratory, allowing a test subject to sue the laboratory despite the absence of any contractual relationship, but rendered no opinion on whether the laboratory was negligent. Accepting the plaintiff’s allegations as true for purposes of deciding whether a suit could be brought at all, a majority of the court said a negligence claim could be advanced where a laboratory did not exercise reasonable care in the testing of the plaintiff’s biological sample by failing to adhere to professionally accepted testing standards and consequently releasing a report finding that the plaintiff had tested positive for THC. Without addressing the merits of the complaint, the likelihood that any particular employment drug test result may be questioned can be reduced by adopting a conservative approach to testing.

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