…No MRO Leads to EEOC Lawsuit…….
Why Do You Need a Medical Review Officer (MRO) for Drug Testing?
You need a medical review officer so you will not get sued and lose the lawsuit. You need an MRO so you will not have ADA or EEOC violations leading to fines, punitive damages and more lawsuits.
DOT regulations for drug testing require a Medical Review Officer (MRO). Many states and state law programs require a Medical Review Officer (MRO) for compliance and to assist in challenges to denial of workers compensation claims and unemployment claims.
You best practice is to have an MRO for all drug tests so they are all reviewed and you have quality control and so that all results are reported consistently and remain in one database.
The EEOC filed suit in September of 2016 against an employer – M.G. Oil Company (doing business as Happy Jack’s Casino). The EEOC challenged the basis of the employer’s drug testing policy. An applicant tested positive, no medical review officer (MRO) reviewed the drug test result. The employer withdrew the offer of employment. The positive was for Opiates – Hydrocodone. The applicant actually had a legal prescription for hydrocodone for neck and back pain. The EEOC sued Happy Jack’s under the Americans with Disabilities Act (ADA) for actual and perceived disability bias.
The applicant was not given the opportunity to explain the use of the opiates or to present evidence of her prescription drug use or evidence of her underlying impairment. The EEOC also took issue with the employers drug free workplace policy that required all employees (safety-sensitive and non-safety-sensitive) to disclose all prescription and non-prescription drug use.
“Employers cannot refuse to hire someone simply because she takes prescription drugs,” said John Hendrickson, the regional attorney for EEOC’s Chicago District Office. “Ms. Mullaney would have provided Happy Jack’s with all the information that it needed to assure itself that the drugs were lawfully prescribed. There is nothing happy about Happy Jack’s ignoring the information before its eyes. To the contrary, it is very, very sad.”
Why you can’t require all employees to disclose all prescription and non-prescription drug use.
Refusing to hire a person with chronic pain because they can’t pass a drug test will get you in trouble with lawsuits, EEOC violations and ADA violations.
In another case in September 2016, the EEOC sued ApolloMD and Georgia Hospitalists Group after the defendants fired Dr. Alunda Hunt for his use of narcotic pain medication to treat chronic pain. According to the EEOC’s suit, the defendants regarded Dr. Hunt as disabled as there was no indication that the prescription medication impacted Dr. Hunt’s ability to do the job or maintain his medical license. It is also alleged that the defendants had no real dialogue with Dr. Hunt regarding the nature of his condition and/or the impact of his prescription drug use before terminating his employment. The EEOC is seeking damages and injunctive relief.
It is very risky for an employer to have a blanket policy against any use prescribed medication particularly for non-safety sensitive workers. In addition, the use of a medication may not effect an employee’s ability to safely due his or her job. In the case against ApolloMD and Georgia Hospitalists Group, Dr. Hunt provided ApolloMD with a note from his doctor indicating that he was being treated for a medical condition with narcotic pain medications. According to the doctor’s note, Dr. Hunt was compliant with his treatment and was not experiencing any negative side effects. A few days later, Dr. Hunt was removed from the work schedule and his contract was terminated. EEOC charged that Dr. Hunt was unlawfully fired because of an actual disability and because he was perceived to be disabled due to his use of legally prescribed narcotic medications.
Drug testing and prescription drug use are both serious business for employers. You need to have compliant drug free workplace policies in order to avoid liability, EEOC complaints and ASA violations. Training of your human resource (HR) team and workplace supervisors is critical. National Drug Screening can be of assistance.
Is a Medical Review Officer (MRO) required for non-DOT drug testing?
The answer is yes and no. Yes, for one important reason – reduce exposure to liability. Yes because many states require a medical review officer (MRO) in the state drug testing programs. These states include: Alabama, Alaska, Arkansas, Florida, Hawaii, Iowa, Louisiana, Maryland, Mississippi, Montana, New York, Ohio, Oregon, Tennessee, Vermont and Wyoming. In many other states the drug testing laws require DOT or SAMHSA protocol which would also then require an MRO, these states include: Alabama, Arkansas, Illinois, Louisiana, Montana, New Mexico, Tennessee, Virginia and Wyoming,
A few other good reasons for a MRO on all drug tests according to laws in many states: privacy laws, unemployment denials and workers comp denials.
An essential part of the drug testing program is the final review of results; this is performed by a Medical Review Officer (MRO). A positive laboratory test result does not automatically identify an employee or job applicant as an illegal drug user. An individual with a detailed knowledge of possible alternative medical explanations is essential in performing this final review of results. The MRO fulfills this important function. This final review is required in the Mandatory Guidelines for Federal Workplace Drug Testing Programs initially published in the Federal Register on April 11, 1988 (53 FR 11970-11989) and revised in the Federal Register on June 9, 1994 (59 FR 29908-29931). It is also required by 49 CFR Part 40 for mandatory drug testing required of DOT regulated employees. Many state laws also require that both DOT and non-DOT drug test results be reviewed by an MRO and some states also mandate that DOT or Federal Workplace Drug Testing procedures be followed on all drug tests. For non-DOT testing, just because there is no regulation that requires it; there is absolutely no reason to not use an MRO in the drug testing process – protection from liability and fairness of the process is the issue.
An MRO is defined as a licensed physician who receives laboratory results, has knowledge of substance abuse disorders, and has appropriate medical training to interpret and evaluate an individual’s positive test result together with his or her medical history and any other relevant biomedical information. Only individuals holding either a Doctor of Medicine (M.D.) or Doctor of Osteopathy (D.O.) degree may serve as MROs for federally regulated programs. It is clear that without appropriate training, one cannot determine the legitimate use of controlled substances as compared to substance abuse. The MRO is the gatekeeper, protecting the rights of the ordering agency and the donor.
The MRO must not be an employee or agent of or have any financial interest in the laboratory for which the MRO is reviewing drug test results. Additionally, the MRO must not derive any financial benefit by having an agency use a specific drug testing laboratory or have any agreement with the laboratory that may be construed as a potential conflict of interest. The purpose of this requirement is to prevent any arrangement between a laboratory and an MRO that would prevent the MRO from reporting a problem identified with a laboratory’s test results or testing procedures.
The MRO has the following responsibilities:
(1) Determine that the information on the drug testing Custody and Control Form (CCF) is forensically and scientifically supportable;
(2) Interview the donor when required;
(3) Make a determination regarding the test result;
(4) Report the verified result to the employer or agency ordering the test; and
(5) Maintain records and confidentiality of the information.
MRO assistants represent the administrative staff under the direct supervision of the MRO. The MRO, along with the MRO assistants’, review all paperwork and data associated with the drug test and provide corrective action notices to any parties that have made errors in completing the paperwork. This is an essential part of any drug testing program. Data and paperwork errors need to be found and corrected on negative results prior to the same error occurring on a positive test and negating the test due to a paperwork error. This corrective action aspect is crucially important to the overall quality control of the drug testing program. It is for this reason that all test results, both positive and negative, should be reported through the Medical Review Office. As the gatekeeper for the integrity of the testing process, the MRO should process all test results.
Any drug that is illegal or requires a prescription in the United States will require a medical explanation if discovered in a urine drug test. The MRO gives the donor an opportunity to provide a legitimate medical explanation, such as a legal prescription, for the positive test result. If the explanation and subsequent proof are appropriate, the MRO will report a negative test result to the employer. If the explanation and proof are not appropriate, the MRO will report a positive test result to the employer.
The use of the Medical Review Officer greatly enhances the validity and reliability of the overall drug testing process. This process helps ensure fairness to the donor and offers more protection to the employer/agency in any case of later litigation due to a “positive” drug test where the donor may have actually had a legitimate medical explanation. It is the job of the MRO to ensure the integrity of the drug test, and without an MRO, there is no assurance of this integrity, and no court should uphold a positive test result not reviewed by a Medical Review Officer.
Lear about the National Drug Screening – NDS MRO Advantage.