The on-going opioid crisis is causing employers to react in ways that could result in wrongful termination claims and actions brought under the Americans with Disabilities Act of 1990 (ADA) or state disability discrimination laws. How can employers protect themselves from such claims and maintain the safety of their workplaces? The Medical Review Officer (MRO) is a big part of the solution.
Employers have reacted to the opioid epidemic by adding substances to their company drug testing panels. These additional substances commonly include synthetic and semi-synthetic opioids. This reaction is in line with “federal guidelines” as, beginning January 1, 2018, the Federal Department of Transportation (DOT) added four such substances to the mandatory testing panel for regulated employees.
The DOT indicated that one reason for this move was the continuing opioid crisis in the U.S. With more than 130 Americans dying every day from an opioid drug overdose this response by the DOT and non-regulated employers is entirely understandable. But many of the opioids leading to these deaths are prescribed for legitimate medical conditions – not necessarily the result of illegal use. Well over 100 million adults in the United States suffer from chronic pain. Federal and state disability laws protect job applicants and current employees from discrimination. The use of legally prescribed medications to treat chronic pain and other medical conditions may cause a workplace drug test result to be “positive” in the laboratory. These laboratory results are not “false positives.” They are true positives.
The laboratory determines what is in the sample provided by a donor – the role of the MRO is to decide then if the substance is in the sample for a legitimate (legal) reason.
Employers can take action if illegal drugs are found in a donor’s sample, which would include the abuse of legally prescribed medications. The ADA protects employees by limiting an employer’s ability to make “disability-related inquiries or require medical examinations” or tests. The ADA explicitly states that a test to determine the illegal use of drugs is not be considered a medical examination. But, including legally prescribed substances along with illegal drugs in a workplace drug test could result in claims by the Equal Employment Opportunity Commission (EEOC) and by employees.
In an EEOC Enforcement Guidance document, the question was posed: May an employer ask applicants about their lawful drug use? The EEOC said “no” unless the employer can show that the question is “job-related and consistent with business necessity.” Showing a genuine safety concern may be sufficient to establish job-relatedness, and that testing is consistent with business necessity.
If a job applicant or employee presents a positive laboratory result, the MRO can ask for an explanation including what medications are being used or were recently used that might explain the result.
Additionally, the use of an MRO in workplace screening programs may be required by law. Federal DOT regulations require that all laboratory results be sent to the MRO. Ten states require private employers to use an MRO in compliance with the state’s mandatory drug testing law (Hawaii, Iowa, Louisiana, Maine, Maryland, Minnesota, Montana, New York, Oklahoma & Vermont). Twelve additional states require the use of an MRO if the employer is following rules of a voluntary Drug-Free Workplace Program (Alabama, Alaska, Arizona, Arkansas, Idaho, Florida, Mississippi, Ohio, Tennessee, Utah, West Virginia & Wyoming).
Regardless if required by law or not, employers who think they are saving a few dollars by not having an MRO are selling themselves short and exposing themselves to massive potential liability. The MRO may very well be the employer’s best protection from mistakes leading to costly lawsuits.
Chief Operating Officer
William J. Judge, JD. LLM
Drug Screening Compliance Institute
 42 U.S.C. §12101 et seq.
 See EEOC Enforcement Guidance No. 915.002 (2000), http://www.eeoc.gov/policy/docs/guidance-inquiries.html.
 42 U.S.C. §12114(d)(1).
 See EEOC v. Dura Automotive Systems, Inc. No. 1:09-cv-00059 (M.D. Tenn. 2012), settled for $750,000. See also EEOC v. M.G. Oil Company d/b/a Happy Jack’s, 4:16-cv-04131-KES (D. S.D.), where the employer entered into a Consent Decree agreeing to pay $45,000 after withdrawing an offer of employment to an applicant for a cashier position based on a drug test showing the lawful presence of a prescribed medication.
 EEOC Notice No. 915.002 (1995).
 49 C.F.R. part 40.97(b).