The Importance of MRO Review: Employers Can Be Sued by EEOC for Drug Testing Issue

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A lawsuit filed by the Equal Employment Opportunity Commission (EEOC) this past fall illustrates the need to have employment drug screen results reviewed by a Medical Review Officer (MRO).

The suit alleges M.G. Oil, owners of Happy Jack’s Casino in Sioux Falls, withdrew its offer of employment at the Casino when the candidate tested positive for hydrocodone use. As stated in the complaint, the candidate has a recognized disability and a valid prescription for the medication. As the casino did not offer the candidate an opportunity to provide proof of her legally prescribed medication for a medically-recognized condition and did not provide for medical review of the drug test results, the company violated the Americans with Disabilities Act (ADA).

Blanket policies barring employment when donors have verifiable, legitimate medical explanations may be challenged by the EEOC as not complying with the ADA.

“Defendant M.G. Oil Company has a written policy requiring employees to disclose prescription and non-prescription drugs without consideration of whether the inquiry is job related and consistent with business necessity, in violation of the ADA,” the EEOC complaint says.

M.G. Oil counter-sued its drug testing administrator, TestPoint Paramedical, stating that TestPoint failed to follow M.G. Oil’s policy to conduct further investigation on positive tests, which would include checking for a valid prescription. Patrick Heitkamp, TestPoint’s owner, denied the allegations and said no signed, legal contract with M.G. Oil exists.

The EEOC attempted to resolve the matter with M.G. Oil during its 2015 investigation of the job applicant’s initial EEOC complaint, but was unable to reach an agreement with the company. M.G. Oil said the terms were “onerous” and “unreasonable.”

This EEOC lawsuit demonstrates that MRO review is a vital part of any drug-free workplace policy. One of the tenets of MRO review is to offer the donor an opportunity to present a legitimate medical explanation for positive laboratory drug testing results. If this explanation can be verified, the MRO will judge the lab positive result as negative and report it to the employer as if the lab reported no evidence of drugs. This MRO action insulates the employer from needing to question a donor’s confidential medical history, thereby diminishing the employer’s exposure to ADA/EEOC complaints. If an employer hires safety-sensitive employees, the company’s appointed MRO can address safety concerns and independently help determine a candidate’s suitability for employment.  Please note, this vetting is separate from the standard MRO process.

I strongly encourage all employers with drug testing policies to use an MRO to review their test results. This recommendation is in contrast with several state drug testing statutes:  Only 20 states actually require MRO review on non-federally regulated testing. Therefore, depending on your jurisdiction, your drug testing administrator may not automatically provide this service.  Remember, compliance with EEOC/ADA regulations is the responsibility of the employer. An employer cannot shirk its responsibility to comply with regulations by stating a service agent was supposed to do it for them. The regulators will always fall back on the accountability of the employer to abide by the rules in place.

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Dr. Todd Simo

Dr. Todd Simo joined HireRight in 2009 and currently serves as the Chief Medical Officer working out of the Charlotte, North Carolina office. He has vast experience and training in Family, Occupational and Addiction medicine.

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