Written by Christopher A. Parrella, J.D., CHC, CPC, CPCO
Earlier this year, Sioux Falls, S.D.-based M.G. Oil Company, dba Happy Jack’s Casino, agreed to pay $45,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The case stemmed from the company’s decision to withdraw an offer of employment for a cashier position based on a drug test that showed the presence of a prescription pain killer.
M.G. Oil had a contract with TestPoint, a medical testing services company, to analyze tests of prospective employees. Testpoint was required to send all non-negative drug tests to a medical review officer (MRO) to determine whether the result was caused by the lawful use of a prescription drug. According to the lawsuit, TestPoint advised that the candidate’s test came back non-negative and M.G. Oil subsequently withdrew its conditional offer of employment. There was no indication, however, that the test had not been sent to the MRO to verify the result.
Even though the job candidate explained she had a disability that required the use of a prescription pain killer, M.G. Oil would not reconsider its decision. She filed a complaint with the EEOC, which in turn filed a lawsuit on her behalf.
M.G. Oil counter-sued TestPoint stating that the company failed to follow M.G. Oil’s policy to conduct further investigation on positive tests, which would include checking for a valid prescription. However, that case was dismissed by a federal judge who held that the employer was not entitled to seek indemnification or contribution from the laboratory for damages based on a false positive drug test result.
The decision highlights the importance of making an MRO review an integral part of a drug-free workplace policy. It also shows how important it is for employers to understand and have in writing the policies and procedures being used by third-party testing services.
A medical review officer’s job is to provide companies with an independent analysis of positive results to ensure that any actions taken are fair and confidential. The MRO is a licensed physician who is trained and certified. He or she cannot be an employee or agent of, or have any financial interest in, the laboratory for which the MRO is reviewing drug test results.
If a test comes back positive, the MRO must determine whether the person being tested has a legal prescription. To do that, they speak with the person who took the test and obtain proof of a valid prescription. If there is a valid reason for the positive result, then it will be reported as being negative. If there is no valid reason, then they will report it as a positive.
Although the use of an MRO is not required by all states, using one helps to reduce a company’s exposure, along with the risk of having an employee, or employee candidate file legal action, such as the one that was filed against M.G. Oil.
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