Last updated: June 29, 2020
Avoid Exposure to Liability … Employers reviewing employee lists of prescription drugs or asking for quantitative levels are dangerous practices and can lead to lawsuits.
“August 29, 2011, A federal jury for the Middle District of Tennessee awarded employees who were fired for using prescription medications more than $800,000. The award included punitive damages. The award was upheld by the Court (Bates et al. v. Dura Automotive Services, Inc. Case No. 1:08-0029 M.D. TN).
Here, not only did non-medically trained supervisors make decisions regarding the impact of prescription use on the employees’ ability to perform assigned tasks, but they did so in the face of their own reviewing doctor calling the results negative and letters from some plaintiffs’ doctors saying they were perfectly safe. Their inflexibility of the drug test policy was, as the Court said, “sufficiently structurally devoid of consideration for the plaintiffs’ rights under the ADA that punitive damages are appropriate.” This was itself malicious.”
Compliance experts at USA Mobile Testing recognize a new threat these days: the widespread abuse of prescription drugs on the job. Opioids like Vicodin and Oxycontin are growing in popularity, as are anti-anxiety drugs like Xanax and Valium, making it too easy for them to be abused. As dependencies grow, working people are often unaware or unable to admit that they have a problem, since prescription drugs are often considered “acceptable” by virtue of the fact that they’ve been prescribed, and are legal.
Standard 5 and 10 panel drug tests are not testing for many of the pain medications that are currently being abused in the workplace. USA Mobile Drug Testing offers expanded opiate testing that includes Hydrocodone, Oxycodone, Oxycontin, Lortab, Vicodin, etc. In any drug testing program, the use of a Medical Review Officer (MRO) is critical to the success of a defensible drug test result and avoidance of exposure to liability.
After receiving a positive result at the lab, it is the job of the MRO to determine what the final outcome is and what is to be reported to the employer – positive or negative. The employer should never attempt to act as the MRO and review an employee’s list of prescriptions or attempt to make any decision based on the quantitative results from the laboratory. Either of these situations will present the employer with huge exposure to liability, possible lawsuit, trial and payment of damages. See the case above regarding Dura Automotive Services, Inc and the $800,000 award.
Employers should never ask employees for a list of their medications, this can lead to an ADA violation. Is the employer trained and qualified to determine the affects of legally prescribed drugs? For safety issues employers can ask employees’ for notification when they are prescribed a drug which may affect the employee’s to safely perform their job. This is a company policy and fit for duty situation.
Employers should never review the quantitative levels from a positive drug test. Is the employer trained and qualified to make any decisions from the quantitative levels?
Many factors influence the level of a drug in a donor’s system. Metabolism, physical condition, fluid balance, frequency of drug ingestion and the last time the drug was consumed are all contributing factors to quantitative levels. The ‘number’ you may see does not provide valid information outside the entire review process conducted by a licensed Medical Review Officer.
USA Mobile Drug Testing compliance consultants have the best interest of their clients in mind. There is nothing effective that the employer can do with the quantitative levels on a positive drug test, in fact under DOT regulations it is prohibited to provide this information to the employer.
Why does USA Mobile Drug Testing discourage quantitative level reporting and what does that have to do with Non DOT drug screening?
- To prevent the employer from having exposure to liability
- The ‘numbers’ associated with quant levels require interpretation and context. This process should be handled by a medical doctor.
- There can be liability issues with the pre‐judgment that may occur if a quant level is available.
- The DOT is the single standard for drug screening. A regulation within this standard is always a consideration for non DOT drug screening. A non DOT quant level has the same repercussions a DOT quant level has – misinterpretation and liability.
While it may seem that providing quant levels for a drug screen is a good idea, the opposite is true. Providing unambiguous and comprehensible information is helpful to our clients; providing confusing or potentially misinterpreted information is not so helpful. As a DER or C/TPA, we must consider the ramifications of the information we provide: for ourselves, a client, and for a donor (or an employee). Quantitative levels are just a part of the medical professional’s resources for interpreting a drug screening result. In a medical, treatment, EAP or SAP context, these levels assist with the overall interpretation of a positive drug screen. Outside of that context, quantitative levels provoke far more misinterpretation than they provide any meaningful information.
To avoid liability employers should have comprehensive drug free workplace policies and USA Mobile Drug Testing compliance experts can help with this. Drug testing should be performed with guidelines set forth by the Federal and appropriate State laws. Reviewing employee lists of prescription drugs or asking for quantitative levels is a dangerous practice and can lead to lawsuits. Employers are strongly urged to consult with and follow the advice of their USA Mobile Drug Testing compliance expert in all aspects of their Drug Free Workplace Program.