Employer Lessons on Non-DOT Drug Testing Gleaned From EEOC Lawsuit

On June 28, 2018, the EEOC filed a lawsuit against Steel Painters, LLC in the Eastern District of Texas.The lawsuit alleges that the company violated the Americans with Disabilities Act when it fired Matthew Kimball.

Be aware that in writing this, I am reporting as “fact” what are in reality the allegations of the EEOC. If you can’t trust an attorney under Fed.R.Civ.P. 11 . . .

According to the EEOC’s complaint:

14. Mr. Kimball is recovering from a drug addiction and has been enrolled in a supervised methadone treatment program since September 2013. [Prior to enrolling in the treatment program, Kimball was addicted to opioid pain medication.] He has not used illegal drugs since beginning the treatment program in September 2013. He undergoes monthly counseling and drug testing. Kimball follows all rules set by the clinic, and he has never failed one of its drug screens. His use of methadone is directly related to the treatment for his drug dependency.

The EEOC does not tell us what it means by the term “illegal drugs” nor does it tell us what standards are used – by whom – in determining what might constitute “failing” a drug screen. In employer drug testing policies that I prepare under Iowa’s private sector drug testing law, I define the terms “legal drug” and “abuse of a legal drug.” Is the EEOC attempting to be coy in using the term “illegal drugs”? Did the EEOC choose not to say that Kimball has not abused a legal drug? Did the EEOC intentionally choose not to say Kimball has not illegally used a Controlled Substance? (Or is the definition of “illegal use of drugs” in 42 USC § 12111(6) a large loophole in the law? The questions of whether Kimball is presently addicted to opioid pain medication (methadone is an addictive opioid used, in part to manage pain) is not mentioned by the EEOC. But those topics are not relevant to this post.

The EEOC asserts that Steel Painters required Kimball to, and Kimball did, take a pre-employment drug test. Before the company received the results of the drug test, Steel Painters put Kimball to work on a Monday. Kimball worked the full week. On the calendar Monday following Kimball’s start, “Beaumont Occupational Services” called Steel Painters’ Human Resources a little before lunch to report a positive drug test for Kimball. Steel Painters immediately relieved Kimball from work and removed Kimball from the job site.

Kimball immediately – the EEOC asserts from the “front gate of the plant” -- called “Heinen Medical, the lab that processed the test.” After speaking to a nurse, Kimball immediately emailed to the lab information confirming that he had a prescription for methadone, “along with a letter from Texas Treatment Services (signed by [Kimball’s] doctor) that set out the date he began treatment at the center and other relevant information.” By the end of the day that Monday,

The lab changed the test result from “positive” to “negative,” as evidenced by a report signed by Dr. Brian N. Heinen of Heinen Medical Review. By the end of the day on September 26, [Steel Painters’ HR department] had received the “final” report, which indicates that Kimball’s test result was “Negative.”

After this supposed flip-flop on the part of the lab, Steel Painters gave Kimball a specific form that the company required to be completed. That form, again according to the EEOC’s allegations, had two parts – one for the employee to complete, and one for the employee’s health care provider to complete. We are not told what information the company sought. We are told by the EEOC that Kimball completed his part of the form and took it to his clinic. We are told that Kimball was told by his clinic that the clinic does NOT complete employer forms, that it does not complete any third-party forms. Kimball was told that the center would provide a one-paragraph letter that:

Verifies that the individual “is a patient at our clinic’; “is under the care of Dr. ____’”;”‘has been a patient here since ________”; and “is prescribed Methadone only from this facility.” The letter concludes “If you have any questions please feel free to contact me at [clinic’s telephone number].”

Query: Is THAT the information that Kimball “emailed to Heinen Medical, the lab that processed the test”?

Those readers who are in HR or are in the medical profession or who practice employment or plaintiff personal injury law appreciate how forthcoming health care providers will NOT be in responding to third party telephone questions. The EEOC added to the complaint the assertion that the company’s HR Manager insisted that the company’s form be completed, and the burden was on the employee. Indeed, the HR person is reported to have said, “I’m not callin’ nobody.” No form -- Kimball’s employment was ended.

I am not licensed to practice law in Texas. I thus profess no knowledge of Texas law as it may relate to employers in the private sector engaging in drug testing. I have, however, been advising employers on both DOT and Iowa private sector drug testing laws for a number of years. I am familiar with the role a Medical Review Officer plays in making a determination on what information in a laboratory test should be reported to an employer, and in fact in making the report to the employer. An MRO is going to receive, from an approved laboratory, a report with both qualitative (what metabolites were found) and quantitative (how much was found) information. As is discussed in more detail later, if the MRO is functioning under regulations of the United States Department of Transportation, an MRO receiving laboratory report with positive, reportable amounts of tested substances will at least attempt to contact the donor to seek medical information. Iowa’s private sector drug testing law, Iowa Code Section 730.5(7)(h) requires:

h. A medical review officer shall, prior to the results being reported to an employer, review and interpret any confirmed positive test results, including both quantitative and qualitative test results, to ensure that the chain of custody is complete and sufficient on its face and that any information provided by the individual pursuant to paragraph “c”, subparagraph (2), is considered. . . .

The DOT has specific regulationsprohibiting an MRO from having any relationship with an employer’s laboratory which even creates an appearance of a conflict of interest. The USDOT provides, in a separate regulation,examples “of relationships between laboratories and MROs that the Department views as creating a conflict of interest or the appearance of such a conflict.”

There are a plethora of lessons for Iowa employers – for employers which do non-DOT drug testing – in the pattern described by the EEOC above.

1. Under section 102(d) of the Americans with Disabilities Act, there are three finite periods where medical examinations and inquiries by employers are regulated. These are the pre-employment period, then the period “after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant” when entrance exams are permitted, and finally the period after employment duties have commenced. While clearly the specimen for the drug test was collected during the entrance exam period defined in the statute, once Kimball physically started working before the company received the results of the drug screen, Kimball became an “employee.” EMPLOYERS: WAIT UNTIL YOU GET THE RESULTS OF TESTS AND ALL OTHER MEDICAL EXAMS BEFORE PERMITTING AN APPLICANT TO COMMENCE EMPLOYMENT DUTIES!

2. In Iowa, there is no regulatory agency with the power to set standards for an MRO. However, if an action is brought contending a test violated a provision of Iowa’s law, the defendant employer “has the burden of proving that the requirements of this section were met.” I believe that would include establishing that the person / entity which performed the MRO functions meets the qualifications of Iowa’s law, and acted in accordance with Iowa’s law.

1. As an employer, YOU pick the MRO. It may be beneficial to make certain that he or she meets the standards necessary to perform as an MRO under U.S. DOT drug testing regulations. Those regulations

have a detailed description of who is qualified to act as a DOT MRO.That listing includes medical licensure, specific training, passing a standardized, national test, and periodic requalification training.

• As noted above, make sure your MRO (or the entity which will provide the MRO) meets the DOT standards for complete independence from the laboratory which is performing the actual testing. Reading that Heinen Medical is the lab that processed the test, and that the lab changed the test result from “positive” to “negative,” or that one “Dr. Brian N. Heinen of Heinen Medical Review” changed the test result should send shivers down an employer’s spine.

2. Because it is, by definition, a non-DOT drug test, if – like Iowa -- there are no state standards on how the MRO is supposed to perform that function, you, the employer should provide specific, concrete guidance to your MRO.

• The DOT regulations, specifically 49 CFR § 40.131(a)require that when an MRO receives

A confirmed positive, adulterated, substituted, or invalid test result from the laboratory, you must contact the employee directly (i.e., actually talk to the employee), on a confidential basis, to determine whether the employee wants to discuss the test result. In making this contact, you must explain to the employee that, if he or she declines to discuss the result, you will verify the test as positive or as a refusal to test because of adulteration or substitution, as applicable.

REQUIRE YOUR MRO TO CONTACT THE EMPLOYEE DIRECTLY, even in Iowa where our statute requires that individuals be offered the opportunity to provide relevant medical information at the time the specimen is collected.

• Find out what the MRO is going to use in interpreting the laboratory results, “including both quantitative and qualitative test results.” 49 CFR § 40.137 has detailed instructions on what a DOT MRO is to do with positive laboratory results “involving marijuana, cocaine, amphetamines, semi-synthetic opioids, or PCP.” As an employer, you should be familiar with those standards, especially if you are going to expect you non-DOT MRO to follow them.

One to which I would call your specific attention is 49 CRF § 40.151 (e) – a regulation that lists what DOT MRO’s are prohibited from doing as part of the review and verification process:

You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted).

While the DOT is rigid in its response to marijuana metabolites, some states are “more fluid” in their responses under state “disability” laws. YOU, THE EMPLOYER SHOULD CLEARLY INSTRUCT YOUR MRO ON WHAT RESPONSE YOU EXPECT TO A POSITIVE LABORATORY TEST RESULT FOR MARIJUANA OR ITS METABOLITES.

3. I want to return to 49 CFR § 40.137 and note specifically the final provision of that regulation – 49 CFR § 40.137(e)(4):

(4) Even if you [MRO] find that there is a legitimate medical explanation under this paragraph (e) and verify a test negative, you may have a responsibility to raise fitness-for-duty considerations with the employer (see § 40.327) [Boldface emphasis added].

I found no recognition in the EEOC’s complaint that a person with a prescription for an opioid – any opioid, even one that is subject to abuse – may in fact nevertheless have fitness-for-duty issues. AS AN EMPLOYER, YOU SHOULD INSTRUCT YOUR MRO THAT HE OR SHE DOES HAVE THAT RESPONSIBILITY TO AT LEAST RAISE FITNESS-FOR-DUTY CONSIDERATIONS WITHYOU, AND TO SPECIFY WHAT THOSE CONSIDERATIONS MAY BE.

4. As an employer doing non-DOT drug testing, you should have a Designated Employer Representative, or DER. Under federal regulations,a DER is an “employee authorized by the employer to . . . receive test results and other communications for the employer. . . Service agents cannot act as DERs.” As an employer doing non-DOT testing, your selected MRO should be communicating directly with an employee of your organization that you have designated. The MRO should know who your DER is; the communications should not go through a service agent.

If you are a private sector employer doing, or even considering doing, non-DOT drug testing, make certain that you are working with an attorney who is familiar with not only the drug testing laws of your particular jurisdiction (and I recognize that in some jurisdictions, there may not be any laws) but also familiar with the laws and regulations covering DOT drug testing as well as with local, state and federal laws regarding disability discrimination. You also want a lawyer who understands that nobody should be authorized to change the laboratory results – they are what they are.

An attorney working for the EEOC should also recognize that employers that employ a person with a present prescription for an opioid medication can, consistent with the mandate that medical inquiries of employees be “job-related and consistent with business necessity,” seek medical information regarding “fitness for duty.” 42 USC § 12113(b). Similarly, information like “what the precise prescription – what, how much and how often” would appear to me to be mandatory for the analysis called for by 49 CFR §§ 40.137(e)(3):

(e) In determining whether a legitimate medical explanation exists, you . . . must exercise your professional judgment consistently with the following principles:

(3) Use of the substance can form the basis of a legitimate medical explanation only if it is used consistently with its proper and intended medical purpose.

A prescription for “one pill every four hours” does not authorize two pills over the same four hours if the patient thinks it will more greatly reduce the pain.

And I like to hope that the decades-old law that if the employee, for whatever reason (e.g., “my doctor refuses to fill out forms”), fails to provide the relevant information lawfully requested by an employer, the employer is not going to be blamed for the breakdown of the process.