When an employee/applicant is drug tested, is the employer required to utilize testing lab that employs a Medical Review Officer (MRO)?
Yes. As defined in the Rules and Guidelines, "Medical Review Officer" or "MRO" means a licensed physician, employed with or contracted with a covered employer, who has knowledge of substance abuse disorders, laboratory testing procedures and chain of custody collection procedures; who verifies positive, confirmed test results; and who has the necessary medical training to interpret and evaluate an employee's positive test result in relation to the employee's medical history or any other relevant biomedical information. The MRO should be used to review all positive tests with the employee or applicant before the employer is advised of the test results. Using an MRO provides the employer with a medically qualified interpretation of a positive test result, which would be defensible in a court of law. The MRO helps to protect both the employer and the employee.
How accurate are the drug testing methods that I will be required to use?
If testing is done in accordance with the Rules and Guidelines, ( Chapter 0800-2 ), the results are highly accurate and reliable. Sometimes, you'll hear that urine drug tests can be "beaten". This was true in the past. People could add water, soap, ammonia, vinegar or even table salt to a specimen and produce a negative test result.
Today, collection site and laboratory procedures make tampering nearly impossible. At the collection site, employees must leave coats, purses and briefcases outside the cubicle where they provide the specimen. The person collecting the specimen adds a bluing agent to the toilet bowl and remains in the area directly outside the stall while the specimen is being given. Immediately afterward, the collector applies a temperature strip to the specimen to make sure that it matches body temperature. The collector also checks the specimen for unusual color and odor. Later, when the specimen arrives at the laboratory, technicians perform simple tests for gravity and acidity to detect adulterated specimens.
Another misconception is that drug testing is prone to inaccuracy with so-called "false" positives. Several years ago, some over-the-counter drugs such as ibuprofen or diet pills could cause false positives for illicit drugs. Today, tests have been refined to the point where this does not occur. A more legitimate concern is that of true "false" positives. That is, where the laboratory accurately determined the presence of a drug, but its presence is not the result of abuse or illicit use. Certain foods and medicines do contain detectable amounts of "controlled" drugs. For example, poppy seeds used in bagels and other baked goods can sometimes contain enough morphine to produce a detectable level in urine.
Over-the-counter drugs that are sold in countries outside the U.S. often contain codeine. Codeine is also found in commonly-prescribed cough and cold medicines, such as Tylenol with codeine, and can produce a positive result in drug tests. In all these cases, a Medical Review Officer ( MRO ) is able to determine if the drug is being properly and legitimately used.
While there have been some reports of errors, they can usually be traced to the fact that a confirmation test was not performed to verify an initial positive result.
Could there be legal challenges?
Yes. The United States Constitution, which restricts governmental but not private actors from arbitrarily interfering with individual rights, prohibits the Government from unreasonably infringing on workers' rights relating to privacy and job security. With respect to workplace privacy, the Fourth Amendment to the U.S. Constitution prohibits unreasonable "searches." In l989, the Supreme Court, considering the issue of workplace drug testing for the first time, concluded that a public employer taking of blood, urine, or breath specimen for the purpose of alcohol and other drug testing, (or testing conducted by a private employer at the request of the Government), constitutes a search under the Fourth Amendment because it implicates significant privacy concerns. The Court further held that the determination of whether such testing is "reasonable" and therefore constitutionally valid, requires a balancing of the degree of invasion on the individual's privacy interest against the promotion of the employer's legitimate interests.
In short, employment decisions based on a substance abuse test result can be contested. The Courts favor employee testing that is based on procedures that are clear, fair, consistent, and communicated in a written policy statement.
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