Court case raises questions on drug testing protocol, obligations
Clinic turned over raw test results, said it had no duty to explain
A recent California court case raises some intriguing questions about how occupational health clinics handle drug tests of prospective employees, especially when the client wants only the raw test results instead of the services of a medical review officer (MRO). Some legal experts suggest there is no problem with handing over the raw test results even if you know they might be misleading, but occupational health leaders say that is not the proper way to practice.
The case could be seen as an indication that occupational health providers have little legal obligation to explain the test results to their clients, at least in California. State laws regarding drug testing will vary, but the case nevertheless illustrates some dilemmas that will crop up in all areas. The dilemmas in the case arose from one of the most common, routine services provided by occupational health clinics - a pre-employment drug screen. The clinic turned over essentially raw test results, with no MRO function, and the positive results apparently caused the company not to hire the test subject.
That is, unfortunately, a common practice among occupational health providers and other clinics providing testing services, says Melissa D. Tonn, MD, MBA, MPH, medical director of occupational health services at Memorial/Sisters of Charity Health Network in Houston and Presbyterian Healthcare System in Dallas. She calls it a terrible disservice to the testing subject and the employer.
"Employers are not well-versed enough to know what to do with a positive drug screen," she says. "For some providers, it's not unusual to hand over test results like that without a review, but it's a very bad idea. A lot of clinics do this kind of stuff to increase their revenue, and they don't have any idea what kind of impact it's going to have from an occupational health standpoint, or legally, or how it's going to affect someone's life."
Subject lists prescription meds before test
A clinic in Orange County, CA, Family Care Medical Walk-In, had contracted with a local auto dealership to provide pre-employment drug screens.1
When 51-year-old Greg Roscoe applied for a job in early 1996 at the dealership, he was sent to Family Care for the same drug screen required for all applicants. Roscoe provided a urine sample, and as part of the drug screen protocol, he provided a list of the 13 prescription medications that he was taking.
After the sample was submitted for testing, Roscoe or someone claiming to be Roscoe returned to the clinic and asked for the test results. The clinic staff refused to hand over the test results because its policy for pre-employment drug screens was to provide the results only to the employer. There also was some question as to whether the person asking for the results actually was Roscoe.
The person asking for the test results became belligerent when the staff refused to provide the test results and caused a disturbance in the clinic. The incident was reported to the employer.
When the test results came back, they were positive for several classifications of drugs. At least some of those positive results may have been explained by the legitimate use of prescription drugs, which Roscoe had noted during the testing process.
But the raw test results were handed over to the employer, apparently with no explanation that the positive results may not indicate illegal drug use.
The auto dealership did not hire Roscoe for the position, and he then sued the clinic for mishandling the drug testing operation. He claimed he would have been hired by the employer if the clinic had not incorrectly (as he claimed) reported he caused a disturbance in the clinic and if the clinic had explained that the positive test results might be explained by prescription drugs.
The case went to a jury trial, and the verdict suggests the clinic did not act inappropriately, says Dale Quinlan, JD, an attorney in San Juan Capistrano, CA, who represented the clinic. The jury ordered a $3,750 payment on the claim that the clinic had incorrectly reported the man causing a disturbance, possibly resulting in the denial of employment. But the jury determined Roscoe was 25% at fault for that claim, the prospective employer was 40% at fault, and the clinic was 35% at fault.
Did everyone drop the ball?
"This is only theorizing, but it seems the jury saw a connection between the disturbance report and him not getting hired," Quinlan says.
"But the distribution of liability implies that everyone should have followed up in some way. Perhaps the clinic should have confirmed that it was him and the employer should have confirmed that before using it against him. And the jury seemed to imply that the plaintiff should have taken some action to prove it wasn't him," he adds.
After the trial, the parties all decided that the distribution of liability made it unnecessary to pay out any damages, so no money exchanged hands. And on the claim regarding the prescription drugs affecting the test results, the jury found no liability whatsoever. Quinlan says that is significant, but somewhat difficult to understand.
The verdict does not clearly answer the question of how the clinic is obligated to report drug test results.
"In the early levels of testing, you can determine whether an amphetamine-based compound is present, for instance, but you can't tell whether it's speed or a cold medicine," Quinlan says. "So is it the health care provider's obligation to explain that, or is the employer's responsibility to understand this when they undertake a drug testing program? The law is not clear on that point, and the jury in this case did not think it was the clinic's obligation."
Part of the problem involved the fact that there was no MRO involved with the auto dealership's drug testing program. Quinlan says it is unclear whether the clinic offered MRO services as part of the drug testing program and the employer refused, but he says the jury verdict suggests it may not have mattered.
"No MRO was hired by the company to review the results, so the clinic just passed on the raw results of the drug screen with no interpretation because that is what the employer contracted for," he says. "The jury found no fault with that. The undisputed testimony was that the clinic did not undertake the obligation to have any form of medical review or to interpret the results."
Employer's responsibility to understand test
The jury's verdict suggests it is up to the employer to seek proper interpretation of the test results, whether that comes in the form of additional service from the clinic or as a separate service obtained elsewhere, Quinlan says. It is not up to the drug screening clinic to force that service on an employer. Rather, the clinic must adequately provide the service that was contracted, which in this case meant specimen collection, chain of custody, and reporting the results.
Though Quinlan represented the clinic in the dispute, he tells Occupational Health Management he sees the question of MRO services as a difficult dilemma.
Except in some circumstances in which MRO services are required to comply with state or federal testing requirements, clinics and employers are left to determine whether the MRO services are worthwhile. In too many cases, he says, the employer will determine it is not worth the expense. And though his client prevailed on the issue in this case, he says that may not be the result in front of another jury.
"Both parties, the clinic and the employer, have typically looked the other way," he says. "Everyone is just holding their breath and nobody wants to make the decision. Employers usually don't want to pay extra for MRO review for each employee screened, and the clinic doesn't want to turn down the testing services just because they won't contract for MRO services."
Juries might view as clinics' responsibility
While that attitude may be accepted by some juries, Quinlan says he would expect some juries to take just the opposite approach and say the clinic had an obligation to explain to the employer that the initial positive results on a drug screen may not indicate illegal drug use. In a situation in which the law is not so clearly on your side, a sympathetic jury could determine that it was irresponsible to turn over raw test results when you knew that the non-clinician employer might misinterpret them.
The plaintiff's attorney, George Baugh, JD, of Fullerton, CA, says the jury was sympathetic but did not provide a large award because the plaintiff had obtained a job soon after the incident. He says occupational health providers are risking large jury awards or settlements if they hand over raw test results without interpretation.
"It's definitely a risky practice," Baugh says. "I'd sue them again if they did it again. I'd feel very comfortable going after them again for the same practice. They have a lot of money at risk in these situations because the damage can be irreversible if you're dealing with someone's career."
Baugh says the risk of a large award is very high because a jury can easily understand the harm done to the job applicant. "This is not a complex situation for a jury. They hear [administrators from] the clinic saying,'Does he have drugs in his system? Yes. What's the explanation? Well, it's a controlled substance and that's all we're going to say, even though we have in front of us a list of the medications he's taking.' The clear implication is that he's a drug user, and the clinic doesn't care whether that's true or not."
Some clinics always provide MRO function
At the facilities Tonn manages, all drug screens undergo MRO review, regardless of whether they are subject to the Department of Transportation testing protocol that requires such review. She says she considers the review the only way to ensure that her program provides a valid testing service, rather than just collecting specimens with little regard to whether the employer is getting useful information.
For typical drug screens, Tonn's program does not charge an additional fee for the MRO service. (It does charge for MRO services contracted separately.) Instead, the cost of the MRO service is spread over the entire drug screening program so the cost of each screen is increased by perhaps one or two dollars.
Other programs may choose to charge separately for the MRO service added to each drug screen, but Tonn suggests it is better to bury the fee in the overall testing program. That way, she says, you provide the necessary MRO service without having to discuss an additional fee, which is just an incentive to say no.
"By making sure that we provide the MRO, we're protecting ourselves as well as the client," she says.
Written warning may reduce liability
On the other hand, MRO services are not the only way an occupational health provider can provide test results and make sure the employer does not naively make negative conclusions about the employee or prospective employee. Quinlan suggests all drug screen reports should include a statement explaining that the results must be interpreted carefully, especially in light of any reports from the subject about prescription medications.
Quinlan suggests using a statement similar to this:
We have conducted this test, which is effective for detecting the presence of X. The testing subject has represented that he or she is taking or has taken these medications: (list of prescription or over-the-counter medications).
We cannot determine with absolute certainty whether these test results are caused by the reported medications or some other compounds. Further review by a qualified medical professional may be necessary for an accurate interpretation.
The employer must make the determination of whether these test results should influence any decision regarding the hiring or continued employment of the person tested.
A statement of that sort is especially important if you have offered MRO services, but the client turned down the offer because the employer claims MRO services will be obtained elsewhere or just doesn't feel they are necessary. In that case, it may be wise to add a statement explaining that the services were offered but refused.
"Don't leave it so that it appears you just made your money on the specimen collection and didn't care whether the employer understood the results," he says. "If employers want to say this is a bad test result, and so the person doesn't get a job - without interpretation - that needs to be their responsibility and not the clinician's."
Tonn also endorses the idea of documenting the fact that you have urged the employer to use an MRO service, but she disagrees with the suggestion to specify which medications the test subject is taking.
She says her program long ago stopped asking for a list of prescription or over-the-counter medications at the time of testing. The information is not useful at that point, and the MRO function will address any legitimate explanations for a positive test result.
"It's also not a good idea to hand over a list of prescription medications because then the employer will know the person has diabetes and AIDS," Tonn explains. "Then if the person is not hired, there could be a serious problem with the denial of employment."
Reference
1. Roscoe v. Family Care Medical Walk-In, et al, No. 76-44-11 Orange County (CA) Superior Court.
· George Baugh, JD, 2201 East Chapman Ave., Fullerton, CA 92831. Telephone: (714) 870-5253.
· Dale Quinlan, JD, 30290 Rancho Viejo Road, Suite 119, San Juan Capistrano, CA 92675. Telephone: (714) 759-7760.
· Melissa Tonn, MD, Memorial/Sisters of Charity Health Network, Houston. Telephone: (713) 681-8877.
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