Defining the Players in a Drug Testing Lawsuit

An unfortunate reality about workplace drug testing is that it can sometimes lead to lawsuits brought by specimen donors who have failed tests and see a possible opening to bring a lawsuit against a former employer.

Workplace drug testing has many distinct roles to it so that the process is not unduly influenced by a single person and to provide the necessary checks and balances in the process.

Here is a brief overview of the players and their responsibilities in the drug testing process. It is important for all sides in a court case to understand who plays what part in the process.

Employers

Employers are liable for the conduct of their drug testing service agents, regardless of whether the agents work for a drug testing service provider or for the employers themselves. Employers who do choose to perform their own specimen collections can face additional risks during a lawsuit. For non-Department of Transportation regulated testing, legal issues can often arise for employers when they choose not to use a Medical Review Officer (MRO) to validate positive test results.

Third Party Administrators

If an employer opts to have its drug testing program run by a third party administrator (TPA), the TPA, rather than the employer, will usually be the entity that has contracts with laboratories and collection sites. Legal issues with TPAs will often involve questions of contract duties or indemnity issues.

TPAs are often named in a court case for no other reason than because they are identified in the testing documents. But, they may also be directly targeted by a plaintiff for their own conduct, especially if the TPA provides Medical Review Officer (MRO) services.

Cross-claims that name multiple defendants tend to better serve the donor’s cause more than if only one defendant is named, which is why multiple defendants are usually named.

Medical Review Officers

MROs will usually be able to rely upon their professional medical judgment in defending decisions to verify positive test results. It is important that they investigate all claims of legitimate medical explanations for positive test results thoroughly. If an MRO rejects a legitimate medical explanation for a positive test result, the burden of proof will be on the MRO for rejecting it.

As part of their professional duties, MROs may be required to offer their opinions on conflicts between donors and collection site personnel. In such cases, all documentation should be thoroughly reviewed. .

Collectors

The majority of Employers or TPAs use clinics to collect urine or hair specimens. Collections performed directly by an employer are permitted, but many testing programs require collector training (like those that follow DOT regulations, for example). If an employer representative acts as the collector, the employer creates additional risk to itself.

Having properly trained collection site personnel is also imperative for making sure there is a correctly prepared external chain of custody. Failure to properly document specimen collection will allow donors the chance to fabricate problems with collection.

Any alleged inaccuracy of test results caused by irregularities at the collection site can be addressed only by the collection site. To avoid problems, collectors should be DOT-trained.

Laboratories

Laboratories where the sample is sent for analysis will typically have no contact and no direct relation with either the donor or the employer (especially if the drug testing program is run by a TPA). However, laboratories will still have accusations levied at them, including testing errors and failure to consider medical history information of the donor before reporting test results. Labs also face claims that they should have rejected a specimen for testing because of irregularities in the specimen. 

Consortia

When businesses band together to cut down on drug testing costs, legal claims brought against these consortia are usually similar to those brought against TPAs, particularly claims of improper use or disclosure of testing information.

Rules and Responsibilities

When a claim arises, each participant should immediately begin to define its role in the testing process so there is no lingering question once the case gets to court. Also, each participant must recognize its own obligations under its services contract and the obligations its own sub-contractor(s) may have to the employer. And those obligations may vary under the different laws that may apply to testing (individual state laws, for example), so each defense to a claim should be considered in light of these differences.

Having the roles and responsibilities clearly defined not only during the court proceedings but right from the start, will help to ensure a sound legal defense against claims.