• The MRO must follow specific DOT procedures when discussing non-negative test results with a driver.

When the Medical Review Officer (MRO) has to speak with the driver about a non-negative drug test result, the MRO has specific protocols to follow before being allowed to make a determination with or without speaking with the driver.

Steps to make contact with the driver

Interestingly, the driver is given six opportunities to speak with the MRO as the verification process plays out.

Step 1.

The MRO calls the driver using the phone numbers on the DOT testing form, making three attempts in a 24-hour period.

• If unable to make contact, the MRO documents the attempts and goes to Step 2.
• If able to make contact, the MRO speaks with the driver about a possible medical explanation for a positive, adulterated, substituted, or invalid result.

Step 2.

The MRO tells the company’s designated employer representative (DER) to contact the driver with instructions to immediately contact the MRO.

Step 3.

DER calls the driver using the phone numbers on the DOT testing form making three attempts in a 24-hour period.

• If unsuccessful, the DER must leave a message for the driver and may place the driver in a medically unqualified status or on medical leave.
• If successful, the DER must notify the MRO of the date and time contact was made and inform the driver that the driver has no longer than 72 hours to respond or face a positive or refusal to test.

What happens during the driver interview?

The MRO must explain certain things to the driver during the conversation, including the test results and the verification process. The driver must be told that any additional medical evaluation that is requested must be pursued — or it is considered a refusal to test.

For a claim of a legally obtained prescription, the MRO will take all reasonable and necessary steps to verify the authenticity of all medical records the employee provides and even contact the employee’s personal physician or pharmacist. The driver is also told that information will be provided to third parties without the need for consent in accordance with 40.327. If the MRO calls the driver’s fitness for duty into question, the driver will be given the opportunity to change any legally prescribed medication within five days. In other words, the MRO will not contact the third parties right away.

Also, during the MRO’s conversation with the driver, the MRO must communicate the split specimen option and procedures. The employee has 72 hours from the time the MRO provides this notification to request a test of the split specimen. The employee is given instructions on how to contact the MRO to make the request, including phone numbers or other information that will allow the employee to make this request. The MRO must have the ability to receive the employee’s calls at all times during the 72-hour period, which can include an answering machine or voicemail with a time stamp feature.

The MRO must also tell the employee that the employer cannot deny a request made within the 72 hours. In addition, the driver must be told that the employer cannot require payment for the test before the test takes place, but the employer can seek reimbursement later.

However, the employer who receives a verified positive drug test result must immediately remove the employee involved from performing safety-sensitive functions. The employer must take this action upon receiving the initial report of the verified positive test result. They can’t wait to receive the written report or the result of a split specimen test.

The MRO will also inform the employee that additional tests on the specimen are prohibited. For example, a driver who claims the specimen belongs to someone else cannot request DNA tests.

What happens if the driver and MRO don’t connect?

There are three circumstances in which the MRO may verify a result without an interview with the employee, including:

1. If the employee expressly declines the opportunity to discuss the test with the MRO.
2. If the DER has successfully made a contact and instructed the employee to contact the MRO and more than 72 hours have passed.
3. If neither the MRO nor the DER, after making and documenting all reasonable efforts, has been able to contact the employee within ten days of the date on which the MRO receives the confirmed test result from the laboratory.

After the MRO has verified a test result and reported the result to the DER, the MRO must allow the employee — within 60 days of the verification — to present documentation that serious illness, injury, or other circumstances unavoidably precluded contact with the MRO and/or DER in the times provided. On the basis of such information, the MRO may reopen the verification, allowing the employee to present information concerning whether there is a legitimate medical explanation of the confirmed test result.