Question: We have an applicant who failed a preemployment drug test. They claimed it was because of a prescription, but we have a zero-tolerance policy. Do we have to make an exception for them?
Answer: Not an exception to your policy, but your drug testing procedures should be utilizing a medical review officer (MRO) to review and evaluate the legal use of prescription drugs. An MRO is a licensed physician who will review the initial drug test results and available information (such as prescription medications) and report drug test results to you only after taking into consideration the medical circumstances of the individual. If the drug test is governed by Department of Transportation (DOT) regulations, an MRO is a legally required part of the process. The Americans with Disabilities Act (ADA) does not consider a test for illegal drugs to be a medical exam; however, if your drug test outcome is a “positive” result due to an applicant’s use of legal prescription medication, excluding them from employment without further evaluation would be a violation of the ADA.
Jury awards over $400,000 in prescription drug discrimination lawsuit
In a recent case, an applicant who took prescription medications for PTSD claimed she was denied employment based on a failed preemployment drug test. The candidate had attempted to provide both the employer and the drug testing facility with a list of her prescription medications, but neither accepted that information from her. When her offer of employment was withdrawn, she filed a claim with the federal Equal Employment Opportunity Commission (EEOC) who found her claims to have merit and filed suit against the company. After a years-long battle, a jury awarded $405,083 in damages to the candidate (EEOC v. The Princess Martha, LLC, MD Fla, Jan. 2026).
Medical Review Officers provide essential liability protection for employers
An MRO can play an invaluable role in reducing liability in company-required drug testing. In the case described above, an MRO could have helped by reviewing the preliminary test results prior to releasing them to the employer. The MRO would have evaluated the prescriptions that the candidate was taking and determined whether the medications caused the preliminary positive test results. If you conduct drug testing on your applicants or employees, work with your drug testing facility to ensure that they are using an MRO prior to releasing drug test results to you. If they’re not using an MRO, ask them or your local occupational medicine clinic for a recommendation.
Members, for more information, see Vigilant’s legal guide, ADA and Prescription Drugs or ask your Vigilant Law Group employment attorney for assistance.
For non-members, if you need help navigating issues like these, learn about Vigilant membership today and how we help you can stay in front of employment issues.
