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Category: California Employment Law
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I could use some advice from an MRO, as I am having a major

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I could use some advice from an MRO, as I am having a major problem with an SAP assigned to me. Awhile back I tested positive for morphine on a DOT pre-employment test when I was in a hurry to get back to work as a commercial driver as a favor to my dispatcher after surgery. I waited 3 days after quitting the morphine, relying on the SAMHSA average for metabolic clearance of 2-3 days. If I had waited 4 days after stopping would that have been enough? I have a slow metabolism. What is the longest you've heard about for morphine to clear?

In chronic morphine users, the reported maximum detection in blood is 5 days (urine would be a bit longer). Heroin which breaks down in the body. One study showed that heroin approximately 1/2 of them were still positive for morphine at 6 days. The maximum reported for heroin is 11.3 days (as the morphine metabolite)

The typical detection period of 3 days is an approximate average, and really applies more to isolated/infrequent use.

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Customer: replied 3 years ago.

Thank you for that answer. In my case I was given a prescription for morphine tablets by the workers comp neurologist, who was also a pain management specialist, in Sept of 2010, because I seemed to be having a bad or allergic reaction to the Vicodin he had prescribed after diagnosing me with carpal tunnel syndrome and osteoarthritis with severe thumb joint degeneration of both hands.

I was a commercial driver, 20 years driving trucks, 23 driving buses, mixed with construction work, piano playing, and my hands were in bad shape. I could not grip well, and could not use my thumbs to open car doors that required thumbs pushing the button while gripping the door handle. The carpal tunnel was more numb than painful, but the osteoarthritis of the thumbs hurt without even moving them. But there was a surgeon who said it could all be fixed, and he done hundreds of such hand surgeries with almost all successful. Hard to believe, but I had to go for it, especially since workers comp through my employer would pay for it all. But the surgeon would only do one surgery at a time so it could take a year or more to get it all done. I was just happy it was possible.

The neurologist switched me to morphine tablets to see if the Vicodin was the problem. Sure enough, a strange rash I had developed went away and I only needed a couple tablets instead of six or more of the Vicodin to dull the pain. The surgeon was backed up with appointments, which I figured meant he was good and got a lot of referrals and business accordingly, so surgery would not happen until 1-26-11. I could not drive the bus, but I could train and upgrade licenses since I was the DMV examiner for our company, the only one, and the doctor said I could ride in the truck or bus, but not drive.

I stopped the opioid meds and tried tramadol, which was not as strong but adequate, and did not show up on the DOT pre-employment test I had to take because I had been off work for over 30 days, per DOT regulations. I passed the test and went back to work training and upgrading licenses, when needed, and had the first surgery on 1-26-11. I was out of tramadol but still had some morphine left from that one bottle prescribed back in Sept so I took some then waited 3 days to take another pre-employment test, per DOT since I had been off for 30 days again.

The result was positive for morphine. No problem, I figured, I'd just stand-down and take the test again in a few days. Since I knew DOT regulations well I had told my dispatcher and a manager I had been taking the pain meds the entire time I had been taking them so I would be covered under the "voluntary admission" of controlled substance use per DOT thus my employer could take "no adverse action" and must keep me employed pending the MRO investigation, per DOT Title 49 - part 40 regulations.

The MRO called me from New York to ask about the positive result for morphine and I explained the situation. He then called my neurologist and told him to examine me "face-to-face" per DOT to assess my drug use or abuse. The neurologist, my primary physician, checked me out, but was somewhat annoyed by the New York style interview from the MRO. My doctor told me to go immediately to QUEST Labs and be tested for opioids and wrote a prescription accordingly.

As a courtesy to my employer I called the HR DER to let them know I was abiding by the process. The DER told me emphatically not to be tested. I am not going to disobey my employer and since I knew the test my doctor ordered would not technically be considered DOT perhaps my employer wanted me to take [email protected] clinic. Since it was a long drive to a testing facility I went home to await further instructions from my employer.

When I called my doctor the next day to tell him why I disobeyed his order to get tested at once, he was not sympathetic and said I was no longer his patient. He was rather intimidated by the MRO investigation and considered my refusal to test an indication of, well, a refusal to follow his orders. I told him I had stopped the morphine and was going to ask for a refill of the tramadol. Too late.

My employer made an appointment for me to see them, not for a drug test. When I went to that appointment I was told by the DER and a witness from HR to sign the paper stating I was terminated.

I now must report to a substance abuse professional.

I'm going to hit reply now that I remember losing longer posts.

I'm not sure the exact nature of your follow up question:

You have a postive test, and under DOT regulations, you would need to follow up with the SAP before you could return to any safety sensitive duties for a DOT regulated employer.
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Customer: replied 3 years ago.

Thanks for following all that. This case needs some explanation leading up to the questions to get context. Last time I wrote a long question it disappeared. I'm glad you are an MRO.

To continue:

I was dropped by my primary physician-neurologist when I obeyed my employer DER and did not get the drug test my neurologist-pain management doctor ordered me to get as part of the MRO investigation into why I tested positive for morphine. The MRO who got my drug test result was in NY thus he asked my neurologist to examine me for drug abuse. I found out later in my own investigation that my HR Director terminated me because he thought I should have gone directly into inpatient rehab after testing positive for prescription morphine. My union rep told me they would fire me unless I checked into rehab.

I told the union rep I did not need rehab since that was the first morphine I had since before my surgery because I ran out of tramadol and the last of the prescription from a few months before. I did not really care for the morphine, could not take vicodin as I was allergic to acetaminophen, and preferred tramadol as a pain med, which was did not show up on the DOT pre-employment test.

Per DOT regulations and our union contract I knew I could not be legally terminated because I had given my manager "voluntary admission" of prior controlled substance use, yet I was fired anyway by an HR director who did not know DOT regulations or did not care and thought I had refused rehab.

I never refused rehab as I knew only an SAP could prescribe rehab, not a union rep or HR director and I had yet to have my appointment with the SAP.

I called the MRO in NY and explained what happened to my primary care doctor -- that he dropped me because I obeyed my employer DER and did not get re-tested for opioids as my doctor ordered, thus the MRO would not be hearing from that doctor.

The MRO was not sympathetic but she instructed me to send her a letter of explanation along with my prescription for morphine. I offered to send all my pharmacy records but she said they were only concerned about the drug that tested positive on the DOT pre-employment test -- morphine. I asked how long it would take to process my appeal and she said they were extremely busy and it could take 6 weeks to many months.

In the mean time I met for the first time with the SAP on 3-16-11 after being terminated from my employer of 23 years on 3-10-11. The SAP was provided by my union per our contract and after the hour-long meeting over breakfast at a restaurant she sentenced me to 6 months residential inpatient detox rehab, despite the fact that it had been a month since I had stopped all opioid use.

I was amazed and confused by this assessment since I had told the SAP I had stopped all pain meds and also had no more medical insurance since I was fired. I was also expecting a reversal of the positive to negative from the MRO when they got my letter and prescription. In the mean time I was awaiting another workers comp surgery on my hand while undergoing outpatient physical therapy after the last surgery on 1-26-11.

The SAP allowed me to postpone reporting to residential inpatient detox rehab because I was undergoing treatment for my hand through workers comp.

The SAP behavior made no sense to me made but any time I suggested such to her she got bothered and told me to take it up with my union rep. "Why?" I asked. The union rep had nothing to do with the SAP process, except that I had filed a grievance with the union over my unlawful termination. A Board of Adjustment meeting was scheduled for 8-16-11 to deal with the grievance.

In the mean time the MRO took 6 weeks to reverse the positive drug test result that started this whole Kafkavity of justice. My employer's DER was electronically transmitted the negative for morphine on 5-9-11. Per DOT I should have been put back to work immediately upon receipt of the MRO ruling, after another pre-employment drug test of course. I would have passed the test since it had been since 2-14-11 that I had stopped all opioids.

The problem was that my employer had neglected to tell me about the MRO reversal, nor did they inform the SAP.

In the interim, I called about a dozen rehab centers to see about hypothetically checking in per the SAP holding my job hostage. I was told the going rate for inpatient detox averaged about $1000 per day. I checked with the Salvation Army about their "free" rehab program but was rejected because of my hands being unable to work for the Salvation Army. Imagine my chagrin from being accepted for induction by the US army but rejected by the Salvation Army as unfit for rehab duty.

To add insult to injury the rehab centers said they would not put me through inpatient detox if I had been off all drugs for 3 months as there was no drug to detox. I said it was the only way my SAP would release me to go back to work, that I needed inpatient detox for 6 months. They suggested it might be insurance fraud if I said I was addicted when I was not, just to get my job back. I said I had been terminated by my employer and thus lost all medical, dental, and vision coverage. I said I could undersell my home for $200,000 and use it for inpatient rehab. They suggested I consider "outpatient" rehab since I was not on any drugs.

Here's a question or few finally:

Was I unlawfully terminated? Is the SAP in denial about my drug use or abuse? When an MRO reverses a positive result to negative, is it over? Does negative mean negative? Should I not be done with SAP? Can the SAP or my employer legally refuse me a copy of my file?

I believe this is more of an employment law issue, rather than a MRO issue. There are a number of unique and specific issues that should be evaluated by one of our employment law expert. I am going to ask the moderators to move the question to that category. Please do not reply to this question until one of the other experts answers - since that could lock them out for a period of time.

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