Can a Maryland employer order a workplace drug test without a doctor, and who is allowed to see the results?

Plain-English summary

The Governor's Office of Justice Assistance asked the Attorney General in 1990 how Maryland's job-related drug and alcohol testing statute, HG §17-214.1, actually worked in two respects: who is allowed to order a workplace drug test, and who is allowed to see and handle a positive result. The statute did not require or forbid testing; it just set procedures for employers that chose to test.

On the first question, the Attorney General concluded that an employer could go straight to a laboratory to arrange job-related testing. As a general matter, Maryland law lets only a physician (or someone acting under a physician's authority) order a medical laboratory test, because diagnosing drug or alcohol abuse is treated as the practice of medicine. But the opinion read the workplace-testing statute to deliberately leave out any physician-order requirement, reasoning that requiring a doctor to sign off on random employee screenings would serve no real purpose. So a lab could perform job-related drug testing at the request of an employer or its authorized agent.

On the second question, the opinion found one firm rule buried in the statute's confidentiality provisions: before a laboratory reports a positive result to the employer, a physician or other qualified health care professional has to screen it. That screening exists so the employer never learns that a "positive" was caused by lawful use of an over-the-counter or properly prescribed drug rather than by illegal drug use. Maryland law did not say exactly who was qualified to do the screening, and it did not adopt the federal drug-testing program's "medical review officer" requirement, which reserves that review to a specially trained physician. Under Maryland law, a physician could do the screening, but the statute did not require that only a physician do it.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Maryland's drug- and alcohol-testing law has been amended repeatedly since 1990, and its section numbers and cross-references (including the COMAR laboratory regulations and the federal drug-testing guidelines the opinion discussed) have changed. Federal workplace drug-testing rules have also evolved. Read the specific requirements, deadlines (such as the 30-day notification period the opinion mentions), and citations here as the law as it stood in 1990, and check the current Health-General Article and current federal and State regulations before relying on any of it.

Common questions

Did a Maryland employer need a doctor to order a workplace drug test?
No, according to this 1990 opinion. Although only a physician can generally order a medical laboratory test, the Attorney General read the workplace-testing statute to omit that requirement, so an employer or its authorized agent could arrange job-related testing directly with a laboratory.

Could the lab just send raw results straight to the employer?
No. The opinion concluded that a physician or other qualified health care professional had to screen a positive result before the laboratory reported it, precisely so the employer would not be told about lawful over-the-counter or prescription drug use that can trigger a positive.

Did Maryland require a "medical review officer"?
No. A "medical review officer" is a federal drug-testing term for a specially trained physician who evaluates positive results against the person's medical history. The opinion said Maryland law did not impose that requirement, though a physician certainly could serve the screening role.

Why does prescription or over-the-counter drug use matter here?
Because a test can read positive for reasons that have nothing to do with illegal drug use. The statute's confidentiality provisions barred reporting a positive that reflected lawful nonprescription drug use, or a properly prescribed drug, so the screening step was there to strip that information out before the employer saw the result.

Background and statutory framework

HG §17-214.1, enacted in 1988 and amended in 1989 and 1990, set out procedures meant to keep job-related drug and alcohol testing fair and accurate. It neither mandated nor prohibited testing; it applied when an employer required a person to be tested "for job-related reasons." The statute required the employer to use a laboratory holding a permit from the Laboratories Administration of the Department of Health and Mental Hygiene (or a comparably certified out-of-state lab), to tell an employee the testing laboratory's name and address on request, and, after a confirmed positive, to give the employee a copy of the result, the employer's written drug-and-alcohol policy, any notice of intended discipline, and notice of the right to request independent retesting of the same sample within a set time.

On who may order a test, the opinion walked through the general Maryland rule and then explained why it did not control here. A regulation of the Laboratories Administration bars a medical laboratory from running an examination without authorization by a physician, a court, or another person authorized by law. That rule rests on several statutes: the permit requirement for operating a medical laboratory (HG §17-205(a)), the definition of a "medical laboratory" as one making examinations connected to diagnosis or assessment of health (HG §17-201(b)(1)), the permit-by-class-of-service scheme (HG §17-208(b)), and the Maryland Medical Practice Act's definition of practicing medicine, which includes diagnosing an ailment by test (§14-101(j)(2)(i) of the Health Occupations Article). Because substance abuse is a recognized pathology, diagnosing it, and using a lab as part of that diagnosis, is ordinarily the practice of medicine and belongs to a physician or a properly delegated professional. But all of those provisions assume a therapeutic physician-patient relationship. The one statute aimed directly at workplace testing, HG §17-214.1, contains no physician-order requirement, and the opinion concluded that omission was deliberate: requiring a physician to sign requisitions for randomly selected employees would serve no legislative purpose. So a laboratory could perform job-related testing at the employer's request.

On reporting, the opinion identified a single state-law requirement: a physician or other appropriate health care professional, whether employed by the lab or the employer, must review positive results before they go to the employer. That flows from the confidentiality command in HG §17-214.1(h), which forbids revealing to the employer a positive attributable to lawful nonprescription drug use or to a properly prescribed drug. A laboratory cannot honor that command unless someone qualified to compare results against an employee's medical situation screens the positives first. The statute did not specify who is qualified, leaving it to judgment about the relative qualifications of health care professionals, and it did not require a "medical review officer" as the federal guidelines from the National Institute on Drug Abuse do for federal agencies. The opinion noted that whether only a physician should interpret positives is a debatable policy question (the federal Department of Transportation, for instance, reserved that judgment to a physician), but concluded Maryland law had not mandated it. Bottom line: a lab could test for job-related reasons on an employer's request without a physician's order, but a physician or other qualified professional had to screen positives before the employer was told.

Citations and references

Statutes and regulations:

• HG §17-214.1 of the Health-General Article, the job-related drug and alcohol testing statute at the center of the opinion, including its confidentiality provisions in subsection (h)
• HG §17-205(a), the medical laboratory permit requirement; HG §17-201(b)(1), the definition of "medical laboratory"; HG §17-208(b), the permit-by-class-of-service scheme; and HG §17-202.1, on release of laboratory results
• §14-101(j)(2)(i) of the Health Occupations Article, the Maryland Medical Practice Act definition of practicing medicine
• Article 27, §277 of the Maryland Code, defining "controlled dangerous substances"
• Chapter 727 of the Laws of Maryland 1988, which enacted HG §17-214.1, and Chapter 602 (House Bill 800) of the Laws of Maryland 1990, adding the federal cutoff-level requirement
• The Laboratories Administration regulations at COMAR 10.10.01, and the federal drug-testing materials the opinion discussed (55 Fed. Reg. 9538; 53 Fed. Reg. 11970; 54 Fed. Reg. 49854; 42 C.F.R. §493.1101; 49 C.F.R. §40.33)

Cases:

• Morris v. Prince George's County, 319 Md. 597, 603-04, 573 A.2d 1346 (1990), the Court of Appeals' statement that statutes are construed to achieve their legislative purpose

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 163-171 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

DRUG TESTING

Laboratories — Physician Need Not Order Tests Conducted for Job-Related Reasons — Physician or Other Qualified Professional Must Screen Positive Test Results

September 10, 1990

Ms. Joann M. Levy
Governor's Office of Justice Assistance

 You have requested our opinion concerning the requirements of §17-214.1 of the Health-General Article ("HG" Article), dealing with job-related drug and alcohol testing. Specifically, you have asked the following questions:

    1.   Who is authorized to order a drug test under the statute?

2. How are the results communicated to the employer and by whom? Who is authorized to review the results and speak with employees or employee-applicants if a test is confirmed positive? Is a medical review officer required?

 For the reasons stated below, we conclude as follows:

    1. Although a laboratory generally may analyze a specimen only upon order of a physician, this requirement does not apply to drug tests conducted for job-related reasons. An employer may contract directly with a laboratory for such testing.

    2. A laboratory must ensure that positive results are screened before the laboratory reports them to the employer, so that information which may not be reported has been deleted. The screening must be done by a physician or other professional qualified to assess whether positive test results reflect permissible use of over-the-counter or prescription drugs. Maryland law does not require that the screening be done by a "medical review officer," which is a term in the guidelines of the federal drug testing program referring to a physician specially trained in substance abuse disorders who evaluates positive test results in light of an employee's medical background.

I

HG §17-214.1

  HG §17-214.1, enacted in 1988 and amended in both 1989 and 1990, sets out procedures to ensure fair and accurate drug and alcohol testing procedures when an employer chooses to adopt a testing program.1 The statute neither mandates nor prohibits testing; rather, it prescribes procedures when "[a]n employer ... requires any person to be tested for job-related reasons ...." HG §17-214.1(b).2

  Under HG §17-214.1(b)(1), an employer must have the specimen tested by a laboratory that holds a permit from the Laboratories Administration of the Department of Health and Mental Hygiene ("DHMH") or, if the laboratory is located outside the State, is "certified or otherwise approved" under HG §17-214.1(e). This latter subsection provides that DHMH is to adopt regulations governing the certification of laboratories that conduct job-related drug and alcohol testing. The regulations require laboratory compliance with certain standards and guidelines for accreditation for proficiency testing and for compliance with federal cutoff levels for positive testing; they also include procedures for annual recertification and inspection. See COMAR 10.10.01.3 An employer who requires an employee to be tested must also inform the employee of the name and address of the laboratory that will perform the test, if the employee so requests. HG §17-214.1(b)(2).

 If the employee has been tested positive for the use or abuse of any drug or alcohol, the employer must, after confirmation of the test results, supply the employee with: (1) a copy of the test result; (2) a copy of the employer's written policy on drug or alcohol abuse; (3) if applicable, written notice of the employer's intent to take any disciplinary action; and (4) a statement or copy of the provisions of HG §17-214.1(d), which permits an employee to request independent testing of the same sample for verification of the test result.4 The notification must be delivered in person or by certified mail and within 30 days from the date the test was performed. HG §17-214.1(e).

 HG §17-214.1(f) exempts drug and alcohol testing "of a person under arrest or held by a law enforcement or correctional agency"; "[a]lcohol testing procedures conducted by a law enforcement or correctional agency on breath testing equipment certified by the State Toxicologist"; and drug testing "by a laboratory facility of a law enforcement or correctional agency that maintains laboratory testing standards comparable to the standards in this section."

 Finally, HG §17-214.1(h)(1) requires that certain information be kept confidential:

          Except as [required by certain federal laws on commercial motor vehicles], in the course of obtaining information for, or as a result of, conducting job-related alcohol or controlled dangerous substance testing for an employer under this section, a laboratory, a physician, including a physician retained by the employer, or any other person may not reveal to the employer information regarding:

              (i) The use of a nonprescription drug, excluding alcohol, that is not prohibited under the laws of the State; or

               (ii) The use of a medically prescribed drug, unless the person being tested is unable to establish that the drug was medically prescribed under the laws of the State.

II

Authority to Order Test

 Under federal law, a laboratory that wants to participate in the Medicare and Medicaid programs, or that performs tests on specimens shipped across state lines, "must perform tests only at the written or electronic request of an authorized person." 55 Fed. Reg. 9538, 9594 (March 14, 1990), to be codified at 42 C.F.R. §493.1101(b). Under Medicare, only a physician is an "authorized person." 55 Fed. Reg. at 9541 and 9577. See 42 U.S.C. §1861(r). Otherwise, an "authorized person" is to be defined by reference to state law. 55 Fed. Reg. at 9541.

Under Maryland law, as a general matter only a physician, or someone acting under the authority of a physician, may order a laboratory test. The pertinent regulation of the Laboratories Administration provides as follows:

          A medical laboratory may not perform a laboratory examination without obtaining signed authorization by a physician, court of law, or other person authorized to order laboratory examinations under various sections of the Annotated Code of Maryland.

COMAR 10.10.01.06B(8).

 This rule properly reflects the interaction of several statutory provisions. HG §17-205(a) requires that a person obtain a permit from DHMH before the person may "[o]perate a medical laboratory in this State" or "[R]epresent or service in this State any medical laboratory that is outside this State."5 HG §17-201(b)(1) defines a "medical laboratory" as "any laboratory that makes examinations in connection with the diagnosis and control of human diseases or the assessment of human health, nutritional, or medical conditions." (Emphasis added.)

 HG §17-208(b), relating to issuance and contents of a permit, provides that a laboratory must apply for certain "classes of services that the medical laboratory may offer" and implies that the permit authorizes only those classes of services set forth in the permit. One such class of service or specialty is the testing for drugs or alcohol. See COMAR 10.10.01.03N(7).

 Under the Maryland Medical Practice Act, the practice of medicine includes, in relevant part, the following:

     Diagnosing, healing, treating, preventing, prescribing for, or removing any physical, mental or emotional ailment or supposed ailment of an individual

          1. By physical, mental, or emotional or other process that is exercised or invoked by the practitioner, the patient, or both; or

          2. By appliance, test, drug, operation, or treatment.

§14-101(j)(2)(i) of the Health Occupations Article ("HO" Article) (emphasis added).

Substance abuse is a recognized pathology. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 163-64 (3d ed. 1980). Thus, ordinarily, the diagnosis of drug or alcohol abuse — and, therefore, the use of a medical laboratory as part of a diagnostic procedure — constitutes the practice of medicine and may be undertaken only by a licensed physician (or by someone to whom those duties are properly delegated by a licensed physician under HO §14-304).6

 Moreover, the general conclusion that only a physician may order a medical laboratories test, including drug or alcohol tests, is buttressed by HG §17-202.1, dealing with the release of laboratory examination results. Under that section, if an individual requests in writing a copy of the results of a laboratory examination performed upon that individual, the laboratory must send a copy. But the statute also requires the laboratory to "notify the individual's physician before sending the results to the individual." HG §17-202.1(c).

  All of these general provisions, however, are framed with reference to laboratory testing as an outgrowth of the therapeutic relationship between physician and patient. None appears to contemplate the quite different circumstances of a workplace drug testing program, under which testing is for "job-related reasons." HG §17-214.1(b).7 And the one statute directly addressing workplace testing, HG §17-214.1, does not require that tests be ordered by a physician.

 In our view, the pertinent statute omits such a requirement because it would make little sense, given the realities of job-related testing. For example, assuming no impediment from a collective bargaining agreement, a private sector employer is free to adopt a random testing program for its employees. Surely no public policy objective would be served by having a physician engage in the ministerial act of signing testing requisitions for those employees selected at random to be tested. See generally Morris v. Prince George's County, 319 Md. 597, 603-04, 573 A.2d 1346 (1990) (statutes are to be construed to achieve "the legislative purpose, the general aim or policy, the ends to be accomplished, the evils to be redressed ...").

 In short, we think that a laboratory may perform drug testing for job-related reasons at the request of an employer or its authorized agent.

III

Reporting of Results

 Your other questions concern legal requirements that apply to the reporting of test results — first by laboratory to the employer, then by the employer to the employee.

  The only requirement that we can identify under State law is that a physician or other appropriate health care professional, whether employed by the laboratory or the employer, review the results before they are reported to the employer.8 This requirement necessarily follows, in our view, from the confidentiality requirements of HG §17-214.1(h). Raw test results may not be reported to an employer; they must first be screened to assure that the employer does not learn of the employee's use of a "nonprescription drug, excluding alcohol, that is not prohibited under the laws of the State" or of a "medically prescribed drug, unless the person being tested is unable to establish that the drug was medically prescribed under the laws of the State." HG §17-214.1(h)(1)(i) and (ii). The point of these provisions, we take it, is that an employer should not learn of a positive test if the test is positive not because of illegal drug use, but rather because of components in an over-the-counter or prescription drug properly used by the employee.

 A laboratory cannot comply with this requirement unless it ensures that someone qualified to assess test results against information about an employee's particular medical situation is available to screen positive test results. However, the statute does not specify who is qualified to carry out this screening role, and this matter is largely one of judgment about the comparative qualifications of various health care professionals. Certainly a physician would be qualified to do so; we cannot say, however, that only a physician may do so. Ultimately, the statute imposes responsibility on the laboratory to accomplish the screening properly without specifying exactly how it is to be done.

  In particular, HG §17-214.1 does not require a "medical review officer" in the chain of reporting. This term is used in certain guidelines for federal workplace drug testing programs issued by the National Institute on Drug Abuse. 53 Fed. Reg. 11970 (April 11, 1988). A "medical review officer" is a "licensed physician responsible for receiving laboratory results generated by an agency's drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's positive test result together with his or her medical history and any other relevant biomedical information." 53 Fed. Reg. at 11980. This specially trained physician, who may be an agency or contract employee, is to "examine alternate medical explanations for any positive test result" by, for example, "conducting a medical interview with the individual ...." 53 Fed. Reg. at 11985.

 These guidelines apply only to federal agencies. 53 Fed. Reg. at 11979.9 The guidelines do not prescribe generally applicable standards, although they are an authoritative and important resource.10 Maryland law does not impose a comparable "medical review officer" requirement. The issue whether only a physician is qualified to distinguish permissible from prohibited use of drugs is certainly debatable as a policy matter. When the federal Department of Transportation adopted its drug testing program, for instance, it rejected suggestions that nonphysicians be permitted to interpret positive test results, concluding that "it is important ... that a person with substantial medical training be in a position to make the critical medical judgment about whether an individual's drug use is legitimate." 54 Fed. Reg. 49854, 49860 (Dec. 1, 1989).11 See also COMAR 06.01.09.03D(2) and 06.01.09.04C(2) (under State Department of Personnel drug testing program, test results are reported to State Medical Director.) Whatever the policy merits of a requirement that a physician review positive test results, however, Maryland law has not mandated it.

IV

Conclusion

 In summary, it is our opinion that a laboratory may conduct a drug test for job-related reasons upon request of an employer; an order of a physician is not required. However, a physician or other qualified health care professional must screen positive test results before they are reported to the employer.

                                           J. Joseph Curran, Jr.
                                           Attorney General

                                           Jack Schwartz
                                           Chief Counsel
                                             Opinions & Advice

                                           Geoffrey J. C. Boyd
                                           Assistant Attorney General

1
Throughout this opinion, we use the phrase "drug testing" to refer to testing for "controlled dangerous substances," as defined in Article 27, §277 of the Maryland Code. See HG §17-214.1(a)(3).

2
HG §17-214.1(g) states that the statute is applicable to job-related drug and alcohol testing of "any person, including pre-employment applicants, employees, and contractors." For ease of reference, we shall speak simply of "employees" in this opinion.
Uncodified Section 2 of Chapter 727 of the Laws of Maryland 1988, which enacted HG §17-214.1, states that "this act may not be construed to alter or expand the existing authority under law of an employer to test for the incidence of the use of drugs or alcohol of an employee, contractor, or applicant for employment."

3
Certain amendments to these regulations have been proposed. 17:5 Md. Reg. 668 (March 9, 1990); 17:16 Md. Reg. 1998 (Aug. 10, 1990).

4
The employee tested must pay the cost of the independent test. HG §17-214.1(d)(2).

5
Exceptions to the permit requirements exist for physician office laboratories that meet certain specified requirements not applicable here.

6
We are not here addressing the role of a licensed certified social worker, discussed in detail in 73 Opinions of the Attorney General 208 (1988).

7
We are not suggesting that assistance to the employee with a substance abuse problem ought not to be a part of a drug-free workplace program. Our point is simply that an employer adopts a testing program primarily in furtherance of its business interests.

8
Laboratories subject to federal regulation are required to send a report promptly "to the authorized person ... that initially requested the test." 55 Fed. Reg. at 9594, to be codified at 42 C.F.R. §493.1101(d).

9
The portion of the guidelines dealing with laboratory procedures applies to any laboratory seeking to perform drug testing for a federal agency.

10
Chapter 602 (House Bill 800) of the Laws of Maryland 1990 requires that laboratories comply with the cutoff levels for positive test results contained in the federal guidelines. This new provision is HG §17-214(e)(2)(iv).

11
Employers subject to the federal Department of Transportation regulations must comply with its requirement that a medical review officer, "a licensed physician with knowledge of substance abuse disorders," review all results prior to their transmission to the employer. 54 Fed. Reg. at 49875, to be codified at 49 C.F.R. §40.33(a)(1) and (b)(1).