On January 1, 2018, commercial motor vehicle drivers and those performing safety sensitive functions for cargo and passenger carriers (collectively “drivers”) regulated by the United States Department of Transportation (DOT) will now be screened for four additional semi-synthetic opioids when they undergo administered drug tests. (DOT-regulated employers include those regulated by the Federal Motor Carrier Safety Administration and the Federal Transit Administration.) The expanded list of restricted substances now includes hydrocodone, oxycodone, hydromorphone, and oxymorphone. Common names for these semi-synthetic opioids include OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid®, and Exalgo®. The new testing rules also add MDA (methylenedioxyamphetamine) as an initial test analyte and remove MDEA (methylenedioxymethamphetamine) as a confirmatory test analyte. The DOT’s new rule closely aligns with the recent changes to the Health and Human Services’ Mandatory Guidelines for Federal Workplace Drug Testing Programs.
Because a treating physician can legally prescribe the four added opioids, the new rule may result in more initial positive test results slowing the screening process for medical review officers (MROs). MROs will then have to evaluate whether the employee is taking the opioid pursuant to a valid prescription and if the driver is fit to operate a commercial motor vehicle. MROs will continue to act as the ultimate decision makers for whether a driver, with or without a legal opioid prescription, is fit to drive. The amended regulations still permit the drivers to offer a legitimate medical explanation for the presence of drugs in her/his system, but the MRO is not permitted to question whether the prescribing physician should have prescribed the substance.
If the driver presents a legitimate medical explanation for a positive test result, the MRO will report the result to the employer as a “negative.” If the MRO reports the result as a “positive,” then the motor carrier employer must remove the driver from performing safety-sensitive functions and, as before, provide the driver with a list of qualified substance abuse professionals. In the event a driver with a prescription for an opioid passes the drug test but is deemed unfit to drive, then the MRO may forward a “safety concern” letter to the driver’s employer after a five day waiting period. The waiting period allows the driver’s physician an opportunity to discuss the matter with the MRO.
The new drug testing rules also make several technical amendments, clarify certain definitions, and remove the requirement for employers and consortium/third party administrators to submit blind specimens. The revised rules further require MROs, substance abuse professionals, breath alcohol technicians, and screening test technicians to subscribe to the Office of Drug & Alcohol Policy & Compliance’s (ODAPC) email service to receive ODAPC email updates.
The revised regulations go into effect on January 1, 2018.
If you have questions about the amendments and whether you need to update your DOT policies, please contact Lauren Nuffort at 612.336.9308 or lnuffort@lommen.com or Mike Glover at 612.336.1269 or mglover@lommen.com.