55% of Americans regularly take prescription medications and on average most of these individuals take at least four medications. The most common prescription medications are antibiotics, antidepressants, and opioid painkillers. Opioid use has skyrocketed in recent years and 70% of workplaces in a recent National Safety Council survey reported feeling the negative effects of opioid abuse. (Learn more in How Prescription Opioids Affect The Workplace). This is a serious and growing problem for employers, particularly those with safety-sensitive workplaces.
As an employer, you are required to test for certain prescription medications under Department of Transportation (DOT) regulations. In conjunction with the U.S. government's response to the opioid crisis, DOT made some fairly substantial changes to its mandatory drug tests and related regulations. These changes, known as the final rule, went into effect on January 1, 2018. If you are a DOT covered employer, here is what you need to know about the use of prescription medications in your workplace and how they are affected by DOT testing regulations. (Learn more in What Employers Need To Know About Prescriptions In The Workplace).
Which prescription medications are tested by DOT?
Use of drugs such as fentanyl, heroin and opiates is on the rise in the workplace and DOT employers are not immune to this epidemic. In fact, the economic cost of the opioid crisis alone is thought to exceed $78.5 billion. Unfortunately, the original DOT 5 panel drug test did not adequately test for these drugs.
The DOT final rule added four semi-synthetic opioids to the test panel: hydrocodone, hydromorphone, oxymorphone and oxycodone. All of these are legal prescription medications and include brand names such as OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid and Exalgo. The test already covered marijuana metabolites/THC, cocaine metabolites, amphetamines, opiates (codeine, heroin, morphine), and Phencyclidine (PCP).
The final rule also lowered acceptable levels for both marijuana and amphetamines and clarified that only urine tests are acceptable for DOT drug testing.
Is medical marijuana legal for DOT employees?
Although 22 states have now legalized the use of medical marijuana, federal law still prohibits its use. It remains against the law for safety-sensitive employees of DOT covered workplaces to use marijuana, medical or otherwise. Additionally, DOT regulations specifically prohibit a Medical Review Officer (MRO) from verifying a drug test as negative based on a physician’s recommendation that an employee use medical marijuana.
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What are the minimum standards for prescription drug use?
In order to perform safety-sensitive functions, DOT states that employees using prescription medications and over-the-counter drugs must meet the following minimum standards:
- A licensed physician must have prescribed the medication.
- The treating/prescribing physician has made a good faith judgment that the use of the substance at the prescribed or authorized dosage level is consistent with the safe performance of an employee’s duties.
- The substance is used at the dosage prescribed or authorized.
- If more than one physician is treating an employee, at least one of those physicians must be informed of all prescribed medications and has determined that the use of these medications will still allow the worker to perform their duties safely.
- The prescription medication is not expressly prohibited by the DOT agency drug regulations. For example, certain agencies have rules governing the use of specific prescription medications such as methadone.
When can you test employees?
Safety-sensitive employees can be tested during any of the following situations:
What is the role of the MRO?
In the event of a positive test result for a possible prescription medication, the Medical Review Officer (MRO) will review test results and then contact an employee or candidate directly to request an explanation of a positive test result. Your employee then has five days to ensure their prescribing physician contacts the MRO. The prescribing physician must be willing to state to the MRO that the employee can still safely perform safety-sensitive functions while taking the medication. You should also be aware that the employee is entitled to rely on the physician’s prescription and the employer cannot override the prescription either in terms of dosage or duration of the prescription.
If the prescribing physician refuses to make an attestation, the test result is considered positive. If the MRO believes an employee is medically unqualified according to DOT agency regulations or if the employee’s prescription drug use represents a safety hazard, the MRO will report this to you, or your designated representative. An MRO may choose to report this information to you even if the MRO verifies the drug test result as negative.
What are my responsibilities after a positive test?
Once an employee tests positive, they must be immediately removed from any DOT regulated safety-sensitive functions. Your second responsibility as an employer is to provide the employee with a list of qualified Substance Abuse Professionals (SAP) in your area. The SAP will evaluate the employee and recommend education and/or treatment.
You should also have an independent fitness-for-duty evaluation performed by an DOT approved examiner if an employee tests positive for opioids. DOT covered employers are under no obligation to allow an employee who has tested positive to return to work. Before you do allow an employee to return to work, however, they must meet the following conditions:
- Complete the recommended SAP education or treatment recommendations
- Take a drug test and secure a negative response
- Be subjected to at least 6 random drug tests in the first year of return. These random tests can continue for up to 60 months depending upon the recommendations of the SAP
The role of the American Disabilities Association
The American Disabilities Association protects American workers from workplace discrimination based on disabilities and this extends to the use of medical prescriptions used to treat disabilities. A DOT employer does not necessarily have to reinstate an employee with a positive test result, but you should consider offering reasonable accommodations, including modification of an employee’s duties, where possible.
What about my workplace drug policies?
According to DOT agencies and the Unites States Coast Guard, DOT-regulated employers must to make changes to their existing drug and alcohol policies to reflect recent changes if they specifically list the sub-categories of drugs. They can either add the four additions to the panel and delete MDEA or simply eliminate all sub-categories.
To fully protect your workplace, your drug and alcohol testing policies should include a fitness-for-duty policy, accommodation policies and require all DOT-covered employees to disclose any legal prescription medications that might impair their ability to do their jobs safely. Your policy should require certain DOT-covered employees to disclose any arrests for off-duty DUIs, convictions, or diversion programs (classes or rehabilitation). It’s also a good idea to advertise your policy and the new DOT regulations to your employees.