DOT Drug Testing Rules Enlist Employers in Battle Against Opioids

The war on drugs—namely opioids—is in full swing, with federal agencies, state governments, and private companies trying to stem the tide of exorbitant health-care costs, lost productivity, addiction treatment, and criminal justice involvement. The latest federal agency to enter the fray is the Department of Transportation. The agency’s weapon? Testing.

According to the National Institute on Drug Abuse, the misuse of and addiction to opioids—including prescription pain relievers, heroin, and synthetic opioids such as fentanyl—have created a serious national crisis carrying, among other things, an economic burden of some $78.5 billion a year. Even President Trump has weighed in on the issue by declaring the opioid crisis a public health emergency.

Drug Screening Expands in 2018

Effective Jan. 1, 2018, federal drug testing requirements for airline pilots, train engineers, and truck drivers will include screening for a range of opioids under a new rule from the Department of Transportation. The rules add hydrocodone, hydromorphone, oxymorphone, and oxycodone to a list that already includes marijuana, cocaine, and heroin.

The DOT notes that the addition of the four semi-synthetic opioids makes the drug testing rules consistent with federal Health and Human Services Department Mandatory Guidelines. Another, more compelling reason, however, is the agency’s need to respond to a national problem that can affect transportation safety.

Some responses from commenters to the new DOT rule expressed concerns that adding these substances would increase circumstances in which drivers innocently using opioids (e.g., via a prescription for pain medication) would be unfairly treated as drug abusers, with consequent positive tests harming their careers. Other commenters, including some labor organizations, were concerned that employees would have to compromise their medical privacy in order to avoid results being verified positive by medical review officers (MROs). However, the majority of commenters to the DOT rule were in favor of the changes.

While transportation workers have long been subject to random screenings for various drugs, the list didn't include the synthetic opioid pain killers that have spiked levels of addiction and overdose deaths in the U.S. According to the National Transportation Safety Board, that class of drugs has begun to show up in post-accident drug testing, such as a 2016 Amtrak rail collision that killed two workers. Drug testing required after an accident typically screens for more substances than the random tests that transportation workers get.

As the new DOT rules soon will cover random testing for opioids, will private employers follow? According to the National Safety Council, 57 percent of employers perform drug testing. Out of those, more than 40 percent don't screen for synthetic opioids like oxycodone—among the most widely abused narcotics.

Meanwhile, other federal agencies are waging their own battles against opioid abuse, developing plans to reduce the impact of opioid abuse on families and communities. For example, the Food and Drug Administration is working to collaborate with advisory committees before making critical drug product and labeling decisions, and improve treatment of both addiction and pain.

Meanwhile, the Centers for Disease Control and Prevention has its "Prevention for States Program," which funds, implements, and evaluates prevention strategies designed to improve safe drug prescribing practices and prevent prescription drug overuse, misuse, abuse, and overdose.

Action Items for Employers

Employers have weapons against opioid abuse as well. According to the National Safety Council, among the steps employers can take are the following:

 Have a clear, comprehensive drug-free workplace policy that includes drug testing. Objectively proving an unsafe level of impairment can be difficult, so it’s a good idea to seek legal advice before implementing a testing policy for opioids.

 Understand the law related to prescription drug use in the workplace. Supervisors should be aware that employees’ use of prescription drugs (including opioids) to treat a disability might be protected under the Americans with Disabilities Act, and they should be informed about how to offer reasonable accommodations, including modification of employees’ job duties.

 Educate employees about the dangers of opioid use, including the impact on driving, the risks of working while impaired, the folly of mixing opioids and alcohol, the dangers of using opioid painkillers for prolonged periods, and the importance of storing (and disposing of) such drugs safely and securely at home.

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