Should Transportation’s Approach Drive Employer Opioid Screening? (1)

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By Martin Berman-Gorvine

Employers worried about the opioid epidemic can follow drug testing practices from the Department of Transportation, even if they’re not in that industry.

Since Jan. 1, employers under the DOT’s aegis have had to add four semi-synthetic opioids to their drug-testing program: hydrocodone, hydromorphone, oxymorphone, and oxycodone. Other employers, especially those with employees holding safety-sensitive positions, might want to consider adopting this practice, management attorneys and background screeners say.

Oxycodone, hydrocodone, and other powerful opioids have created a drug abuse epidemic that is costing employers enormous sums in lost productivity and health insurance costs. “On a national scale, the opioid epidemic costs $41.8 billion in lost productivity annually,” the U.S. Chamber of Commerce reports on its website. As of 2013-2014, the federal Substance Abuse and Mental Health Services Administration reported that close to 2 million full-time employees were taking painkillers for non-medicinal use on at least a monthly basis.

Michael R. Frone, senior research scientist at the State University of New York at Buffalo, told Bloomberg Law in an April 5 email that the National Survey of Drug Use and Health shows that illicit opioid use in the overall U.S. workforce in 2016 ran at a rate of 4.6 percent for prescription pain relievers and 0.4 percent for heroin in the previous 12 months (which could include people who used only once during that period), and 1.2 percent for prescription pain relievers and 0.2 percent for heroin in the previous 30 days. Frone was skeptical that these figures represent what he called a “putative epidemic in the workforce.”

Testing Reveals Problem

The new DOT drug testing mandate has indirectly revealed the scale of the problem in 2018. “In the first three months of the year, there has been over a 50 percent increase in laboratory positives” among DOT-covered employees compared with the first quarter of 2017, Dr. Todd Simo, chief medical officer of background screening company HireRight, told Bloomberg Law April 4. He attributed the increase to the four opioid drugs now required to be included in the tests.

Only part of the increase in lab-positive results is due to illegal opioid abuse, since opioids are also widely available by prescription, Simo said. But that still leaves a 15 percent increase in “DOT-positive results” from drug testing—that is, a 15 percent increase in detection of illegal opioid use among the DOT-covered employees in the first quarter of 2018 compared with the corresponding period last year, he said.

Subject to state law, randomly administered opioid-enhanced testing is a possibility for employers in any industry grappling with the safety and performance problems posed by this type of drug abuse, Dale L. Deitchler, a shareholder in the Minneapolis office of Littler Mendelson, told Bloomberg Law April 4. For non-transportation industry employers, absent state law limitations and subject to Medical Review Officer review, “I don’t see any issue in including” the four newly DOT-mandated substances in a random drug testing program, he said.

A December blog post written by Deitchler and Littler Mendelson associate Jeff Dilger notes that the DOT opioid testing mandate comes on top of existing mandates for testing employees for amphetamines, cocaine, marijuana, phencyclidine, codeine, morphine, and heroin.

Employers should speak to the medical review officer of their drug testing program before adding the four newly DOT-covered drugs to their testing program, Deitchler said. Medical review officers report test results as negative where employees who test positive for opioids have a legitimate prescription, he added.

Treatment, Not Testing

Not everyone is on board the randomized drug testing train. “Drug testing doesn’t do anything to improve industrial safety,” Lewis Maltby, president of the National Workrights Institute, told Bloomberg Law April 5. Citing a book-length report from the National Academy of Sciences, he said the group also found that “drug testing does not deter drug use.”

“According the American Management Association, only 8 percent of employers have conducted a cost-benefit analysis of their drug testing program,” he added. “In addition, it is undisputed that drug tests detect inactive metabolites, not the drugs themselves.” A positive drug test thus does not show that the subject is under the influence, much less an addict, he said. “Drug tests tell an employer only that an employee has ingested some amount of a substance at some point in the past. It does not indicate how much was ingested or when. Most important, it doesn’t indicate why.”

Drug tests are promoted by test kit marketers, he said, while employers in general have stopped drug testing since the 1980s except where required by law, because “employers got tired of wasting their money.”

“We need more treatment facilities, not more testing,” Maltby said.

“If you have this information, what are you going to do with it?” Grant Smith, deputy director of National Affairs for the Drug Policy Alliance, told Bloomberg Law April 6. Finding out that an employee may have used opioids illicitly creates “an obligation to the employer to provide health care,” he said, but many are not willing to do so. Instead of spending on drug testing, he suggested, “employers should ensure their health plans cover evidence-based treatment” for opioid abusers and that such employees are not stigmatized.

Some academics also raise questions about the push for testing. “As far as I’m aware, there is no general data, other than pure conjecture, to suggest that drug testing improves workplace safety or productivity,” Frone said. “The little data that do exist are exclusive to commercial drivers, and it is inconclusive.”

“I think we need to err on the side of caution with safety-sensitive jobs, so there is a case for random testing,” he added. “However, before testing in the general workforce, I think reasonable empirical evidence should exist for the claimed benefits of drug testing.”

Safety and Disability Concerns

Employers are concerned that drug-impaired workers in safety-sensitive positions can pose a hazard to themselves, other employees, and third parties such as contractors, Eric E. Hobbs, a shareholder in the Milwaukee office of management-side law firm Ogletree Deakins, told Bloomberg Law April 4. Even employees with legitimate prescriptions for opioids can pose a safety hazard when under the influence, he said, and not all prescriptions are legitimate as abusers engage in “doctor shopping” and “pharmacy shopping” to obtain more than they medically need. Further complicating the problem, some employees with legitimate prescriptions might not even realize the medications they’re taking are opioids, so “education is important,” he said.

Making the safety concern vivid, Simo offered the real-life example of “an overhead crane operator in an ammunition plant,” who obviously must not be under the influence of opioids.

Employment law places “limits on what you can order employees to report” about their prescriptions, Deitchler said. Employers have greater latitude in asking for this information from employees in safety-related positions, he said. Some employers go further and question employees about prescription drug use that in their view interferes with the “essential functions of the job,” but Deitchler said he does not advise this more aggressive approach. Employers may request follow-up with the employee’s prescribing physician, he said.

Hobbs agreed that it’s “a lot easier” to ask questions about an employee’s opioid prescription if that employee is in a safety-related position, but said the distinction does not hold when it comes to illicit opioid use. “No greater leniency is needed for a person doing a non-safety-sensitive job,” he said.

The Americans with Disabilities Act has a limited impact on the opioid abuse issue, Hobbs said, since an employee using these drugs illegally “is not a qualified individual with a disability” under the law. However, an abuser who enters rehab or counseling may be protected, in which case a “very fact-specific” legal analysis would be required, he said. Some state disability laws do protect illegal drug abusers, Hobbs said, so employers need to be aware of those as well.

To contact the reporter on this story: Martin Berman-Gorvine in Washington at mbermangorvine@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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