New opioid testing requires review of drug policies

By Bob Crescenzo

In response to the nation’s opioid epidemic, the U.S. Department of Transportation has issued new Part 40 drug testing regulations and published a guidance to assist employers with updating their testing policies. The changes take effect Jan. 1.

While the rule includes some technical procedural changes, such as no longer requiring blind sample/specimen testing, the major change affecting transportation companies pertains to opioid testing.

This article focuses on that issue and provides some suggested best practices. Company management should contact its drug-testing consortium, Medical Review Officer (MRO) or other provider, and consider seeking legal advice to integrate these changes into its substance abuse testing policy and procedures.

Currently, one of the five drug types screened for in a USDOT drug test is opiates. The new rule amends the drug-testing program requirements by adding four semi-synthetic opioids to the drug-testing panel. These opioids, which are often prescribed by a physician for pain management, are hydrocodone, hydromorphone, oxymorphone and oxycodone.

The more commonly known trademarked brand names for these drugs include OxyContin, Percodan, Percocet, Vicodin, Lortab, Dilaudid and Exalgo.

Focusing on the regulatory changes regarding opioids, it is important to note that the MRO will continue to make the decision whether a test is positive or negative after providing the tested employee the opportunity to document the appropriate use of properly prescribed medications.

The expansion of opioid testing likely will impact employees, MROs and operators because there previously was no way to determine which opioid was being used. It may also be assumed that there will be a significant jump in lab positive results due to the increased number of opioids subject to the testing protocol.

Lab positive results are the lab results with quantification analysis that are sent to the MRO, not to the operator. The MRO review process requires the MRO to communicate with the employee to inquire about prescription use, as well as determine whether, if a prescription exists, it is being used properly.

The final rule also added methylenedioxyamphetamine (MDA) to the amphetamine analysis and removed methylenedioxyethylamphetaime (MDEA). This is mainly due to changes in the substances currently found in amphetamines. As such, employees will no longer be tested for MDEA.

Moreover, the rule adds three reasons for a “fatal flaw” when a laboratory will reject and discard a specimen, and modifies the “shy bladder” process so that the collector will discard certain questionable specimens and proceed under the shy bladder process for the second specimen.

In light of these changes to the Part 40 drug-testing regulations, there are several “best practices” to consider before the January 1 implementation date, including:

  1. Review and revise your substance abuse policy and procedures. This can be done with your consortium, MRO or labor attorney, with a focus on updating the drugs subjected to testing and how the MRO review is communicated to employees.
  2. Update your employee substance abuse and training programs. Communicate to all employees that the four semi-synthetic opioids will now be subject to testing and remind them to work with their physician before these drugs are prescribed. Additionally, stress to employees the importance of managing their driving responsibilities while taking any prescription or over-the-counter medications.
  3. Examine additional interaction opportunities between the employee, MRO, prescribing physician and the company Designated Employer Representative (DER).

It should also be noted that the MRO review process might result in a negative test. However, the MRO has the responsibility to determine whether the prescribed opioid will “disqualify” the driver, or if continued performance (driving) could likely pose a safety risk.      Even after a test is reported as negative, the MRO and employee have an additional five days to review and process the information discussed during the MRO review process.

One possible problem that might arise as a result is when a negative test result is reported, the driver continues to drive (appropriately) and then, up to five days later, the MRO reports to the DER that the driver might pose a safety risk. Furthermore, companies might employ drivers who are prescribed opioids, but are not selected for a random drug test or do not require a post-accident or reasonable suspicion test.

In order to help avoid problems under such scenarios, consider taking the following additional steps:

  1. Identify a designated Medical Examiner (ME).
  2. Set up a procedure for employees (drivers) to report the use of prescribed opioids to the company’s designated ME, and have the driver cleared by that medical professional.
  3. Establish a procedure that refers drivers to the ME when, after a negative drug test, the company is informed that they might pose a safety risk.

Despite receiving negative drug tests, being informed by MROs that drivers might pose a safety risk could create situations where inaction is not a good option. It’s prudent to have those drivers cleared by the ME to help mitigate the risk.

The best practices presented here are provided as suggestions for consideration. But, clearly, taking action now could smooth the transition to these new regulations and help you manage your operation more safely, efficiently and within compliance.

Bob Crescenzo is vice president of Lancer Insurance Company, the nation’s No. 1 bus and motorcoach insurer.

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