Page 90 - Occupational Health & Safety, June 2018

D r u g & A l c o h o l Te s t i n g
Prescription Drugs and Safety Warnings: The Impact for Providers and Employers
Employers can and should test employees for illegal prescription drug use and illicit drug abuse.
BY NINA M. FRENCH AND CHRISTINE M. JENSEN
This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein. Reprinted in partnership with the Drug & Alcohol Testing Industry Association/ DATIA focus, an industry association representing the
Ofull aspect of drug free and safe workplaces. datia.org
n Jan. 1, 2018, the Department of Trans- portation’s (DOT) regulatory updates went into effect. The updates covered many aspects of DOT mandated testing,
but most significant was the addition of four semi- synthetic opioids, hydrocodone, hydromorphone, oxycodone, and oxymorphone. Along with the panel change, DOT clarified that the age of a prescription cannot impact the reversal of a laboratory positive drug test. The updates to 49 CFR Part 40 (Part 40) require that the Medical Review Officer (MRO) must determine whether the “use of the substance can form the basis of a legitimate medical explanation only if it is used consistently with its proper and intended medical purpose.”1 Part 40 further requires the MRO to report medical information gathered in the verifi- cation process to employers:
“(a) As the MRO, you must, except as provided in paragraph (c) of this section, report drug test re- sults and medical information you learned as part of the verification process to third parties without the employee’s consent if you determine, in your reasonable medical judgment, that:
(1) The information is likely to result in the employee being determined to be medically unqualified under an applicable DOT agency regulation; or
(2) The information indicates that continued performance by the employee of his or her safety-sensitive function is likely to pose a sig- nificant safety risk.
(b) The third parties to whom you are authorized to provide information by this section include the employer, a physician or other health care pro- vider responsible for determining the medical qualifications of the employee under an applicable DOT agency safety regulation, a SAP evaluating the employee as part of the return to duty process
(see §40.293(g)), a DOT agency, or the National Transportation Safety Board in the course of an accident investigation.”2
If the prescribing physician states that the medica-
tion cannot be discontinued or changed to a medica- tion that does not pose significant risk to the perfor- mance of safety-sensitive duties, the employee should be removed from safety-sensitive duties and an ac- commodation provided for non-safety-sensitive duty, if available.
However, the employer is not required to do anything based on Part 40 rule language. In fact, the phrase “safety concern” does not appear in Part 40 or any of the DOT agency regulations.
As a practical matter, an employer should “resolve” a safety concern reported by the MRO as a measure to limit liability for accidents/incidents that may be related to an employee’s unsafe performance of safety- sensitive duties. The two recommended ways to re- solve or address MRO reports of a safety concern are:
■ Obtain a statement from the employee’s pre- scribing physician that the medications of concern have been discontinued, the employee is no longer medically authorized to use them, the prescribing physician has changed the prescription to a medica- tion that does not adversely impact safety, or, in the physician’s medical judgment, the employee can safely perform safety-sensitive duties while taking the medi- cation as prescribed.
■ Have the employee evaluated by an occupa- tional medicine physician, familiar with the employ- ee’s job duties, to determine whether the employee can safely perform his/her safety-sensitive duties.
If an employee has a DOT medical qualification requirement (e.g., commercial driver DOT physical), the employer may alternately require the employee to submit to another medical qualfification examina- tion by a Federal Motor Carrier Safety Administration (FMCSA) certified medical examiner to determine whether the driver remains medically qualified.
Now, more than ever, clearly defined policies and procedures are critical for employers. The policy de- cision must consider DOT fitness for duty as well as the possible accommodations that an employer can make in these instances. But, in a time when pre-
86 Occupational Health & Safety | JUNE 2018
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