Page 88 - Occupational Health & Safety, June 2019

E m p l o y e e D r u g & A l c o h o l Te s t i n g
The MRO then contacts the dispens- ing pharmacist to obtain proof that the prescription was legally dispensed to the employee. If the MRO is suspicious of the situation, the Department of Transporta- tion encourages him or her to contact the employee’s licensed, reporting physician.
In this function of their role, MROs are verifying the honesty of the employee’s claim. If it is found to be accurate, the MRO reports the test result as Negative. If the MRO cannot verify the employee’s claim, the test result will report as Positive. Regard- less of the finding, the written test result will include a statement from the MRO such as, “interview conducted” or “interview con- ducted, and documentation processed.”
In a few instances, the employee has the opportunity to provide the MRO with the information requested after the MRO has issued a Positive test result. This scenario often applies to post-accident testing where the employee suffered significant injury, re- quiring immediate medical intervention to include pain management. The legitimate medical explanation from the hospital was not readily available to the MRO when the initial verified drug test result was issued. The MRO may take in the new evidence, within 60 days of the original verification in- terview, and change the test result to Nega- tive. If the documentation is provided more than 60 days from the original interview, the MRO is required to consult with ODAPC prior to changing the result.
Another scenario the MRO is increas- ingly faced with is an employee whose drug test result is positive for marijuana, leading to a claim that the employee holds a state license to use medical marijuana. Although some states have legalized the use of mari- juana for specific underlying medical con- ditions, following a licensed physician’s rec- ommendation, DOT excluded this claim as a valid medical explanation for transporta- tion employees. DOT issued a 2009 memo, further clarified in a 2016 ODAPC Medi- cal Marijuana Notice,7 on the premise that marijuana remains a Schedule I listed drug of the Controlled Substances Act, meaning:
a) The drug or other substance has a high potential for abuse.
b) The drug or other substance has no currently accepted medical use in treat- ment in the United States.
c) There is a lack of accepted safety for use of the drug or other substance under medical supervision.
Regardless whether the MRO is re- viewing a test result for a DOT-mandated employee or a non-DOT employee, the approach remains the same, as the MRO is governed under the U.S. DOT federal guide- lines. The bottom line is a Schedule I listed drug can’t be prescribed by a physician.
Is an MRO Granted
Certain Protections?
Through its regulations, the federal govern- ment offers special consideration to MROs who are providing a valuable service. After all, MROs play a key role in maintaining workplace health and safety throughout the country.
MROs carrying out verification duties are exempt from the Health Insurance Por- tability and Accountability Act, a fact DOT clarified in a 2012 memo.8 In it, the agency stated that Medical Review Officers “do not need and must not attempt to obtain an employee’s permission in order to confer with prescribing physicians.”
This means MROs do not need written authorization to contact an employee’s re- porting physician or issuing pharmacist to confirm a claim of medical explanation for a positive drug test result. This is a signifi- cant legal exemption of the federal medical privacy law that is provided to MROs.
However—if you can forgive the Spider- Man pun—with great power comes great responsibility. With the exemption from HIPAA for the express purpose of verifying a medical explanation for a positive drug result, MROs maintain responsibility for protecting the privacy of employees’ per- sonal medical information.
In certain cases, an MRO must evalu- ate whether a legally prescribed medication may cause an employee to be unfit to per- form certain tasks required of their job. A physician who prescribed painkillers for a FMCSA driver with legitimate chronic hip pain may not have realized the full extent of how the medication could interfere with his or her work duties.
The MRO is to advise the employee during the verification interview that if they have reason to believe the legally pre- scribed drug impacts his or her ability to
perform safety-sensitive duties, they are required to take action. According to 49 CFR, Part 40.135(c), the MRO is to allow five days for the employee to have his or her prescribing physician contact the MRO to discuss other options to the medication currently prescribed.
After the conversation—or if the MRO cannot make contact with a pre- scribing physician—or if the employee declines the MRO’s request to have the treating physician call, the MRO may legally9 inform the person’s employer of the situation. At that point, the employer will need to decide whether to keep the FMSCA driver on the job, having been alerted to the potential fitness-for-duty risk by the certified MRO.
Is an MRO Necessary?
An MRO is a required service agent for all agencies regulated by the DOT. They are not mandatory for non-DOT employees, however, an MRO review affords the em- ployer greater legal protection at a critical time, when assessing liability. It is consid- ered a best practice to utilize an MRO for all laboratory-based drug test results so that all employees are afforded a non-bi- ased, clinical, and professional assessment by a licensed physician.
Nicole Nance is the CEO of Timely Testing, founded in 2013. Started in Fernley, Nev., with the owners and one part-time employ- ee, Timely Testing now operates statewide with a dozen employees.
REFERENCES
1. https:///www.mrocc.org/courses.cfm
2. https://acoem.org/
3. https://www.aocopm.org/
4. https://www.samhsa.gov/workplace/ resources/drug-testing/certified-lab-list
5. https://www.transportation.gov/odapc/mro 6. https://content.govdelivery.com/accounts/
USDOT/bulletins/d2a5d0
7. https://transit-safety.fta.dot.gov/DrugAndAl- cohol/Regulations/Interpretations/MedicalMari- juana/Default.aspx
8. https://content.govdelivery.com/bulletins/ gd/USDOT-27c2ef
9. https://cms.dot.gov/sites/dot.gov/ files/docs/resources/partners/drug-and- alcohol-testing/323456/january-2018-part- 40-questions-and-answers.pdf
84 Occupational Health & Safety | JUNE 2019
www.ohsonline.com