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New Rule – DOT Covered Employees

Standing Firm: Marijuana Workplace Solutions in Light of CT Decision

Last updated on July 15th, 2020 at 02:08 pm

Thank you to attorney Tommy Eden of Constangy, Brooks, Smith & Prophete, LLP for providing this great information for DOT regulated employees.  Tommy can be reached at [email protected]

NOTICE TO DOT REGULATED EMPLOYEES OF NEW TESTING PANEL

On November 13, 2017, the Department of Transportation (DOT) published a final rule in the Federal Register (82 FR 52229 The rule, among other items, added four semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, oxymorphone) to the testing panel for all DOT regulated employees including FMCSA, PHMSA, FAA, USCG, FRA and FTA. It also added methylenedioxyamphetamine (MDA) as an initial test analyte and removed the testing for methylenedioxyethylamphetaime (MDEA).

Q: When is the final rule effective?

A: The final rule is effective January 1, 2018.

Q: What does this mean for employees?

A: In addition to DOT 5 panel, you will also be tested for four semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, oxymorphone). Some common names for these semi- synthetic opioids include OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid®, Exalgo®.  In addition, you will no longer be tested for MDEA.

Q: Where can I find the new Regulations?

A: You can view the final rule on ODAPC’s web site https://www.transportation.gov/odapc/frpubs

2018 To Do List for DOT Employees

1. Effective January 1, 2018, DOT Regulated employees are subject to being tested for hydrocodone, oxycodone, hydromorphone, oxymorphone so the time is now to examine all of your prescriptions, and over the counter medications, to see if they contain any of these semi-synthetic opioids prescription drug, or state on the warning labels “do not drive or operate machinery or may cause drowsiness” – your pharmacist should be able to guide you if you have questions;

2. If you do have such a prescription as listed above, now is the time to visit with your prescribing physician to determine if they can put you on an alternative treatment or medication that does not render you as the DOT regulated employee medically unqualified under an applicable DOT agency regulation or is likely to pose a significant safety risk, so as to trigger a reporting obligation by the MRO to your employer;

3. The DOT Comments to the Regulations gives helpful guidance to the MRO, DOT employee and prescribing physician on opioids prescriptions:

  • Under § 40.327, an MRO must report drug test results and medical information the MRO learns as part of the verification process to third parties without the employee’s consent if the MRO determines, in his or her reasonable medical judgement, that either of two concerns is triggered. First, the MRO is required to disclose to third parties information when the information obtained during the verification interview is likely to render the employee medically unqualified under an applicable DOT agency regulation (e.g., a fitness for duty requirement). Second, the MRO must report the information to third parties if the ‘‘information indicates that continued performance by the employee of his or her safety- sensitive function is likely to pose a significant safety risk.’’ To ensure that the employee is not caught by surprise by an MRO’s decision to report the medical information regarding a legally valid prescription to a third party, we have amended § 40.135(e). Specifically, we will direct the MRO to first provide the employee with up to five business days after the reporting the verified negative result to have the prescribing physician contact the MRO to determine if the medication(s) can be changed to one that does not make the employee medically unqualified or that does not pose a significant safety risk before reporting the safety concern. If the MRO does not receive such information from the prescribing physician, the MRO would then report to third parties as provided in § 40.327. Although we are creating a pause before the MRO reports the information so that the employee can have time to communicate with the employee’s own physician, the part 40 requirement for the MRO to report the downgraded test result as a verified negative immediately remains unchanged. With this final rule, the employer will receive a negative result first and medical information, if necessary, will come later. There may be cases where the MRO is contacted by the employee’s physician before the end of the five days, but the communication between the doctors does not alleviate the significant safety risk that the MRO has identified. In such cases, the MRO can report the medical information to third parties after the discussion with the employee’s physician; the MRO is not required to allow five days to elapse.

4. Proactively dealing with the issues before being called for DOT testing is highly desirable to prevent potential job disqualification, being temporally removed from your position or potential job loss for the DOT regulated employee.

5. It is also a good time for you make sure all your prescriptions are up to date and current. Any prescriptions past their expiration date may not be accepted by the MRO as a valid current prescription, so as to constitute a valid medical excuse under DOT regulations.