What You Need to Know About the New Department of Transportation (DOT) Ruling Taking Effect January 1st 2018

Posted: December 11, 2017

The Department of Transportation (DOT) recently published a final rule in the Federal Register (82 FR 52229) which impacts all DOT regulated employers. The changes go into effect on January 1st 2018 and all DOT agencies, which includes the below:
  • Federal Transit Administration – FTA
  • Federal Motor Carrier Safety Administration – FMCSA
  • Federal Aviation Administration – FAA
  • Pipeline and Hazardous Materials Safety Administration – PHMSA
  • Federal Railroad Administration – FRA
  • United States Coast Guard – USCG
The purpose of the changes required by the new rule is in response to the growing concerns around opioid abuse and overdoes. You may have read our recent blog post reviewing the opioid epidemic and how employers can take action in their workplace to help ensure the health and safety of their employees. On October 26th, the U.S. Department of Health and Human Services (HHS) Acting Secretary declared a public health emergency to address the national opioid crisis. This is DOT’s effort to combat the opioid epidemic, particularly for individuals that are in safety-sensitive positions that are regulated by DOT. Secretary Elaine L. Chao explained: “The ability to test for a broader range of opioids will advance transportation safety significantly and provide another deterrence to opioid abuse, which will better protect the public and ultimately save lives.” According to a recent study from Columbia University’s Mailman School of Public Health, fatally injured drivers who tested positive for prescription opioids rose seven times, from 1% in 1995 to over 7% in 2015.   What is being added to the new ruling? Starting January 1st 2018 the DOT drug panel will now include screening for the following semi-synthetic opioids:
  • Hydrocodone
  • Oxycodone
  • Hydromorphone
  • Oxymorphone
Adding these semi-synthetic opioids is intended to help address the nationwide epidemic of opioid abuse. This will also help DOT to detect a broader range of drugs being used illegally. The DOT will also be adding methylenedioxyamphetamine (“MDA”) as an initial test analyte. MDA is considered a drug of abuse and is also a metabolite of methylenedioxyethylamphetaime (“MDEA”) and methylenedioxymethamphetamine (“MDMA”). MDEA will be removed from the initial test. While MDA has a low incidence of testing positive, it is believed that continued testing for this analyte is warranted in a deterrent program. While the panel will include a number of potential substances, DOT will still refer to the updated drug panel as a 5 panel but opiates is being changed to opioids. Results will report out as a 5 panel test. The panel will continue to include heroin, morphine and codeine, and will also expand into the four semi-synthetic substances.   What if an individual has a valid prescription? While many of us are familiar with the news surrounding the opioid epidemic, we may not all understand which prescription names fall under the opioid category. Below are a few examples of the more common brand names:
  • OxyContin
  • Percodan
  • Percocet
  • Vicodin
  • Lortab
  • Norco
  • Dilaudid
  • Exalgo
Though opioids can be dangerous when abused, many patients are prescribed the medications by their physicians in order to manage severe pain. DOT regulations will still permit a drug test donor to provide a legitimate medical explanation for the presence of drugs in their system. The Medical Review Officer (MRO) is not permitted to question whether the prescribing physician should have prescribed the substance. As always, if an individual has a non-negative result, during the interview with the MRO they will have the opportunity indicate if they have a prescription for the substance. If they have a prescription, the individual will be asked to provide the phone number for the pharmacy that filled it (no photos of the prescription will be permitted). If the MRO is able to validate the prescription with the pharmacy, the test result will not be considered a positive test and would report out to the employer or potential employer as a verified negative. However, if the MRO notices an abnormal amount of the substance present in the donor’s specimen, even with a valid prescription, the MRO will likely want to ask more questions and could this could potentially result in a positive drug test. Due to the rise in opioids addition it is highly recommend that individuals follow their medication instructions from their doctor. The donor will have has 5 business days after the verified negative result is reported to have the prescribing physician contact the MRO. The MRO and prescribing physician will determine if the medication(s) can be changed to one that does not pose significant safety risk and/or make the employee medically unqualified. After 5 days, the MRO will report the safety concern if there is one. The MRO will send any safety concerns to the employer or third party administrator (TPA) after speaking with the individual’s prescribing physician.   Other changes and employer action In addition to the make-up of the panel, it is now required that any service agents or TPA’s that learn that a direct observation collection should have been collected, but was not, notify the employer or potential employer directly. The employee will have an immediate recollection under direct observation. Previously, this requirement applied only to collectors. The DOT custody and control form (CCF) will include changes in Step 1D and Step 5A. Employers may use the old CCFs until June 30, 2018. If old CCFs are used after June 30, 2018 a memorandum must be completed for the records per §40.205(b)(2). PHMSA will be modifying their random drug testing requirement to 50% from 25% as of January 2018 as well. Other random percentages could go up depending on the positivity rate of the new semi-synthetic drugs being added to the DOT panel. It is recommended by DOT Agencies and U.S. Coast Guard that employers provide written notice to employees about your updated DOT policies. Also, be prepared with a process in the event you are notified that one of your employees are a safety risk due to a prescription medication. As always, seek legal counsel before making any changes to your employment policy. Contact us today for additional information on DOT and Non-DOT drug testing that takes into consideration opioids, as well as other screening solutions that help to promote a healthy and safe work environment.