Executive Summary: On November 13, 2017, the Department of Transportation (DOT) announced that it is amending its drug-testing program to require testing for synthetic opioids. The new DOT regulations now harmonize with the Department of Health and Human Services (HHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine (HHS Mandatory Guidelines), published January 23, 2017.
Background:
The DOT requires urine testing for safety-sensitive transportation industry employees such as pilots, truck drivers, railroad conductors, and many others. While the DOT has discretion concerning many aspects of the regulations governing testing in the transportation industry, it must follow the HHS Mandatory Guidelines for the categories of drugs for which it requires testing. Prior to the amendment, the DOT regulations already required testing for marijuana, cocaine, amphetamines, and phencyclidine (PCP).
A Medical Review Officer (MRO) is responsible for receiving and reviewing laboratory results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results. The MRO must verify a confirmed positive test unless the employee presents a legitimate medical explanation for the presence of the drug, such as a valid prescription.
The DOT issued a Notice of Proposed Rulemaking on January 23, 2017, the same day the HHS updated its Mandatory Guidelines. After receiving comments from the public, the DOT updated the regulations to harmonize with the Mandatory Guidelines by making the following changes:
- Addition of four semi-synthetic opioids to the DOT panel (hydrocodone, hydromorphone, oxycodone, and oxymorphone) and
- Removal of methylenedioxyethylamphetamine (MDEA) as part of a confirmatory test from the existing drug testing panel and the addition of methylenedioxyamphetamine (MDA) as an initial test.
Adding these drugs will allow the DOT to detect a broader range of drugs being used illegally. Some common names for these semi-synthetic opioids include OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid®, and Exalgo®. Many employers with non-DOT testing programs in place already test for these drugs because of their widespread use and potentially impairing effects.
HHS monitors drug abuse trends and reviews information on new drugs of abuse, which led to the new testing requirements. Noting the national concern over the abuse of prescription opioids, the DOT stated, “[t]ransportation industries are not immune to this trend and the safety issues it raises. Consequently, the Department proposed including these substances in its testing panel not only for consistency with the HHS Mandatory Guidelines but as a response to a national problem that can affect transportation safety.”
In 2010, the DOT added a requirement for initial and confirmatory testing for MDMA, and confirmatory testing for MDA and MDEA. MDMA, MDA, and MDEA indicate the presence of the drug known as ecstasy. Initial drug tests are conducted to identify classes of drugs present in the urine. They rely on a set threshold above which a positive result is produced but do not detect lower concentrations of a drug. If a substance is detected, then additional confirmatory tests are conducted. Confirmatory testing can identify a specific drug. HHS determined that the low number of positive MDEA specimens reported did not support testing all specimens for MDEA. However, inclusion of MDA as an initial and confirmatory test substance was still warranted.
The new rules also clarify certain existing drug-testing program provisions and definitions, make technical amendments, and remove the requirement for employers and consortium/third-party administrators to submit blind specimens.
The full text of the final rule can be found here: www.transportation.gov/odapc/frpubs.
Employers’ Bottom Line:
The new rule goes into effect on January 1, 2018. DOT employers should modify their drug testing policies accordingly. Currently, the rules only apply to urine testing, although the HHS has issued a Notice of Proposed Rulemaking to authorize oral fluid testing.
If you have any questions regarding this Alert or related issues, please feel free to contact the author, Jacquelyn Thompson, jthompson@fordharrison.com, who is a counsel in our Washington, DC office. Jacki is a member of FordHarrison’s Airline Industry practice group. You may also contact the FordHarrison attorney with whom you usually work.