Thank you to attorney Tommy Eden of Constangy, Brooks, Smith & Prophete, LLP for providing this great information for DOT regulated employers. Tommy can be reached at teden@constangy.com.
2018 TO DO LIST FOR DOT EMPLOYERS
On November 13, 2017, the Department of Transportation (DOT) published a final rule in the Federal Register (82 FR 52229) (much of this update is taken from the extremely well written release by ODAPC). 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).
When is the final rule effective?
The final rule is effective January 1, 2018.
What does this mean for employees?
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®, and Exalgo®. In addition, you will no longer be tested for MDEA.
What does this mean for employers and Consortium/Third Party Administrators (C/TPA)?
As an employer or C/TPA, you will no longer be required to submit blind specimens to laboratories.
What does this mean for urine collectors?
The shy bladder process has been modified so that the collector will discard any specimen provided during the collection event when the employee does not provide a sufficient specimen by the end of the three hour wait period.
What does this mean for laboratories?
As an HHS-certified laboratory you will:
- Add four semi-synthetic opioids: hydrocodone, oxycodone, hydromorphone; oxymorphone to your DOT testing panel;
- Add MDA as an initial test analyte;
- Remove testing for MDEA;
- Add three more fatal flaws to the list of reasons when a laboratory would report a ‘rejected for testing’ specimen; and
- Need to modify the reports [in Appendix B & C] you provide to employers and the DOT.
What does this mean for Medical Review Officers (MRO)?
Several of your MRO drug test review processes have been modified. For example:
- The term ‘prescription’ has been clarified to only include a prescription that is legally valid as a Schedule II Drug under the Controlled Substances Act (this would exclude Medically Marijuana under a state law);
- You have authority to conduct D & L stereoisomer and THC-V testing; and
- The timing when you communicate a significant safety risk or medically unqualified decision under 40.327 has been modified. [amended 40.135(e) to add a five business day pause period for the Driver’s prescribing physician to contact the MRO to determine if a non-impairing effect drug/treatment can be prescribed so that the MRO would not be required to make a safety concern or medically disqualified report to the employer].
What does this mean for alcohol technicians?
The list of NHTSA-approved Alcohol Screening Devices and Evidential Breath Testing Devices will appear on ODAPC’s website.
What does this mean for service agents?
- Collectors, alcohol testing technicians, MROs, and Substance Abuse Professionals will be required to subscribe to ODAPC’s list-serve at: https://www.transportation.gov/odapc/ListServe_Notices.
- Unauthorized use of DOT-branded items (such as logos or emblems) on a service agent’s website, publications, etc., could be a basis for the DOT to initiate a Public Interest Exclusion proceeding.
What are some of the other changes to Part 40?
- The DOT added a new section reiterating that, in the DOT testing program, only urine specimens can be collected and analyzed at HHS-certified laboratories.
- The DOT added language further emphasizing the existing DOT prohibition on the use of DNA testing on DOT drug-testing specimens.
- The final rule made minor modifications to certain section headings.
- The final rule moved the list of Substance Abuse Professional certification organizations from the rule text to ODAPC’s website.
- The final rule moved the MIS instructions from Appendix H to ODAPC’s website.
- Outdated compliance dates were removed and links were updated.
- Appendices B, C, D, and H were updated.
Where can I find a copy of the final rule?
You can view the final rule on ODAPC’s web site www.transportation.gov/odapc/frpubs.
2018 To Do List for DOT Employers by Tommy Eden, Partner Constangy, Brooks, Smith & Prophete, LLP
- Educate your managers, supervisors and DOT Drivers on the new 49 CFR Part 40 Regulatory changes;
- Make sure all your DOT Service Agents are making their own changes to accommodate the Part 40 changes;
- Update your DOT Policy Effective 1.1.2018 to reflect these changes, in addition to the changes caused by the DOT Clearinghouse Regulation Changes Effective 1.5.2017;
- Educate your DOT Drivers that effective January 1, 2018, they are subject to being tested for hydrocodone, oxycodone, hydromorphone, oxymorphone and they should now examine all of their prescriptions to see if they contain any of these semi- synthetic opioids prescription drugs. Need help on this, check our Blog Post by Tommy Eden for DOT covered employees.
- Educate your DOT Drivers if they do have such a prescription as listed above, now is the time to visit with their prescribing physician to determine if they can be put on an alternative treatment or medication;
- DOT employers should update their job descriptions to make “the ability to operate in a constant state of alertness, and safe manner” an essential job duty, and also include a pre-duty impairing effects prescription medications safety policy within their DOT Policy (this should also include medical marijuana as an impairing effects substance as well even though it is not acceptable as a legitimate medical excuse under DOT);
- DOT employers should amend their DOT FMCSA Policy to give Drivers fair notice that the DOT Employer under 49 CFR Part 391.11, has the final authority to make fitness for duty disqualification determinations for its FMCSA Drivers.
If you need policy support, or additional information contact Tommy Eden, a Partner with Constangy, Brooks, Smith & Prophete, LLP at teden@constangy.com or Direct: 334-246-2901/ Cell: 205-222-8030. Firm website: www.constangy.com .
