PRESCRIPTION DRUGS AND SAFETY WARNINGS—
The Impact for Providers and Employers
BY NINA M. FRENCH AND CHRISTINE M. JENSEN, SPHR® SHRM-SCP, THE CURRENT CONSULTING GROUP
, CWDP,
On January 1, 2018, the Department of Transportation’s (DOT) regulatory updates went into effect. The update covered many aspects of DOT-mandated testing, but most significant was the addition of four semi-synthetic opioids: hydrocodone, hydromorphone, oxycodone, and oxymorphone.
A
long with the panel change, the DOT clarified that the age of a prescription cannot impact the
reversal of a laboratory positive drug test. Te updates to 49 CFR Part 40 (Part 40) require that the Medical Review Officer (MRO) must determine if the “use of the substance can form the basis of a legitimate medical explanation only if it is used consistently with its proper and intended medical purpose.”1 Part 40 further requires the MRO to report medical information gathered in the verification process to employers stating:
a. As the MRO, you must, except as provided in paragraph (c) of this section, report drug test results and medical information you learned as part of the verification process to third parties without the employee’s consent if you determine, in your reasonable medical judgment, that:
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1. Te information is likely to result in the employee being determined to be medically unqualified under an applicable DOT agency regulation; or
2. Te information indicates that continued performance by the employee of his or her safety-sensitive function is likely to pose a significant safety risk.
b. Te third parties to whom you are authorized to provide information by this section include the employer, a physician, or other health care provider responsible for determining the medical qualifications of the employee under an applicable DOT agency safety regulation, a SAP evaluating the employee as part of the return to duty process (see §40.293(g)), a DOT agency, or the National Transportation Safety Board in the course of an accident investigation.2
If the prescribing physician states that
the medication cannot be discontinued or changed to a medication that does not pose significant risk to the performance of safety-sensitive duties, the employee should be removed from safety-sensitive duties and an accommodation provided for non-safety-sensitive duty, if available. However, the employer is not required to
do anything based on Part 40 rule language. In fact, the phrase “safety concern” does not appear in Part 40 or any of the DOT agency regulations. As a practical mater, an employer should
“resolve” a safety concern reported by the MRO as a measure to limit liability for accidents/incidents that may be related to an employee’s unsafe performance of safety- sensitive duties. Te two recommended ways to resolve or address MRO reports of a safety concern are:
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