WASHINGTON REPORT BY TAMIKA CARTER, DATIA
Hair & Oral Fluid Testing Moves Forward in New Opioid Act
In October 2018, President Trump signed into law the “Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act” also known as the “Support for Patients and Communities Act.” Te Act addresses the opioid crisis by reducing access to opioids and the supply of opioids as well as by expanding access to prevention, treatment, and recovery services. Te new law: • Required HHS to publish a final rule by December 31, 2018, of the Mandatory Guidelines for Workplace Drug Testing Programs using oral fluid, based on the proposed notice published in the May 15, 2015, Federal Register.
• Requires Health and Human Services (HHS) to establish hair testing guidelines and provide an initial status update annually until a final rule is published.
• Requires HHS to ensure that each certified laboratory that requests approval for the use of completely paperless electronic Federal Drug Testing Custody and Control Forms (eCCFs) from the National Laboratory Certification Program’s Electronic CCF system receives approval.
• Requires the Secretary of Transportation to establish and make publicly available on its website by March 31, 2019, and update annually, a database of the drug and alcohol testing data reported by employers for each mode of transportation. Te database shall include, for each mode of transportation, the total number of drug and alcohol tests by type of substance tested, the drug and alcohol test results by type of substance tested, the reason for the drug or alcohol test, and the number of individuals who refused testing.
• Requires HHS to determine whether a revision of the Mandatory Guidelines
34 datia focus
for Federal Workplace Drug Testing Programs to include fentanyl or any other Schedule I or II drug is justified, based on the reliability and cost-effectiveness of available testing; and if justified, publish a final notice revising the guidelines within 18 months of determination.
• Requires the Administrator of the Federal Motor Carrier Safety Administration to annually, until implementation, submit a status report on implementation of the final rule for the Commercial Driver’s License Drug and Alcohol Clearinghouse.
Te act also sets out initiatives to expand
recovery centers, curb drug shipments, liſt opioid treatment restrictions, allow new painkiller research, and expand Medicare coverage for opioid treatment, among other things. To view the law in its entirety, visit htps://
www.congress.gov/115/bills/hr6/ BILLS-115hr6enr.pdf.
New Memo Clarifies OSHA Stance on Post- Incident Drug Testing
Te Occupational Safety and Health Administration (OSHA) issued a memorandum clarifying the agency’s position that its May 2016 final rule, 29 C.F.R. § 1904.35(b)(1)(iv), which prohibits employer retaliation against employees for reporting work-related injuries or illnesses, does not prohibit workplace safety incentive programs or post-incident drug testing. Trough the guidance, the agency clarifies that it believes that many employers who implement safety incentive programs and/ or conduct post-incident drug testing do so to promote workplace safety and health. It further states that action taken under a safety incentive program or post-incident drug testing policy would only violate OSHA’s anti-retaliation rule if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of
promoting workplace safety and health. Te memo also states that most instances of workplace drug testing are permissible. Previously, OSHA indicated that
employers could not use “drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.” Instead, employers were limited to drug testing when there was a “reasonable possibility” that drugs or alcohol contributed to the accident or injury. For specific examples of permissible drug testing or for more information, view the memorandum in its entirety, and be sure to share it with your clients who may be uncertain about OSHA’s position on post-incident drug testing. To view the memorandum in its entirety,
visit htps://
www.osha.gov/laws-regs/ standardinterpretations/2018-10-11.
2019 DOT Random Testing Rates Announced
All Department of Transportation (DOT) modal agencies have announced their 2019 random drug and alcohol testing rates. Te 2019 rates are: • FMCSA—25% Drug, 10% Alcohol • PMHSA—50% Drug, N/A Alcohol • FAA—25% Drug, 10% Alcohol • FTA—50% Drug, 10% Alcohol • USCG—50% Drug, N/A Alcohol • FR 25% Drug, 10% Alcohol— ** Maintenance of Way Employees (MOW) Rates—50% Drug, 25% Alcohol
For a complete summary of all DOT
random testing rates, visit the DOT website. htps://
www.transportation.gov/ odapc/random-testing-rates
Epidiolex Placed in Schedule V of Controlled Substance Act
Te Department of Justice and the Drug Enforcement Administration recently announced that Epidiolex, a newly approved medication by the Food and Drug Administration, is being placed in Schedule V of the Controlled Substances Act. Epidiolex,
winter 2019
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48
