year in which unintentional workplace overdose deaths have increased by 25% according to the BLS fatality data.”12 One study found that the injury rate


for construction workers is 77% higher than the national average and that 15% of construction workers struggle with substance abuse.13


Te New York Times


reported in 2012 that this results in “workplace insurers” spending an estimated $1.4 billion annually on narcotic painkillers. Tis can result in significant delays in injured workers geting back to work. As noted in the publication Spine, those receiving early pain medication on average experience 69 days longer to return to work and are three times more likely to have surgery.14 A study released in August 2018 that


focused on the Midwest construction industry found that nearly 1,000 construction workers died from opioid overdosed in 2015 (see chart) and that the opioid epidemic had resulted in costs of $1.5 billion. • Illinois: $867 million • Indiana: $450 million • Iowa: $168 million • Michigan: $858 million • Minnesota: $292 million • Ohio: $2 billion • Wisconsin: $524 million


Tis opioid issue goes far beyond just


the Midwest; alarming use, abuse and overdose stats can be found between all four corners of our great country and most industry sectors are affected. One of many studies by Quest Diagnostics15 showed drug misuse rates remain constant at high levels, and dangerous opioid- related drug combining was prevalent in 2017. More than half of Americans tested misused their prescription drugs, and drug mixing is the most frequent form of misuse, with one-in-five test results showing concurrent use of opioids and benzodiazepines in 2017. Quest Diagnostics also provides an interactive map of “Opiate Positivity by Zip Code.”16


www.datia.org


Workplace Response Many employers are recognizing the serious problem with opioids in the workplace and are beginning to respond.17


Employer


responses include adding synthetic and semi-synthetic opioids to their test panels and requiring employees to report medications they are taking. Such responses can cause problems under the Americans with Disabilities Act (ADA) and state disability discrimination rules. Let’s first look at the federal response and then how private, non- regulated employers are addressing the issue.


Federal Department of Transportation (DOT)


On January 1, 2018, new DOT rules became effective. In part, these new rules added four additional substances—synthetic opioids—to the test panel. Tese include Schedule II prescription medications: hydrocodone, hydromorphone, oxycodone, and oxymorphone. On November 13, 2017, when the Final


Rule was announced in the Federal Register,18 the Office of the Secretary of Transportation (OST) explained that synthetic opioids were required to be added to the required test panel in order to harmonize its rules with the Department of Health and Human Services (HHS). However, the OST also explained, “Inclusion of these four semi-synthetic opioids is intended to help address the nationwide epidemic of opioid abuse.”19 Te addition of these synthetic


opioids raised questions about handling prescriptions. DOT addressed these questions by making several key adjustments to the MRO’s role.


The MRO’s Role Te medical review officer (MRO) performs a critical function in workplace drug testing programs. Te MRO receives, reviews, and interprets laboratory results. Te MRO is essentially a “gatekeeper”20


between


laboratory results and the employee. In programs without an MRO, applicants and employees could be falsely accused of using


54 92 160 32 164 83 380


illegal drugs when in fact legally prescribed drugs caused the laboratory result. Tis could lead to litigation. In quality workplace drug testing


programs, there is no test result until the MRO says there is. Te MRO’s key function has become all the more important with the opioid epidemic, now in its thirteenth year.21 Te substantive adjustments that DOT


made related to synthetic and semi- synthetic opioids include: 1. Te term prescription: §40.141(b) now uses the language: “. . . prescription medi- cation (i.e., a legally valid prescription con- sistent with the Controlled Substances Act . . .” For example, marijuana is a Schedule I drug and is therefore not legally pre- scribed (no valid medical purpose). Over- the-counter medications, oſten addressed in employer programs, are not covered since they, too, are not consistent with the Controlled Substances Act.22


2. A MRO cannot second guess the prescribing healthcare professional: §40.137(a) now states in part . . .


“In determining whether an employee’s legally valid prescription consistent with the Controlled Substances Act for a substance in these categories constitutes a legitimate medical explanation, you must not question whether the


datia focus 39


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