It’s time to stop pointing fingers and start looking at solutions to make a difference in the lives of opioid users in your workplace.
prescribing physician should have prescribed the substance.”
Tis, according to DOT, takes
the “second-guessing” out of the review process.
3. Safety Issue (“5-day pause”): What is not allowed with the “second-guessing” issue in §40.137(a) is now addressed in the combined authority of the MRO provided in §40.135 and §40.327. If a legally valid prescription exists
and explains the laboratory result, the MRO must report that result as negative. If the MRO has concerns about the employee’s use of that prescribed medicine and performing safety-sensitive tasks, the MRO is directed by §40.135(e) to provide the employee with up to five business days aſter reporting the verified negative result to the employer to have the prescribing physician contact the MRO “to determine if the medication(s) can be changed to one that does not make the employee medically unqualified or that does not pose a significant safety risk before reporting the safety concern.” Tis allows the MRO to report
the negative result first and then, if necessary, report a safety issue. But the MRO’s obligation under §40.327 remains. Under this section, an MRO reports drug test results and medical information the MRO learns as part of the verification process without the employee’s consent if the MRO believes, in his or her reasonable medical judgment, that either of two concerns is triggered: 1. Te MRO is required to disclose information to the employer when the information obtained during the verification interview is likely to render the employee medically un- qualified under an applicable DOT agency regulation (e.g., a fitness for duty requirement), or
40 datia focus
2. Te MRO must report the informa- tion to the employer if the ‘‘informa- tion indicates that continued perfor- mance by the employee of his or her safety-sensitive function is likely to pose a significant safety risk.’’
The Non-Regulated Private Workplace
Private employers not subject to federal regulations face other challenges in response to this epidemic. It has become very clear that employers are struggling to react as shown in a 2017 study, conducted by the National Safety Council,23
that highlighted:
• More than 70% of employers have been impacted by prescription drugs.
• 19% feel extremely prepared to deal with prescription drug misuse.
• 76% are not offering training on how to identify signs of misuse.
• 81% lack a comprehensive drug-free workplace policy.
• 41% of those who drug test all employees are not testing for synthetic opioids.
• Encouragingly, 70% would like to help employees return to work following appropriate treatment.
But private, non-regulated employers
must take care how they react to these challenges. In addition to the estimated costs of the epidemic itself, inappropriate responses to the crisis could be costly. Two seemingly logical responses that
employers are making can create problems. Employers are adding substances to their test panels without first determining if that is appropriate, and they are requiring all employees to report medications they are taking, which may violate the ADA and state disability discrimination laws.
1. Test Panel: Will switching from a five-panel to a twelve- panel help address this problem? Perhaps, but employers must first determine if doing so is allowed under the ADA.
Te ADA provides . . . 42 U.S.C. §12114(d)(1) provides:
spring 2019
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