This is a reminder that the U.S. Department of Transportation (DOT) drug testing program will soon require testing for four semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, oxymorphone).  The change is effective January 1, 2018.

What does this mean for the employees?

      Beginning January 1, 2018, in addition to the existing DOT drug testing panel (that includes marijuana, cocaine, amphetamines, phencyclidine (PCP), and opiates), 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®, Exalgo®.

      If you test positive for any of the semi-synthetic opioid drugs, then as with any other drug test result that is confirmed by the laboratory, the Medical Review Officer (MRO) will conduct an interview with you to determine if there is a legitimate medical explanation for the result.  If you have a valid prescription, you should provide it to the MRO, who will determine if the prescription is valid.  If a legitimate medical explanation is established, the MRO will report the result to your employer as a ‘negative’.  If not, the MRO will report the result to your employer as ‘positive’.

      As it has been the requirement in the past, when your employer receives a ‘positive’ drug test result, your employer is to immediately remove you from performing safety-sensitive functions and provide you with a list of qualified Substance Abuse Professionals (SAP) available in your area.  In order to return to performing safety-sensitive functions for any DOT-regulated employer, you must complete the return-to-duty process that will include an evaluation by a SAP, who will require education and/or treatment.  The SAP will determine if you successfully completed the prescribed education and/or treatment.  Before an employer could return you to safety-sensitive work, the employer must get a negative result on a directly observed return-to-duty drug test.  After you return to safety-sensitive work, you must be subject to directly observed follow-up testing for 12-60 months depending on the SAP’s recommendations.

Do I need to tell anyone about my prescribed medications?

      Your employer may have a policy that requires you to report your prescribed medications to them.  So check with your employer.  If your job function has DOT-regulated medical standards (truck/bus driver, airline pilot, mariner), the DOT agency regulation may require you to report your prescribed medications to those who approved your medical qualifications.

What should I tell my prescribing physician?

      If you are taking any prescription medications, consider this to be a reminder to have a conversation with your prescribing physician to discuss your safety-sensitive work.  Be proactive in ensuring that your prescribing physician knows what type of transportation-related safety-sensitive work you currently perform.  For example, don’t just provide a job title but describe your exact job function(s) or ask your employer for a detailed description of your job function that you can give to your prescribing physician.  This is important information for your prescribing physician to consider when deciding whether and what medication to prescribe for you.  It is important for you to know whether your medications could impact your ability to safely perform your transportation-related work.

Will the MRO report my prescribed medication use/medical information to a third party?

     Historically, the DOT’s regulation required the MRO to report your medication use/medical information to a third party (e.g. your employer, health care provider responsible for your medical qualifications, etc.), if the MRO determines in his/her reasonable medical judgement that you may be medically unqualified according to DOT Agency regulations, or if your continued performance is likely to pose a significant safety risk.  The MRO may report this information even if the MRO verifies your drug test result as ‘negative’.

     As of January 1, 2018, prior to the MRO reporting your information to a third party you will have up to five days to have your prescribing physician contact the MRO.  You are responsible for facilitating the contact between the MRO and your prescribing physician.  Your prescribing physician should be willing to state to the MRO that you can safely perform your safety-sensitive functions while taking the medication(s), or consider changing your medication to one that does not make you medically unqualified or does not pose a significant safety risk.

NOTE:   This document informally summarizes some of the effects of recent changes to the Procedures for Transportation Workplace Drug and Alcohol Testing Programs that are important for transportation employees, but it should not be relied upon to determine legal compliance with those procedures.

DOT Office of Drug and Alcohol Policy and Compliance Notice

Recently, the Department of Justice (DOJ) issued guidelines for Federal prosecutors in states that have enacted laws authorizing the use of “medical marijuana.” http://www.justice.gov/opa/documents/medical-marijuana.pdf

We have had several inquiries about whether the DOJ advice to Federal prosecutors regarding pursuing criminal cases will have an impact upon the Department of Transportation’s longstanding regulation about the use of marijuana by safety‐sensitive transportation employees – pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains, and pipeline emergency response personnel, among others.

We want to make it perfectly clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. We will not change our regulated drug testing program based upon these guidelines to Federal prosecutors.

The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

That section states:

§ 40.151 What are MROs prohibited from doing as part of the verification process? As an MRO, you are prohibited from doing the following as part of the verification process: (e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted.)

Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

We want to assure the traveling public that our transportation system is the safest it can possibly be.

(1). I applied for a DOT/NRC-covered job and tested positive. The company won’t hire me and they told me I have to find a SAP/SAE? How do I do this?

The regulation requires the employer to give you the names of qualified SAP's (40.287) .

(2). Do I have to go through a SAP/SAE?

Yes, DOT/NRC requires that an applicant with a DOT/SAE violation must be evaluated by a qualified and trained SAP/SAE. When you apply for another DOT/NRC-covered job, your new employer will have to obtain the SAP reports related to your assessment and successful compliance with the SAP/SAE's recommendations.

(3). What if I arrange for an assessment by someone who is not a SAP/SAE?

An employer cannot accept recommendations from anyone who is not a qualified SAP/SAE.

(4). What if I just go to a treatment center and put myself into treatment?

This is also not permissible under the regulations. DOT/NRC still requires that you go to a SAP/SAE for an evaluation, even though you may have already completed a treatment program. If the SAP/SAE determines that you require a treatment plan other than what you may have had in a treatment center, you will have to comply with the SAP/SAE's recommendation before you can be considered for return to safety-sensitive functions in the transportation/nuclear industry. In order for your record to be complete, your employer’s file must include an assessment by a qualified and trained SAP/SAE, and two SAP/SAE reports (an Initial Evaluation Report and a Follow-Up Evaluation Report indicating that you complied with the SAP/SAE's recommendation.)

(5). What if I just apply to another company?

The regulations don’t allow you to provide safety-sensitive functions for another DOT/NRC employer until and unless you have successfully completed this return-to-duty process. A future DOT/NRC-covered employer is required to obtain your drug and alcohol testing records from your previous employers for the previous two years. (For FMCSA employers, this covers the previous three years. For FAA pilots, this covers the previous five years). Every employer is also required to ask applicants whether they have any positive pre-employment test results, or refusals to be tested. For each violation, you must complete a SAP/SAE return-to-duty process before you can work for any DOT/NRC-covered employer. A previous employer is required to report any violation, and if there is no SAP/SAE report regarding compliance, no employer is permitted to hire you. However, there is nothing preventing you from working for a non-DOT/NRC employer, in which case you don’t have to go through this SAP/SAE process. But if you change your mind in the next two years, and decide to go back to a safety-sensitive function in the transportation industry, you will first have to complete a SAP/SAE return-to-duty process.

(6). What if I just “forget” to tell an employer about this positive pre-employment test?

There is a good chance this will be discovered sometime in the future. Falsification of information is a serious offense, and because this is a federal law, you would be subject to fines and civil penalties. DOT/NRC will hold you responsible under civil penalties if you provide safety-sensitive functions when you know that you have a violation.

(7). Who is going to pay for the cost of my SAP/SAE services?

If you are not currently working, you will have to pay for your SAP/SAE services.

(8). If I have to pay for this, what will this cost?

SAP/SAE services are not inexpensive. A SAP/SAE assessment, monitoring, and follow-up evaluation requires quite a bit of professional time and expertise on the part of the SAP/SAE. In addition, a SAP/SAE has considerable liability, since DOT/NRC considers the SAP/SAE to be ultimately responsible to the traveling public. Don’t expect that the cost of this assessment will be covered by insurance; it usually isn’t. Health insurance covers "medical necessity". A positive drug test involves no medical necessity.

(9). How will I pay for this?

This is a discussion that you should have with a SAP/SAE before you begin the process. Most SAP/SAE's require full payment for these services in advance. If you are not able to get the money together before the first visit, a SAP can decide to not start the evaluation. SAP/SAE's will require payment in cash, credit or debit card.

(10). Will my treatment be covered by my health insurance?

Number one, do you currently have health insurance? Should that not be the case, you will obviously have to cover the treatment costs on your own. Secondly, even if you do have health insurance, there is no guarantee that your treatment costs will be covered. Don’t make any assumptions about this.

(11). What if I can’t afford the plan that the SAP/SAE recommends?

You have no alternative. You must either comply with the recommendation (and find a legal way to pay for it), or secure a different job outside of the transportation industry. DOT/NRC considers the SAP/SAE's recommendation to be final, and no one can change it.

(12). If I don’t agree with the SAP/SAE's recommendation, can I receive a second opinion from another SAP/SAE?

You may think that the SAP/SAE's recommendation is too harsh. Or you may find that the recommendation is not covered by your insurance plan. The rule is very clear about this: You cannot get a second opinion. Once you have begun an evaluation process with a SAP/SAE, you cannot seek the services of a different SAP/SAE. If you were to do that, you would be subject to fines by DOT/NRC. The evaluation of the original SAP/SAE stands.

(13). How long will this process take?

That actually depends on the type of recommendation that your SAP/SAE makes. (If the SAP/SAE recommends an inpatient treatment program, you must complete that program before anything else can happen.) But it also depends on the progress that you make in complying with the SAP/SAE's recommendation. Your SAP/SAE will be monitoring your progress. He/she will be checking regularly with your treatment provider. When your SAP/SAE feels you have made sufficient progress, your SAP/SAE will call you to schedule a clinical follow-up evaluation. In the final analysis, it’s really up to you. If your SAP/SAE feels that you are making little (or no) progress, or that your participation in your program is minimal, the SAP/SAE will probably not set up a follow-up evaluation for you.

(14). What happens next?

When your SAP/SAE conducts a clinical follow-up evaluation and determines that you have complied with the recommendations, your SAP/SAE will prepare a report of compliance. The SAP/SAE will probably keep this report, pending your application to another employer. When your new employer requests this information, the SAP/SAE will forward these reports to your new employer (only after you have signed a written authorization for the SAP/SAE to do so). The pre-employment test that you take for a new employer is actually the same as the return-to-duty test following this SAP/SAE return-to-duty process. In order for you to be hired, you must have a negative pre-employment test result. Should you become hired, you are subject to follow-up testing as required by your SAP/SAE. There must be a minimum of 6 unannounced follow-up tests in the first year; however, the SAP can require any number of tests, and the testing period can extend to five years.

(15). How can I find out what this follow-up testing program will be?

DOT/NRC requires that the follow-up testing schedule (when, how often, and how many years) must be confidential. Neither the SAP/SAE nor your employer is permitted to share this testing plan with you. All the tests will be unannounced. Should a SAP/SAE require you to be tested 20 times in a year, your employer is responsible for seeing to it that all those tests are conducted. Your employer is subject to fines for any tests that are not conducted.

(16). Who pays for these follow-up tests?

This is an employer’s decision. Some employers pay for follow-up testing. Some employers share the cost of the tests with the employee who is being tested. But many employers require the employee to pay for all of those tests, as a consequence of having violated DOT/NRC's rules. It should be specified in your new employer’s policy. Should that not be the case, you may consider asking your new employer about it.

(17). What happens if I test positive on a follow-up test?

If you test positive again, you must go through the entire process again. That includes removal from safety-sensitive functions and a complete SAP/SAE evaluation and return-to-duty process. And the SAP/SAE will be again required to recommend treatment and/or education.

(18). Suppose I don't get a job for a while. Who will do my follow-up testing?

Your follow-up testing program doesn't start until you do find a job. Even if that is a year from now. At that point, whenever it is, your SAP/SAE will send the SAP/SAE reports to your new employer. Your new employer will then conduct a pre-employment test (which will also be your return-to-duty test), and your employer will then be responsible for starting and maintaining your follow-up testing program.

(1). If I am terminating an employee, do I still have to provide the names of Substance Abuse Professionals/Substance Abuse Experts?

Yes, DOT/NRC requires the employer to provide SAP/SAE names regardless of whether the employee is returning to safety-sensitive functions for you. If you are terminating the employee, but the employee intends to apply for another job in the transportation industry, successful completion of the DOT/NRC return-to-duty process is still required, and the employee must receive SAP/SAE information from you, the employer that he/she was working for when the violation occurred.

(2). Do I have to pay for SAP/SAE services?

DOT doesn’t specify who pays for SAP/SAE services. As an employer, you can decide to pay for these services. You can also tell your employees that you are not responsible for paying for SAP/SAE services. (It is advisable to include this in the policy that you write and distribute to your employees, so they understand this in advance.) This decision is up to you.

(3). I need this employee back as soon as possible. How long will this SAP/SAE process take?

Don’t expect this process to be quick. The SAP/SAE must conduct an extensive evaluation, which may require several visits with the employee. The SAP/SAE must then develop a plan for treatment and/or education. After the SAP/SAE determines that the employee has successfully completed that plan, the SAP/SAE must conduct a second evaluation to determine whether the employee has successfully complied with that plan. In some cases this may take several weeks, or possibly even months.

(4). What happens if the employee doesn’t need treatment?

This isn't possible. DOT/NRC rules do not permit a SAP/SAE to determine that an employee needs no treatment or education. The SAP/SAE must make a recommendation for treatment or education or both. The rules do not give the SAP/SAE a choice in this matter.

(5). How do I know that the SAP/SAE I am using knows the rules?

Only trained SAP/SAE's who have passed an exam can provide SAP/SAE services. Each SAP/SAE will enter information about his/her training and exam on the Profile. However, as an employer you are ultimately responsible for ensuring that a SAP/SAE is properly credentialed, trained, and has passed an exam. The regulations give you the authority to request this information from each SAP/SAE that you use. You are encouraged to ask a SAP/SAE to fax or mail copies of his/her training documentation to you, for your files. If the documentation you receive is questionable, you may request additional information, or you may decide to look for a different SAP/SAE.

(6). I've been told that SAP/SAE's need Case Managers to oversee what they are doing. Is this required by the regulation?

The regulation does not mention the use of Case Managers. The practice of SAP/SAE's working under a Case Manager developed in the early days of this regulation, when some SAP/SAE's didn't understand the rules and there was no requirement that they had to be trained. The addition of a Case Manager was important for quality assurance. Assuming a SAP/SAE's training met DOT/NRC's requirements, and the SAP/SAE has the requisite professional skills and qualifications, the SAP/SAE should be able to work independently. However, you may find that you feel more comfortable using a SAP/SAE who provides services under a Case Manager. You may be enjoying a long-term working relationship with a system that includes Case Management. By all means, you may certainly continue that arrangement. This is entirely your decision.

(7). What if I think a SAP/SAE's recommendation is too harsh, or will take too long?

DOT gives full authority to a SAP/SAE to make decisions that are therapeutically appropriate. DOT/NRC also has made it very clear that a SAP/SAE's primary responsibility is not that of getting an employee’s job back, but rather to protect safety of the traveling public. A SAP/SAE's recommendation stands. No one can change it. And an employer (or an employee) is not permitted to seek another assessment from a second SAP/SAE. (This is called “SAP/SAE shopping,” and is specifically prohibited by the regulation. [40.295]

(8). What if I can’t wait for this employee any longer? Can I terminate?

As the employer you may take whatever job action you want to take, considering, of course, any agreements or contracts that are relevant. If you terminate the employee, the employee will be free to seek employment with another DOT/NRC-covered employer, but only if he/she successfully completes the SAP/SAE's recommended plan.

(9). I plan to take this employee back. When can I conduct a return-to-duty test?

The return-to-duty test cannot be conducted until you have received the SAP/SAE's Follow-Up evaluation report that this employee has complied with the recommendation. The return-to-duty test cannot be conducted in advance. [40.305(a)] If you do conduct the test in advance, DOT/NRC will require that the test must be conducted again, just before the employee returns to safety-sensitive duty.

(10). I’m not sure I want to take this employee back. Can I ask the SAP/SAE for his/her opinion?

No, you can’t ask the SAP/SAE to help you with this decision. As the employer, the decision about taking an employee back is yours alone. The SAP/SAE is required to report to you only that the employee has or has not complied with the recommendation. At that point it is entirely up to you. [40.305(c)]

(11). The reports that I received from the SAP/SAE don’t give me much information. Can I get more?

No, you can’t. The regulations specify exactly what a SAP/SAE must put into a report. [40.311] Most of the information relates to the employee and where he/she works. However, the Initial Evaluation Report must include the SAP/SAE's recommended plan for treatment, and the Follow-Up Evaluation must include the SAP/SAE's clinical determinations related to compliance or non-compliance. If the employee complied, the SAP/SAE's report must also include a required follow-up testing plan. You may be putting the SAP/SAE in a position of liability if you ask the SAP/SAE to provide more information than is permitted by the regulations.