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A new U.S. Department of Transportation rule that will require employees working in federally regulated industries to be tested for certain semisynthetic opioids is a positive step for both workplace safety and the battle against the opioid epidemic, experts say.
The department’s final rule, published last week, will expand the drug testing panel to test for hydrocodone, hydromorphone, oxymorphone and oxycodone as part of an effort to enhance safety, prevent opioid abuse and combat the nation’s growing opioid epidemic. The department currently requires drug testing of safety-sensitive employees in the transportation industries.
“I think this is a good thing given the prescription painkiller epidemic that we have because there are so many people out there who are using Vicodin and OxyContin and other drugs,” said Kathryn Russo, a Long Island, New York-based principal with Jackson Lewis P.C. “I think this is long overdue. A lot of employers just do what DOT requires them to do — that’s the unfortunate part.”
A survey by the National Safety Council published earlier this year found that about 57% of companies conduct employee drug testing, with 59% of these employers already testing for synthetic opioids.
“I hope that it will propel more employers to do this type of testing,” Tess Benham, senior program manager for the National Safety Council in Itasca, Illinois, said of the DOT’s final rule. “Often the testing that is done (because it’s) required by regulation becomes a minimum standard for companies to implement.”
“We hope that more private-sector employers and those not regulated by DOT will begin to adapt and add these drugs to their drug testing panel,” Ms. Benham added.
The department did not add other synthetic drugs such as fentanyl to its required drug testing panel even though the U.S. Centers for Disease Control and Prevention has issued a warning about the rising overdose death rates for fentanyl and other drugs in its category. Fentanyl is a man-made opioid that is 50 times more potent than heroin and 100 times more potent than morphine, according to the CDC.
Due to the increased use of fentanyl, the council is recommending companies also test for fentanyl in their workplace drug testing programs, she said.
“There are still plenty of drugs that are not covered by DOT’s test panel, but at least they’re trying to catch up a little bit with the prescription pain epidemic by adding these four semisynthetics,” Ms. Russo said.
Employers regulated by the department will be required to test for these highly abused opioids beginning Jan. 1, according to the department’s statement.
Covered employers have been fully aware that the regulation was coming down the pipeline, meaning compliance with the rule should not be a heavy lift for them, according to experts.
“The key thing is that they just need to make sure that they’re working with a drug testing vendor that knows these changes have taken place, because now this is all required by law,” Ms. Russo said.
“I think it’s pretty straightforward,” she added. “It really shouldn’t create much hardship on employers.”
“The most difficult part of this is there is no legal standard for opioid impairment,” said Jacquelyn Thompson, Washington-based counsel with Ford & Harrison L.L.P. “It’s not like when you test positive for alcohol and there’s this cut-off limit that (determines impairment). There is no delineation for employers to look at. That’s a difficulty for them if they do have an employee who tests positive — to be able to determine … if that’s actually impairing them from doing the job.”
Department regulations require covered employers to have written drug and alcohol testing policies, but any discipline for violations is up to the employers, Ms. Russo said. “DOT simply says that if somebody tests positive on a drug or alcohol test, the employer has to make sure that they no longer perform safety-sensitive duties, which is driving for the most part,” she said. “Each employer needs to decide what discipline they are going to impose when a driver tests positive.”
Employers may have employee assistance programs that they can utilize for employees who test positive, and send these employees to treatment programs before imposing discipline, Ms. Thompson said.
“Many employers do have automatic termination policies,” she said. “In a lot of industries that is very acceptable and certainly justifiable. In a lot of these safety-sensitive positions, you do want to make sure those employees are not impaired … for the safety of the employee’s co-workers and the safety of the general public.”
The U.S. Department of Transportation has expanded its current drug testing panel to include certain semisynthetic opioids in testing for industries regulated by the department.