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The Opioid Epidemic and Employer Drug Testing

As Published in the December, 2017 Issue of the PELRAS Newsletter

Published on: Wed 6th Dec, 2017 By: Julie Aquino

In order to address the nationwide epidemic of prescription painkiller abuse, the U.S. Department of Transportation (“DOT”) announced last month that it will issue a final rule expanding its drug test panel for drivers of commercial motor vehicles to include the following four semi-synthetic opioid drugs: (1) hydrocodone, (2) hydromorphone, (3) oxycodone, and (4) oxymorphone. Common names for these semi-synthetic drugs include OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid, and Exalgo. After having received public comment during 2017 on the proposed new rule, DOT’s new regulations will go into effect on January 1, 2018.

Currently, DOT regulations only allow employers to drug test CDL drivers for the following five substances: (1) Marijuana (THC); (2) Cocaine; (3) Amphetamines; (4) Opiates; and, (5) Phencyclidine (PCP). The term “opiates” has included heroin, morphine and codeine, but previously did not include semi-synthetic opioid painkillers such as Oxycontin and Vicodin. Under the new regulations, the drug test panel will still be referred to as a 5-panel test, but the word “opioids” will be substituted for “opiates”, which will be defined to include all of the prescription painkillers named above.

Under existing DOT regulations, the Medical Review Officer (“MRO”) who reviews a drug test result may determine that the employee had a legally valid prescription that provides a legitimate explanation for a positive result. However, the same MRO must also report when a test result indicates that continued performance by the employee of a safety-sensitive job function is likely to pose a significant safety risk. As an employer, what action do you take if an employee has a valid prescription for a painkiller but the use of the drug calls into question their ability to safely or adequately perform the essential functions of the position?

Such a scenario requires an employer to proceed under the parameters of the Americans with Disabilities Act (“ADA”). (Hint: all local governments are “covered” employers under the ADA regardless of size). An employee’s legal use of a prescription medication may indicate a medical impairment that qualifies as a “disability” under the ADA, thus triggering the ADA’s interactive process and “reasonable accommodation” mandate. The interactive process is a dialogue between the employer and employee regarding the limitations presented by the employee’s medical impairment and potential reasonable accommodations. Employers must consider potential “reasonable accommodations”, which can include temporary job restructuring or unpaid time off from work.

Not every accommodation is “reasonable” and employers generally are not required to waive or reassign “essential” job functions. However, where many employers go astray is by rushing to conclusions about ability to perform job duties and potential accommodations, without full consideration of relevant information and factors. A critical part of the consideration is an analysis of the employee’s essential job functions. Employers may also consider under certain circumstances whether a direct safety threat is presented, such as in the case of a police officer or heavy equipment operator with a medical impairment that impacts performance of job duties.

The key under the ADA is properly evaluating all appropriate factors. Employers may find it penny wise and pound foolish to not involve legal counsel when an employee’s job performance is impacted by a medical condition. Regarding the new DOT regulations, if your municipality’s drug testing policy names the specific substances included in the test panel, your policy should be updated to conform to the expanded drug test panel under the new regulations which are effective on January 1, 2018.