Category Archives: Drug Testing

Combatting the Opioid Crisis from Within

Contributed by Suzannah Wilson Overholt, December 27, 2019

Studio macro of a stethoscope and digital tablet with shallow DOF evenly matched abstract on wood table background copy space

The average life expectancy in the U.S. has declined for three consecutive years. The Centers for Disease Control and Prevention (CDC) links that decline to three factors: the rise in drug overdoses, an increase in liver disease, and a rise in suicide rates. More than 2 million Americans from all walks of life suffer from an opioid use disorder (OUD), and about two-thirds of those people are in the workforce. This has a tremendous financial impact on employers:  In 2016, U.S. large employers covered $2.6 billion on treatment for OUD and overdose, up from $0.3 billion in 2004.  

OUD and substance use disorder (SUD) more generally have a negative impact on the workplace through increased absenteeism, impaired job performance, and a decrease in the eligible workforce either due to candidates failing pre-employment drug screenings or fewer candidates applying as a result of their dependency. Employers can combat these issues by increasing accessibility to various treatments through their health plans and adopting policies allowing time for necessary treatment.

Studies indicate that the majority of employees would not seek help for a prescription opioid problem due to perceived stigma in the workplace. Educating employees about the risks and signs of opioid use disorder and taking steps to minimize stigma surrounding OUD/SUD can help address – and reduce – the problem before it starts. This can be accomplished by discussing the prevalence of OUD/SUD in America across all races, genders and socio-economic groups and recognizing individuals who have overcome the disease.  

If an employee does come forward to seek help with OUD or SUD, understanding the interplay of leave policies is important. As usual, the FMLA and ADA play the leading role here. Under both, there is a distinction between an employee’s ongoing substance use (not protected) and seeking treatment for that use (protected). 

Under the FMLA, the employee has to be in treatment or scheduled to start treatment for such time to qualify as FMLA covered leave. The addiction to be treated must constitute a serious health condition. The employee has to be referred for rehabilitation by a health care provider and the rehabilitation needs to be provided by a health care provider or by a provider of health care services, as those terms are defined by the FMLA.

The ADA provides that a person who has successfully completed a supervised drug or alcohol rehabilitation program or is participating in a supervised rehabilitation program and who is no longer engaging in substance use may be deemed a qualified individual with a disability. 

Employers may also want to evaluate their zero tolerance policies related to drug tests and drug and alcohol related conduct. Rather than require dismissal for a failed drug test or inappropriate behavior linked to OUD/SUD, a revised policy could refer the employee for treatment.

Any crisis requires a response plan to overcome and move beyond it. The opioid crisis is no different and, like most other issues, is best addressed through education and the consistent implementation of appropriate policies and procedures.

FMCSA Drug and Alcohol Clearinghouse Rule Deadline – Employers of DOT regulated employees have you registered yet?

Contributed by Carlos Arévalo and Mike Wong, December 20, 2019

While the Federal Motor Carrier Safety Administration’s (FMCSA) Clearinghouse Rule became effective on January 4, 2017, it has been a while so here is a reminder that the Rule goes into effect on January 6, 2020, just over a week away.

Despite delays, be assured the Clearinghouse website is now allowing employers to register.  So before you open that first present or have an eggnog in your favorite moose mug to enjoy the holidays, make sure you are registered and understand the new requirements. While the Clearinghouse’s FAQ’s are extremely helpful in providing information, here is a quick refresher.

The FMCSA amended its regulations to establish a database that will contain information about violations of DOT/FMCSA drug and alcohol testing programs for holders of CDLs, including test results and test refusals. This database is called the Commercial Driver’s License (CDL) Drug and Alcohol Clearinghouse A.K.A. the “Clearinghouse.” The purpose behind forming the Clearinghouse and establishing regulations for employers regarding the Clearinghouse is to improve roadway safety by identifying and making readily available information regarding commercial motor vehicle drivers who have committed drug and/or alcohol violations that would render them ineligible to operate a CMV on behalf of a carrier or transportation company.

Under the regulations, ALL DOT/FMCSA-regulated employers, Medical Review Officers, Substance Abuse Professionals, consortia/third-party administrators and other service agents are required to report violations of DOT drug and alcohol testing regulations by applicants and employees to the Clearinghouse. 

Additionally, the regulations require ALL DOT/FMCSA-regulated employers to conduct a query of the Clearinghouse, pursuant to an electronic consent from an applicant, as part of the pre-employment driver investigation process, as well as a query for each current CDL driver employee on an annual basis.  Essentially, instead of mailing, faxing, email or sending a messenger pigeon to prior employers disclosed by an applicant, FMCSA-regulated employers now must conduct a “query” or search of the Clearinghouse to see if the applicant has tested positive for drugs or alcohol in violation of DOT drug and alcohol rules, and if so, if they have completed the required evaluation and treatment before being eligible to operate a CMV again.

Who does this impact? Anyone who is required to conduct DOT drug and alcohol tests for safety sensitive transportation employees, including owner-operators, contractors and volunteers, as well as service agents. Quite simply anyone employing CDL drivers who operate commercial motor vehicles (CMVs) on public roads, including:

  • Interstate motor carriers
  • Federal, State, and local governments and municipalities
  • School Districts and Civic organizations (may include, disabled veteran transport, boy/girl scouts, etc.)
  • Faith-based organizations

Remember, “operating” can be as simple as a mechanic test driving a tractor before it goes back into service or a warehouse worker whose job it is to move trucks/trailers around the yard.

When do I have to do a Query? Pre-employment and on an annual basis for all current employees who are required to have a CDL and drive a CMV on a public roadway.

How much is this going to Cost? Generally, queries will cost $1.25 each, but bundled options and high volume packages are available.  

What else do I need to know? In addition to doing queries and reporting positive drug and/or alcohol tests, under § 382.601 of the DOT regulations, employers will have to provide “educational materials that explain the requirements [of the Rule] and the employer’s policies and procedures” to meet the Rule. In other words, either information regarding the Clearinghouse or revised employee policies notifying employees that the following will be reported to the Clearinghouse:

  • A verified positive, adulterated, or substituted drug test result
  • An alcohol confirmation test with a concentration of 0.04 or higher
  • A refusal to submit to a drug or alcohol test
  • An employer’s actual knowledge, as defined at 49 CFR § 382.107 regarding:
  • On duty alcohol use pursuant to 49 CFR § 382.205;
  • Pre-duty alcohol use pursuant to 49 CFR § 382.207;
  • Alcohol use following an accident pursuant to 49 CFR § 382.209; and
  • Controlled substance (including Cannabis) pursuant to 49 CFR § 382.213
  • A Substance Abuse Professional’s report of the successful completion of the return-to-duty process
  • A negative return-to-duty test
  • An employer’s report of completion of follow-up testing

Employers will also need to have drivers sign an acknowledgment that they received copies of the notice or policy amendments and maintain copies of such for their records. 

Finally, to ensure compliance the Rule also implements penalties provisions. Specifically, § 382.507 incorporates the penalty provisions in § 521(b)(2)(C) of Title 49 of the Code of Federal Regulations that impose a $2,500 fine for each offense. 

As such, in light of the upcoming deadline, we recommend that employers not only register and start running queries and reporting positive tests after January 6, 2020, but amend their policies and/or provide as noted above in order to be in compliance with the Rule requirements.