On January 23, 2017, the U.S. Department of Health and Human Services (HHS) revised the Mandatory Guidelines for Federal Workplace Drug Testing Programs. More specifically, the notice expanded federal urine workplace drug testing to include four Schedule II drugs: hydrocodone, hydromorphone, oxycodone, and oxymorphone. The effective date for the revised Guidelines is October 1, 2017. The U.S. Department of Transportation (DOT) also published a notice of proposed rulemaking to amend 49 CFR Part 40 to harmonize with HHS to expand its federal drug testing panel. There is a 60-day comment period with a deadline of March 24, 2017 for these DOT proposed rules.
In addition to adding four Schedule II opioids to regulated drug testing programs, the notices included several minor changes: adding MDA as an initial test analyte and removing MDEA for confirmatory testing. The revised HHS Guidelines also raise the lower pH cutoff from 3 to 4 to identify an adulterated specimen and allow the Medical Review Officer (MRO) to recommend the collection of an oral fluid specimen in certain situations, as permitted by agency policy. The proposed DOT rules would also eliminate the requirement for employer blind specimen testing and updates some MRO training/re-certification requirements.
We wanted to answer some of your most common questions regarding this announcement.
- When will the DOT require these Schedule II drugs as part of its panel?
The public comments on the proposed DOT rules are due March 24, 2017. It is anticipated that the DOT will publish rules that are harmonized with HHS with an effective date of October 1, 2017. This timing would be dependent on the number and content of the comments as well as the regulatory process.
- What will be the name of this drug test panel?
Based on the past implementation of the August 16, 2010 (effective October 1, 2011) harmonized DOT rules that added additional analytes, the DOT still considered the test a “5‑panel” drug test. Until the final rules are published, the name of the revised drug test panel is unknown. However, Quest Diagnostics will utilize a new order code for this new drug test panel. All of our DOT ordering accounts will be automatically updated to this new order code and panel name on the effective date of the new rules.
- Can I start testing our DOT employees now? What about non-regulated drug testing?
No because changes may still be made to DOT or other regulated drug testing until the effective date of their respective requirements. Non-regulated testing of prescription (“expanded”) opiates is already permitted in compliance with applicable state laws and regulations. Approximately 15 percent of our non-regulated opiate drug testing currently includes these prescription opiates.
We work to continually refine our laboratory testing to comply with changing regulations and as part of our commitment to quality and scientific innovation. Stay up to date with this regulation and other industry news on our website, blog, and social media communities.
Read the HHS revised guidelines in the Federal Register
We encourage everyone to read the DOT Proposed Rules and comment.
View the Quest Diagnostics Drug Testing Index™ for urine testing positivity data.
For more information, contact your sales representative or contact us online.
New regulations issued by the Occupational Safety and Health Administration (OSHA) regarding Recording and Reporting Occupational Injuries and Illnesses became effective on December 1, 2016. The regulations prohibit employers from retaliating against employees for reporting workplace injuries and illnesses (OSHA 29 CFR 1904). Although drug and alcohol testing was not mentioned in the Final Rule itself, OSHA noted in the Preamble that in some circumstances post-accident drug and alcohol testing could be a retaliatory practice. Few, if any, regulation changes of late have caused more confusion for employers and their drug testing policies and procedures than this rulemaking. The information below is meant to help clarify some misconceptions.
Post-accident drug and alcohol testing is still allowed. However, there must be a “reasonable possibility” that drug or alcohol use caused or contributed to the reported injury or illness to justify requiring the employee to submit to a drug and/or alcohol test. Blanket requirements for post-injury or post-accident drug or alcohol testing could be considered a violation by OSHA. Examples of possible violations include requiring testing after a report of a repetitive strain injury or a bee sting.
Employers do not have to specifically suspect drug use by an individual employee to drug test, but there must be a reasonable basis to investigate whether drug or alcohol use may have caused or contributed to an injury or illness. OSHA’s regulations do not apply to mandatory Federal (e.g., DOT) or state workers’ compensation testing provisions or testing under a state drug-free workplace program to comply with workers’ compensation provisions. Furthermore, it does not apply to pre-employment, reasonable suspicion, random, return-to-duty, or follow-up testing.
OSHA is clear – post-accident drug testing is not only permissible, it is still a reasonable and acceptable workplace safety practice. Employers should take precautions to ensure that their workplaces are safe, and drug testing is an important part of those precautions.
Key Points for OSHA-Regulated Employers
- Employers can and should continue to use post-accident drug screening
- OSHA will not and cannot issue citations for drug testing required under a mandatory state law, a voluntary drug free workplace law, or a federally-regulated program
- The OSHA regulation requires a “reasonable basis” for employers to perform a post-accident drug test and applies solely to post-accident tests
- To verify a drug test is meant for OSHA-regulated, post-accident testing, consider the following factors: Whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore that the result of the drug test could provide insight into why the injury or illness occurred)
- Whether other employees involved in the incident that caused the injury or illness were also drug tested
- Whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardous nature of the work being performed when the injury or illness occurred
What Do OSHA-Regulated Employers Need to Do?
- Review your drug testing policy, especially for post-accident testing, to ensure compliance with the new OSHA guidance
- Remove any blanket testing rules for OSHA post-accident testing and make certain testing occurs only when there is a reasonable basis to assume drug use contributed to an accident or injury
- Review your state laws. State laws can be a central part of an employer policy. Adherence to drug-free workplace program and state worker’s compensation laws will not change and OSHA will not find a violation of these new regulations when post-accident testing is performed in compliance with these laws
- Provide post-accident “reasonable suspicion” training for your supervisors and managers
- Review your reporting procedures to streamline the process, making reporting easier for your employees
- Implement a “decision tree” as part of your accident investigation and include the documentation from the decision tree as part of the accident investigation file
For more information about drug testing, visit our website or contact us online.
Written with the assistance of guest contributors Nina French and Faye Caldwell.