The U.S. Department of Transportation’s (“DOT”) new Final Rule modifying DOT regulation 49 CFR Part 40 (“Final Rule”) became effective January 1, 2018.  Specifically, the Final Rule affects employers of employees in safety sensitive positions, and includes changes to the types of drugs for which employers can test, as well as the manner in which employers submit specimens for testing.

Changes to Drug Testing Panel

The Final Rule modifies the drug testing panel to include testing for semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, and oxymorphone). In addition, the Final Rule 1) changed the name of the category of drugs to be tested from “opiates” to “opioids;” 2) removed testing for methylenedioxyethylamphetaime (MDEA); and 3) added testing for methylenedioxyamphetamine (MDA).  Now, the drugs for which employers must test employees subject to the Final Rule include marijuana, cocaine, amphetamines, phencyclidine, and opioids.

Changes to Specimen Collection

Employers and Consortium/Third Party Administrators are no longer required to submit blind specimens to laboratories. Under the prior regulation, an employer sent a blind specimen to a laboratory, accompanied by a Federal Drug Testing Custody and Control Form, with a fictitious donor name for quality control purposes to see whether the laboratory’s results matched the known contents of that particular blind specimen. Because no false positive results have been found in the last 25 years of drug testing through testing blind specimens, the DOT removed the blind specimen testing requirement.

Other Notable Changes

The Final Rule additionally changed Medical Review Officer (MRO) practices. In particular, a “prescription” is now defined as a legally valid prescription consistent with the Controlled Substances Act (CSA). This is a significant change: the CSA classifies marijuana as a Schedule I drug, so a prescription for medical marijuana under state law does not qualify as a legally valid prescription for DOT drug testing purposes.

Furthermore, the Final Rule modifies the timing regarding when a MRO must communicate to a third party that the MRO considers an employee may be medically unqualified for their position or may pose a significant safety risk when performing a safety sensitive function.  Specifically, if an MRO determines that a legally prescribed medication may make the employee medically unqualified or cause him/her to pose a significant safety risk, the MRO must provide the employee with up to five business days to have his/her physician contact the MRO to discuss whether the medications can be changed to either a prescription that does not make the employee medically unqualified or a prescription that does not pose a significant risk before the MRO may report a safety concern to a third party, including the employer.

Employers would do well to examine their DOT drug testing procedures to ensure compliance, and may do so with the assistance of able counsel.