PHMSA Raises Random Drug Testing Rate to 50% for 2018

The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration announced December 8, 2017 that during calendar year 2018, the minimum random drug testing rate will be increased to 50%.

Operators of gas, hazardous liquid, and carbon dioxide pipelines and operators of liquefied natural gas facilities must randomly select and test a percentage of all covered employees for prohibited drug use. The minimum annual random drug testing rate was 25% of all covered employees for calendar year 2017.  However, the PHMSA regulations require the Administrator to raise the minimum annual random drug testing rate from 25% to 50% of all covered employees when the data obtained from the Management Information System reports (required to be filed by covered entities under PHMSA regulations) indicate the positive test rate is equal to or greater than 1%.  In calendar year 2016, the random drug test positive test rate was greater than 1%.  Therefore, the PHMSA minimum annual random drug testing rate shall be 50% of all covered employees for calendar year 2018.

U.S. Department of Transportation Publishes Guidance For Updating Drug and Alcohol Testing Policies

The drug testing panel utilized by the U.S. Department of Transportation’s operating agencies will change on January 1, 2018. (Click here to read our blog post on that change).  DOT published guidance on December 1, 2017 to assist employers with regard to updating their drug and alcohol testing policies.  The guidance states as follows:

“The Federal Transit Administration, Federal Motor Carrier Safety Administration, Federal Aviation Administration, Pipeline and Hazardous Materials Safety Administration, Federal Railroad Administration, and U.S. Coast Guard take this position:

There is no need for employers to make any changes if their current DOT policies refer to adhering to “… Part 40.” However, there are exceptions when an employer’s DOT policy lists the following optional information:

  • If sub-categories of drugs tested under the 5-panel are listed – for example, if a policy lists “Opiates (codeine, heroin, & morphine)” and/or “Amphetamines (amphetamine, methamphetamine, MDMA, MDA, MDEA), then “Opiates“ needs to change to “Opioids (codeine, heroin, morphine, oxycodone, oxymorphone, hydrocodone, hydromorphone)” and “MDEA” will need to be removed from the list under Amphetamines.  If however, employers would like to delete the sub-categories of drugs, doing so will also be acceptable.
  • Likewise, if cut-off levels are listed in current policies, employers must update those cut-off levels. Again, employers may simply delete the cut-off levels completely and be in compliance if the DOT policy refers to adhering to “… Part 40.”
  • While these DOT Agencies and USCG suggest that employers provide written notice to employees about their updated DOT policies, doing so is an employer’s prerogative.”

DOT-regulated employers should review their drug and alcohol testing policies to determine whether any revisions are required to comply with the changes effective January 1, 2018.

U.S. Department of Transportation Expands Its Drug Testing Panel Effective January 1, 2018

The U.S. Department of Transportation announced in a rule published in the Federal Register on November 13, 2017, that, among other revisions to its drug and alcohol testing regulations, it will expand its drug testing panel to include four “semi-synthetic” opioid drugs: hydrocodone, hydromorphone, oxycodone and oxymorphone.  These changes are being made to harmonize DOT’s drug testing regulations with recent revisions to the U.S. Department of Health and Human Services’ Mandatory Guidelines for Federal Workplace Drug Testing Programs that took effect on October 1, 2017. The changes to DOT’s rules take effect on January 1, 2018.

DOT-regulated employers include those regulated by the Federal Motor Carrier Safety Administration, Federal Aviation Administration, Federal Railroad Administration, Federal Transit Administration, Pipeline and Hazardous Materials Safety Administration, and the United States Coast Guard.

Prescription Painkiller Epidemic

The addition of the semi-synthetic opioid drugs is intended to address the nationwide epidemic of prescription painkiller abuse. Hydrocodone, hydromorphone, oxycodone and oxymorphone are Schedule II controlled substances and are more commonly known as Vicodin, OxyContin, Lortab, Norco, Percocet and Dilaudid, among others.  DOT still refers to its drug testing panel as a 5-panel, but the term “opiates” is being changed to “opioids” and now will include these four synthetic substances in addition to heroin, morphine and codeine.  The Department of Health and Human Services explained that the four prescription pain medications were added to the standard testing panel because data indicates that although they are prescribed, they are the prescription pain medications that are most frequently used without medical authorization.

DOT regulations still permit the employee to produce a legitimate medical explanation for the presence of drugs in his/her system, but the Medical Review Officer is not permitted to question whether the prescribing physician should have prescribed the substance.

In addition, DOT will add methylenedioxyamphetamine (MDA) as an initial test analyte, and remove methylenedioxyethylamphetamine (MDEA) as a confirmatory test analyte.

Drug Panel and Cut-off Concentrations

As of January 1, 2018, all DOT-regulated employers must utilize the following drug test panel and cut-off concentrations:

Drug                                                                Initial                          Confirmatory

Marijuana                                                       50  ng/ml                    15  ng/ml

Cocaine                                                           150  ng/ml                  100  ng/ml

Phencyclidine (PCP)                                       25    ng/ml                  25   ng/ml

Amphetamines                                               500 ng/ml                   250  ng/ml

(includes Methamphetamines, MDMA, MDA)

Opioids

Codeine/Morphine                                    2000 ng/ml                 2000 ng/ml

6-AM (Heroin)                                               10 ng/ml                     10 ng/ml

Hydrocodone/Hydromorphone              300 ng/ml                   300 ng/ml

Oxycodone/Oxymorphone                      100 ng/ml                   100 ng/ml

Other Revisions

DOT’s new rules also make certain technical amendments, clarify certain definitions and remove the requirement for employers and Consortium/Third Party Administrators to submit blind specimens. Among other things, the definition of “drugs” has been revised to include “opioids” instead of “opiates”, and the definitions of “evidential breath testing device” and “alcohol screening device” have been revised.

The regulation addressing direct observation collections is being revised to require service agents who learn that a direct observation collection should have been collected but was not, to inform the employer to direct the employee to have an immediate recollection under direct observation. (Previously this requirement applied only to collectors).

The regulation addressing MRO verification of valid prescription medication use also is being revised as follows:

You [the MRO] must also advise the employee that, before informing any third party about any medication the employee is using pursuant to a legally valid prescription consistent with the Controlled Substances Act, you will allow 5 business days from the date you report the verified negative result for the employee to have the prescribing physician contact you to determine if the medication can be changed to one that does not made the employee medically unqualified or does not pose a significant safety risk.  If, in your reasonable medical judgment, a medical qualification issue or a significant safety risk remains after you communicate with the employee’s prescribing physician or after 5 business days, whichever is shorter, you must follow §40.327. If, as the MRO, you receive information that eliminates the medical qualification issue or significant safety risk you must transmit this information to any third party to whom you previously provided information under §40.327.

DOT will require Medical Review Officers, Substance Abuse Professionals, Breath Alcohol Technicians and Screening Test Technicians to subscribe to the Office of Drug & Alcohol Policy & Compliance’s list-serve to receive ODAPC e-mail updates.

DOT’s new regulations also confirm that no specimens, other than urine, may be tested for drugs. Only urine specimens screened and confirmed at HHS-certified laboratories are permitted; point-of-collection testing, or instant tests, are not authorized.

DOT-regulated employers should revise their drug and alcohol testing policies to conform to the regulations that are effective on January 1, 2018.

Governor’s Veto of Recreational Marijuana Law Upheld by Maine House

The Maine House of Representative upheld November 6, 2017 Governor Paul R. LePage’s veto of a bill to legalize and regulate recreational marijuana. The 74-62 vote fell 17 votes short of the two-thirds margin required to override the Governor’s veto.  The bill had been drafted by a special committee that was supposed to implement a law after Maine voters approved recreational marijuana in November 2016.

Currently seven states (and the District of Columbia) have recreational marijuana laws:  Alaska, California, Colorado, Massachusetts, Nevada, Oregon and Washington.

Maine Governor Vetoes Recreational Marijuana Law

Governor Paul R. LePage of Maine vetoed a bill to legalize and regulate marijuana on November 3, 2017. In a letter to the Maine Legislature, he urged the Legislature to “sustain this veto and continue to work to get this important law right.”  The legislature is schedule to vote on a veto override on November 6, 2017.

The governor cited several reasons for vetoing the bill, including the facts that:  marijuana still is illegal under federal law and it is unclear how the Trump administration views recreational marijuana; the regulations do not ensure consistency between the recreational marijuana program and the medical marijuana program; the bill’s unrealistic timelines will result in “hastily-crafted regulation”; and, marijuana-related traffic deaths and other crimes may increase if Maine’s law is not crafted and regulated properly.

In November 2016, Maine was one of four states in which voters approved new recreational marijuana laws. Maine’s law was to take effect on January 30, 2017; however, emergency legislation passed on January 27, 2017 delayed the implementation of the law until 2018 so that the state licensing authority could establish and implement regulations concerning the retail sales of marijuana, among other things.

 

New York’s Highest Court Rules That Perceived Alcoholics Are Not Protected Under New York City Human Rights Law

The New York Court of Appeals ruled that the New York City Human Rights Law (“NYCHRL”) does not permit a claim of disability discrimination based solely on a perception of untreated alcoholism. To sustain a claim, an individual must actually be a recovered (or recovering) alcoholic and no longer abusing alcohol. Makinen v. City of New York, 2017 NY Slip Op. 07208 (N.Y. October 17, 2017).

As we discussed in a previous blog post, two former New York City police officers were not alcoholics, but were falsely accused of abusing alcohol in the context of their respective child custody disputes. Those allegations were reported to the New York City Police Department. The NYPD gave the police officers mandatory referrals to the Department’s Counseling Services Unit where they were diagnosed with alcohol abuse and alcohol dependence. The officers accepted alcohol treatment in order to avoid disciplinary action, but maintained that they were not, in fact, alcoholics. In the subsequent litigation, all parties agreed that the officers “were not actually alcoholics.”

The police officers sued the City of New York and others for disability discrimination under the NYCHRL, arguing that the New York City Police Department regarded them as alcoholics, although they were not. The trial court allowed the officers to proceed with their claims, but on appeal, the Second Circuit Court of Appeals asked the New York Court of Appeals (New York State’s highest court) to certify the question as to whether the NYCHRL precludes a plaintiff from asserting a disability discrimination claim based solely on a perception of untreated alcoholism.

The New York Court of Appeals answered the question in the negative, holding that the “plain language” of the law limits protections only to those employees who (1) are recovering or have recovered from alcoholism, and, (2) are “currently free of such abuse.” The meaning of this plain language is that the NYCHRL “does not regulate employer actions motivated by concern with respect to the abuse of alcohol.”

In its decision, the Court recognized that this holding and the statutory language of the NYCHRL vary significantly from both state and federal law. Indeed, both the New York State Human Rights Law and the Americans with Disabilities Act afford protections to alcoholics even if still abusing alcohol – a fact all parties conceded. But the Court stated that it could not rewrite the statute, and that the City Council could amend the language of the law.

While this decision is a “win” for New York City employers, we can expect to see a legislative response amending this statutory language of the NYCHRL as a result of this decision. Additionally, employers in New York and elsewhere remain obligated under state and federal disability laws to treat employees struggling with alcohol or drug addiction like other disabled employees, regardless of whether the employee is in treatment or not, or whether the addiction is real or perceived.

Employers should review policies and practices keeping in mind that alcohol and substance abuse issues may be potential disabilities. Consider training managers on how to effectively communicate with employees facing alcohol or substance abuse issues. Such issues often arise post-accident or during performance and attendance discussions. If not properly trained to identify and address the potential disability issues, managers may inadvertently run afoul of protections for such employees.

Government Employee Can Proceed to Trial on Her Challenge to the District of Columbia’s “Blanket” Drug and Alcohol Tests

The federal court for the District of Columbia ruled that a former employee of the D.C. Office of the Chief Medical Examiner (“OCME”) could proceed to trial with her claims that drug and alcohol tests she was required to take violated her Fourth Amendment rights against unreasonable searches as well as the Americans with Disabilities Act. Lewis v. Gov’t of Dist. Columbia, No. 15-521 (D.D.C. October 18, 2017).

Patricia Lewis worked as a Human Resources Advisor for the OCME. The OCME performed autopsies as well as other forensic and medico-legal investigations for the District.  In 2012, the employees in the OCME department were advised that their department was moving into a newly-built Consolidated Forensic Laboratory (“CFL”) which also would house a number of other departments, including the Department of Forensic Sciences, and the DNA laboratory and Firearms and Fingerprint Examination Division of the Metropolitan Police Department.  Because of the nature of the work being performed at the CFL, the District determined that all employees to be assigned to work in the CFL would be required to undergo mandatory criminal background checks and drug and alcohol tests.

Lewis refused to consent to the drug and alcohol tests. Because she wouldn’t sign the consent form and would not agree to be tested, Lewis was prohibited from working in the CFL and ultimately terminated for neglect of duty and insubordination.  In response to her termination, Lewis filed suit against the District, OCME and other District officials for violations of the Americans with Disabilities Act and her First and Fourth Amendment rights.  Both sides filed motions for summary judgment.  The Court denied Lewis’ motion, and granted in part and denied in part Defendants’ motion.

The Court first reviewed Lewis’ claims that she was fired in retaliation for exercising her right to free speech. The Court reviewed Lewis’ position as a H.R. Advisor and determined that Lewis was not speaking as a citizen; rather, she made comments objecting to the drug and alcohol tests in relation to her job and, therefore, the speech was not protected.

The Court then turned to Lewis’ claim that the drug test violated her Fourth Amendment right to be protected from unreasonable searches, a claim that the Court characterized as the “heart of the suit.” The Court first recognized that public employees “have a serious and legitimate privacy interest in not being subject to random drug tests.” Therefore, the Court considered whether the District had demonstrated a legitimate need for the drug test.  In support of its position, the District asserted that Lewis would have unlimited access to “rooms containing sensitive and/or confidential material, the exposure of which could disrupt the justice system.”  The “unbridled access” to the information, the District argued, necessitated blanket drug testing of all employees in the CFL.  Lewis denied that she would have had access to anything other than confidential personnel files in her role as an H.R. Advisor.  The Court was unpersuaded that the drug testing was warranted based on “office security” alone and held that the District failed to show a “clear, direct nexus between the nature of the employee’s duty and the nature of the feared violation.” Due to the material disputed facts, the Court denied both motions for summary judgment on the Fourth Amendment claim.

Finally, the Court reviewed Lewis’ ADA claims that the drug testing illegally required her to disclose alcohol and prescription drug use. It is well established that, under the ADA, an employer “cannot make inquiries of an employee as to existence or extent of her disability unless such knowledge is shown to be job-related and consistent with business necessity.”  The Court determined that the District had not “established beyond dispute here that the substance use testing is job related or necessary.” As a result, the Court decided that there was a triable issue of material fact on whether the drug and alcohol tests violated the ADA.

The case highlights the danger for public employers who conduct random or “blanket” drug and alcohol tests of employees who do not occupy dangerous, safety-sensitive positions.

Quest Diagnostics Report Reveals That Prescription Drug Misuse Remains Widespread

A new Quest Diagnostics report released on September 6, 2017 reveals that over 50% of drug test results showed evidence of misuse of prescription drugs.  The report, entitled Prescription Drug Misuse in America: Diagnostic Insights in the Growing Drug Epidemic,” examined 3.4 million prescription medication monitored lab tests performed by Quest between 2011 and 2016.  The report found that the rate of inconsistency in 2016 was 52% (Quest categorized test results as “consistent” or “inconsistent” based on the presence of drug metabolites identified through laboratory testing and their alignment with the information provided by the healthcare provider on the test order). Inconsistent results are potential indicators that patients are misusing one or more drugs.  Quest also reported that 22% of all specimens tested showed non-prescribed or illicit drugs in addition to the patient’s prescribed drugs, reflecting the potential for dangerous drug combinations.

Additionally, the Quest Diagnostics report found that, amongst the specimens tested, more than 20% were positive for both opioids and benzodiazepines (a class of psychoactive drugs often used to treat conditions such as anxiety and depression), more than 10% were positive for both opioid and alcohol and 3% percent were positive for all three. Among all specimens positive for heroin, 19% were also positive for non-prescribed fentanyl.  In addition, 12% of all specimens positive for prescribed opioids were also positive for prescribed benzodiazepines, suggesting one or more healthcare providers had prescribed these drugs for the patient.  While co-prescribing may be medically appropriate for a limited number of patients, these drug combinations greatly increase the risk for potentially lethal respiratory depression.

While there was an 11% decline in prescription inconsistency ratings from 2011, misuse remains high – suggesting that employers are likely to encounter misuse of prescription medications in the workplace.

As we have discussed in previous blog posts, employers should consider whether they are equipped to respond to this epidemic:

  • Review workplace policies and practices to address the use of prescription medications that may cause a safety risk in the workplace. Employees in “safety-sensitive” jobs should report the use of prescription medications that may impact the ability to perform the job safely, so that the Company can address the matter with the employee.
  • Review substance abuse policies to prohibit the use of prescription medications for which the employee does not have a valid prescription.
  • Where permitted by applicable law, consider expanding drug testing panels to cover prescription medications as well as illegal drugs. All positive drug tests should be reviewed by a Medical Review Officer, who will determine whether the drug use was lawful or unlawful.
  • Educate employees on the dangers of using opioid pain medications, and publish options for employees to seek help for substance abuse problems, such as an Employee Assistance Program.
  • Train supervisors on addressing suspected misuse of drugs and alcohol in the workplace. Distinguish between employees who violate Company policies by using drugs at work, and employees who volunteer that they have a substance abuse problem before a policy violation has occurred.
  • Train supervisors on the legal issues involved when discussing an employee’s medical condition, disability status and related use of prescription medications, which can lead to disability discrimination claims if handled improperly.

Federal Court Dismisses Employer’s Claims For Indemnification and Contribution Against Drug Testing Vendor After False Positive Drug Test Result

A federal court in South Dakota granted a motion to strike and a motion to dismiss filed by the Equal Employment Opportunity Commission (“EEOC”) and the laboratory that conducted drug tests for the Defendant employer, holding that the employer was not entitled to seek indemnification or contribution from the laboratory for damages based on a false positive drug test result. EEOC v. M.G. Oil Company, No. 4:16-4131-KES, (D.S.D. August 10, 2017).

On April 8, 2013, Kim Mullaney applied for a job with Happy Jack’s, which is owned by M.G. Oil Company, and was offered a position contingent on a negative drug test. M.G. Oil had contracted with Testpoint Paramedical to analyze the drug tests of prospective employees and inform it whether a test result was negative or positive, after review by a medical review officer.  A medical review officer is a licensed physician who analyzes drug test results and considers whether a positive test result could have been caused by the use of lawful medications.  On April 9, 2013, M.G. Oil sent Mullaney’s drug test to Testpoint for analysis and Testpoint reported that Mullaney’s test was positive.  Assuming that Testpoint had sent the positive test to a medical review officer to determine whether there was a valid legal reason for the positive result, M.G. Oil withdrew its offer of employment to Mullaney.  Mullaney asserted that she was a disabled person under the Americans with Disabilities Act (“ADA”) and that the positive test result was due to a prescription painkiller she took for back pain.  M.G. Oil refused to reconsider its decision.

Mullaney filed a claim of discrimination under the ADA with the EEOC and, after an investigation and failed attempts at resolution, the EEOC brought suit against M.G. Oil. M.G. Oil filed a third-party complaint against Testpoint asserting that it was liable for all or part of any judgment because it had breached its contract with M.G. Oil and was negligent.  Specifically, M.G. Oil asserted that Testpoint was liable because it failed to send Mullaney’s positive drug test to a medical review officer to determine whether there was a valid legal reason for the result prior to reporting the results to M.G. Oil.

The EEOC moved to strike the third-party complaint, and Testpoint moved to dismiss for failure to state a claim. Both argued that claims for indemnity and contribution are not permitted under Title I of the ADA based on the Supreme Court’s holding in Northwest Airlines v. Transport Workers Union, 451 U.S. 77 (1981).  In Northwest Airlines, the Supreme Court determined that a claim for contribution could not be pursued by employers in federal court under Title VII. Northwest Airlines establishes that the right to contribution under a federal statute may be created in two ways: (1) by express or implied language in the statute; and (2) by federal common law. Id. at 90.  The Supreme Court held that neither of those requirements was satisfied in that case.

The EEOC and Testpoint argued that the holding in Northwest Airlines applied to ADA claims because of the similarities in the statutes and the fact that they have the same enforcement provisions.  The Court agreed.  Relying on the Supreme Court’s decision in Northwest Airlines, the Court noted that the “enforcement provisions of the ADA and Title VII do not exist to protect employers, nor do they provide employers with the option to transfer liability by indemnification or contribution.”  As a result, the third-party complaint was dismissed.

This decision underscores how important it is for employers to scrutinize the practices of the vendors they rely upon for drug and alcohol testing services, including collection facilities, laboratories and medical review officers. Employers should confirm, in writing, all policies and procedures that drug testing vendors are expected to follow.

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