by Brian Dershaw and Connie Kremer
Taft Stettinius & Hollister LLP is an IMA B2B Partner…
The Department of Transportation (“DOT”) regulates drug testing for safety-sensitive transportation employees. These positions include commercial motor carriers, certain aviation employees, maritime crew-members, pipeline operators, and railroad operators.
In response to the nationwide epidemic of opioid abuse, the DOT has added four semi-synthetic opioids to its drug-testing panel: hydrocodone, hydromorphone, oxymorphone, and oxycodone. These prescription medications are Schedule II drugs under the Controlled Substances Act.
The addition of these opioids aligns the DOT drug-testing panel to that of the Department of Health and Human Services (“HHS”). The HHS recently allowed federal agencies to test for the same four substances.
Note that these semi-synthetic opioids are frequently prescribed. The regulations provide for such circumstances and rely on the medical judgment of the Medical Review Officer (“MRO”) to determine whether a valid prescription constitutes a legitimate medical explanation for the presence of the drug in the employee’s system. MROs may not second-guess the prescribing physician’s decision to prescribe the medication. However, MROs may consider the period of time that has lapsed between the employee receiving the prescription and the drug appearing in the employee’s drug screen.
There is no bright-line rule for the length of time during which a prescription remains valid as a legitimate explanation for the positive drug screen.
The DOT reiterated that there can be no valid prescription for marijuana regardless of state medical marijuana laws as it is still illegal in all states pursuant to federal law.
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