Announcements

“Significant Safety Risk”

Published on November 25, 2020

What is it? When a prescription drug/metabolite is detected during a USDOT drug test, the Medical Review Officer (MRO) is required to verify that the tested individual has a legitimate medical explanation for the presence of that drug/metabolite. MROs will conduct a verification process in an effort to determine if the drug was legitimately prescribed. During this verification process, the MRO will attempt to contact the tested individual for an interview and to verify whether or not the individual has a legally valid prescription (consistent with the Controlled Substances Act (CSA)).

If after interviewing the tested individual, the MRO determines that there is not a legitimate medical explanation for the presence of the drug/metabolite, the MRO will report the test result as positive to the employer. On the other hand, if the MRO determines that there is a legitimate medical explanation, the test will be reported as negative to the employer. However, even in cases when the MRO verifies a legally valid prescription and reports a test as negative to the employer, the MRO still has a serious safety duty, and responsibility under 49 CFR Part 40, to address potential safety concerns.

If the MRO has a safety concern and determines that, despite a legally valid prescription and verified negative test result, the employee is either (1) likely to be rendered medically unqualified under an applicable USDOT agency regulation, and/or (2) is likely to pose a “significant safety risk” if they continue to perform safety-sensitive functions, the MRO is required to provide the employee with up to five business days to have the prescribing physician contact the MRO, before the MRO reports this safety concern to the employer. This five-day period allows the prescribing physician to contact the MRO to determine if any actions can be taken (e.g., change of medication, modify treatment plan, etc.) that will alleviate the MRO’s safety concern. If the MRO does not receive such information from the prescribing physician within five business days, the MRO is required to then report the safety concern to the employer.

It is very important to remember that if an employee is identified as a “significant safety risk,” this is not in any way equivalent to a positive test result. Employers must not treat a “significant safety risk” determination the same as a positive test result. Remember, an employee who is a “significant safety risk” had a verified negative test result, with an added concern by the MRO about their safety impact.

Workplace Impact. An important factor for employers and employees to understand is that neither USDOT nor FTA has issued any formal or informal direction on how employers are supposed to handle a circumstance when an employee is deemed to be a “significant safety risk.” Once an employer is notified of such by the MRO, all action taken thereafter would be under the sole authority of the transit agency. Upon notification, employers must follow procedure for CDL standard violation, if appropriate.

Best Practices. Beyond addressing potential CDL standard violations, the actions an employer takes following notification of a “significant safety risk” are under the sole authority of the employer. These actions should be carefully crafted and articulated within a written agency policy, being sure to address all legal, collective bargaining, human resource, liability, and other workplace concerns. In establishing a program to address these fitness-for-duty concerns, some areas to cover would include:

• Policy
• Consequences
• Procedures
• Employee Education
• Documentation, method of employee reporting, confidentiality.

Other best practices include assisting your employee workforce in being proactive:

• Educate employees on safety risks of prescription medications
• Provide a summary of regulatory changes https://www.transportation.gov/odapc/Part_40_DOT_Employee_Notice_2017
• Review with employees the new/revised employer policy (after you complete that action)
• Define process and provide guidance on how to notify the prescribing physician to contact the MRO
• Inform applicants of possible requirement to facilitate contact between their prescribing physician and the MRO, so they can proactively gather up to date and correct contact information.
• Encourage employees to:
  • Obtain updated prescriptions:
  • If current Rx is more than 1 year old
  • Rx states “take as needed” for an injury that is no longer being treated
  • Employee does not have ongoing relationship with prescribing physician (E.R., urgent care, etc.)
• Revisit treatment options with their prescribing physician for chronic or reoccurring conditions to minimize safety impacts
• Discuss timing, dosing, and alternative medications with their physician

This article was published in the RTAP February 2020 newsletter, published by RLS & Associates.