MRO’s are adding on negative test results “safety concerns” which have confused lots of DER’s on how to handle a safety concern.
On January 1, 2018, DOT regulatory updates went into effect covering many aspects of DOT-mandated testing, but most significant was the addition of four semi-synthetic opioids: hydrocodone, hydromorphone, oxycodone, and oxymorphone. When a MRO on a negative test puts into his/her notes that there is a “safety concern”, an employer is not required to do anything based on Part 40 rule language. In fact, the phrase “safety concern” does not appear in Part 40 or any of the DOT agency regulations.
As a practical matter, an employer should “resolve” a safety concern reported on a negative test by the MRO as a way to limit liability for accidents/incidents that may be related to an employee’s unsafe performance of safety-sensitive duties.
The two recommended ways to resolve or address MRO reports of safety concern are:
1. Obtain a statement from the employee’s prescribing physician that the medications of concern have been discontinued, the employee is no longer medically authorized to use them, the prescribing physician has changed the prescription to a medication that does not adversely impact safety or, in the physician medical judgment, the employee can safely perform safety-sensitive duties while taking the medication as prescribed.
2. Have the employee evaluated by an occupational medicine physician, familiar with the employee’s job duties, to determine if the employee can safely perform his/her safety-sensitive duties.
If an employee has a DOT medical qualification requirement (e.g., commercial driver DOT physical), the employer may alternately require the employee to submit to another medical qualification examination by a Federal Motor Carrier Safety Administration-certified medical examiner to determine if the driver remains medically qualified.