Drug Testing Important Updates

1
Drug Testing Important Updates

• Scott Short M.D.
• UVMC Occupational Health
• Medical Director
• Miami County Safety Council - October 13, 2016

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-Agenda-

• Types of Drug Testing
• Substances tested (and not)
• Window of Detection
• Update on Post Accident Drug and
  Alcohol Testing (OSHA)
• Update on Medical Marijuana Law
• How Changes will Affect Company Policy

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Tests Performed at
UVMC Occupational Health

• Urine
• Lab based and Instant
• Well established standards
• Detection times well studied
• Hair
• Much longer length of detection (up to 90 days)
• Hard to adulterate
• Cost about 2x Urine
• Doesnt detect recent use so not for
  post-accident

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Other testing methods we choose NOT to offer

• Blood
• Indicates current exposure, but is an invasive
  procedure
• Saliva
• Much lower concentrations present higher false
  negative rate
• Can indicate more recent exposure

5
Urine

• Gold Standard
• Poppy seed positive Screen can be positive but
  is negative confirmation if level below 15K
• Amphetamine positive from Vicks Screen can be
  positive, confirmation is not.
• There is dilute and there is too dilute

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Be Aware

• There are devices and agents used to falsify drug
  screens

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Hair Testing

• Not really a test of the follicle. Segments are
  tested at about 1cm/month
• Scalp generally but other hair can be used
• 2/3 more positives

8
Be Aware

• There are websites set up to apparently mislead
  employers about false positives

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Federally Regulated Tests (DOT)

• President Reagan (1986) mandated testing for
  illicit drugs. ''Mandatory Guidelines for
  Federal Workplace Drug Testing Programs" limited
  the number of drugs to be tested to the following
  commonly used illicit drug classes (1)
  marijuana, (2) opiates (heroin, morphine), (3)
  cocaine, (4) amphetamine and methamphetamine, and
  (5) phencyclidine.

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Non-Federal Testing (Non-DOT)

• We use a 10 panel test
• Amphetamine
• MDMA
• Cocaine
• Barbiturates
• Benzodiazepines
• Opiates with 6-AM Screen
• Marijuana
• Phencyclidine
• Methadone
• Propoxyphene
• Oxycodone/Oxymorphone

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Drugs not commonly screened

• Tramadol
• Suboxone/Subutex
• Fentanyl
• Inhalants
• Designer Synthetics

12
Validity Testing

• Federal and non-Federal have multiple layers of
  validity testing
• Temperature
• color
• pH
• Specific gravity
• oxidant adulteration
• Nitrites
• Creatinine level

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Cutoff Levels for Drugs Tested

• These levels are the screening cut-off levels,
  there are separate cut-off levels for the
  confirmation test (if screening is positive)

14
Window of Detection for Drug Screens
15
OSHA Update

• OSHAs final recordkeeping rule, Improve
  Tracking of Workplace Injuries and Illnesses,
  was published in the Federal Register May 12,
  2016.
• Pursuant to the new rule, OSHA wants to improve
  recording of workplace injuries.

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OSHA Update

• Part of improving reporting is to decrease
  retaliation practices. Included in definition of
  retaliation is threatening the use of a drug
  screen for reporting an injury.

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OSHA Update

• Some suggested dont screen.
• No longer protecting employee from allegations
• No longer protect company from claims related to
  drugs/alcohol
• Some suggested reasonable suspicion needs
  documented for all post-accident testing.
• Who does it and is always available?
• What training is needed?
• Does this introduce possible discrimination
  allegations?

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OSHA on Post-Accident

• The rule does not prohibit drug testing of
  employees. It only prohibits employers from using
  drug testing, or the threat of drug testing, as a
  form of retaliation against employees who report
  injuries or illnesses. If an employer conducts
  drug testing to comply with the requirements of a
  state or federal law or regulation, the
  employer's motive would not be retaliatory and
  this rule would not prohibit such testing.
• (https//www.osha.gov/recordkeeping/finalrule)
  May 11, 2016, takes effect on August 10, 2016

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Example scenario

• Employer administers a post-accident drug test
  under state BWC DFWP program
• has written policy indicating that company
  considers injuries requiring off-site treatment
  as serious and testing will also be done if X
  of vehicular/non-vehicular damage.

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BWC Drug Free Safety Program

• BWCs Drug-Free Safety Program (DFSP) offers a
  premium rebate to eligible employers
• Drug/alcohol testing
• Basic level Employer must provide
  pre-employment/new hire, reasonable suspicion,
  post-accident, return-to-duty and follow-up
  testing.
• Advanced level Employer must provide the same
  requirements for Basic level plus 15-percent
  random testing.

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BWC Post-Accident

• A fatality of anyone involved in the accident
• Bodily injury requiring off-site medical
  attention
• Vehicular damage in apparent excess of a dollar
  amount stipulated in the employers DFSP policy.
• Non-vehicular damage in apparent excess of a
  dollar amount stipulated in the employers DFSP
  policy.

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BWC Post-Accident

• We do not require employers to order a
  post-accident test if all the following apply
• The injury was not serious even though off-site
  medical attention was required
• The nature of the injury is common to the
  employees job function
• There was no violation of work rules
• There was no reasonable suspicion indicated by
  the accident investigation

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Ohio Law

• Reasonable suspicion testing shall also include
  incident-based accident or unsafe practice
  testing wherein employees involved in on-the-job
  accidents or who engage in unsafe on-duty
  job-related activities that pose a danger to
  themselves, to others, or the overall operation
  of the agency may be subject to testing.
• Employees subject to federal testing procedures
  will submit to federal post-accident testing as
  required by federal regulations
  
• (OAC 123 1-76-10 (d))

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Rebuttable Presumption

• The "rebuttable presumption law (4123.54)
  precludes employees seeking workers' compensation
  benefits and who test positive for illegal or
  non-prescribed drugs or alcohol. Once the
  employer proves the employee received a positive
  result on a substance abuse test, or refuses to
  submit to the test, the employee will be
  disqualified from receiving workers' compensation
  benefits unless he or she demonstrates the injury
  was not caused by these substances.

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(Continued)

• The substance abuse test, however, may not be
  administered automatically following an injury on
  the job. It may be administered under workers'
  compensation law only (1) where the employer had
  "reasonable cause" to suspect that the employee
  may be intoxicated or under the influence of a
  controlled substance not prescribed by the
  employee's physician ("reasonable cause" is
  broadly defined in the statute), (2) at the
  request of a police officer under the motor
  vehicle code provision giving implied consent for
  drug and alcohol testing, or (3) at the request
  of an independent licensed physician (neither the
  police officer or the physician may respond to
  the employer's request to perform the test).

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Post-Accident Recommendations

• Review all injury related policy to assure policy
  will not be interpreted as to deter injury
  reporting.
• Have policy for when post-accident is done and
  apply uniformly (OAC 123 1-76-10 (d))
• Ensure employees are never told If you report it
  as work related, you will need to take a drug
  test.
• Improve documentation of any reasonable cause at
  time of injury

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Medical Marijuana, a complicated matter

• We have no other recreational medications
• We have no other medications that are allowed
  to make medical claims without stringent FDA
  trials
• Many listed medical conditions are fully
  subjective (ie Fibromyalgia, IBS)

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Medical Marijuana, A Complicated History

• June 1991 - Federal Government Suspends
  Compassionate Use Medical Marijuana Program
• While a small number of patients already
  receiving marijuana will continue to do so, new
  applicants will be encouraged to try synthetic
  forms of delta-9-THC, the psychoactive ingredient
  in marijuana, rather than the weed itself

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Medical Marijuana, A Complicated History

• In March 1993, the American Medical Student
  Association which represented 48,000 med
  students and residents. AMSA delegates
  unanimously endorsed a statement calling on the
  Attorney General Janet Reno to abide by the 1988
  recommendation of Judge Young and move Cannabis
  to Schedule 2
• July 1999 - Marinol Moved to
  Schedule III to Increase Availability
  to Patients

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Medical Marijuana, A Complicated History

• 1996 CA Legalized Medical Marijuana
• Apr. 20, 2006, The FDA states that "there is
  currently sound evidence that smoked marijuana is
  harmful. A past evaluation by several Department
  of Health and Human Services (HHS) agencies...
  concluded that no sound scientific studies
  supported medical use of marijuana
• 2012 - LA City Council Bans (762) Medical
  Marijuana Dispensaries in Unanimous Vote

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Medical Marijuana
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Marijuana in Ohio

• Ohio Marijuana Legalization Initiative was an
  Ohio initiated constitutional amendment on the
  ballot for November 3, 2015, where it was
  defeated (63) Voting yes would have legalized
  the limited sale and use of marijuana and created
  10 facilities with exclusive commercial rights to
  grow marijuana.

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Marijuana in Ohio-SB 523

• Current signed legislation
• Authorizes a licensed physician to recommend
  medical marijuana to an individual diagnosed
  with one or more of 20 qualifying conditions
  or diseases.
• Legally consume medical marijuana dispensed as
  oil, edibles, and patches.
• Until Ohio's dispensaries are up and
  running, Ohioans must travel to other states to
  obtain medical marijuana.

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Medical Marijuana in Ohio

• Qualifying medical conditions
• Patients qualify if they have the following
  conditions
• HIV/AIDS
• Alzheimer's Disease
• Amyotrophic Lateral Sclerosis (ALS)
• Cancer
• Chronic Traumatic Encephalopathy (CTE)
• Crohn's Disease
• Epilepsy or another seizure disorder
• Fibromyalgia
• Glaucoma
• Inflammatory bowel disease

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Medical Marijuana in Ohio

• Qualifying medical conditions (continued)
• Hepatitis C
• Multiple Sclerosis
• Pain that is chronic, severe, and intractable
• Parkinson's disease
• Post Traumatic Stress Disorder
• Sickle Cell Anemia
• Spinal Cord disease or injury
• Tourette's Syndrome
• Traumatic Brain Injury
• Ulcerative Colitis.

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Marijuana in Ohio-SB 523

• A nine-member medical marijuana commission would
  write rules and regulations for the program
  within two years of the bill becoming law.
• The state would issue licenses for growing,
  testing, processing, and selling marijuana.
• Municipalities can decide to ban marijuana
  businesses.

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Employer issues SB523

• The administrator of workers' compensation may
  still grant rebates and discounts on premium
  rates to employers that participate in a
  drug-free workplace program and
• An employer maintains the right to defend against
  workers' compensation claims where use of medical
  marijuana contributes to or results in injury.
  (rebuttable presumption)

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Employer issues SB523

• Employers are not required to permit or
  accommodate an employee's use, possession, or
  distribution of medical marijuana.
• Employers could still maintain drug-free
  workplace policies, and patients fired for
  marijuana use would be ineligible for
  unemployment compensation.
• Cant sue employer for an adverse employment
  action.

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Drug screening issues

• If someone takes a prescribed medication for a
  valid medical condition, MRO may review that as
  negative and person likely ADA protected
• Not true for Marijuana. Positive is still
  positive even with a prescription
• Under the new Ohio law, employers have the option
  to prohibit medical marijuana use or to treat
  medical marijuana similar to the way they treat
  the use of legally prescribed drugs.

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Scott Short, MDsshort_at_wilsonhealth.org
Questions/Discussion.

• OSHAs final recordkeeping rule, Improve
  Tracking of Workplace Injuries and Illnesses,
  was published in the Federal Register May 12,
  2016.