35th Anniversary Spring Conference Community Transit Better Together OPIOIDS & MARIJUANA: AN UPDATE ON THE IMPACT TO USDOT DRUG & ALCOHOL TESTING PROGRAMS 35th Anniversary Spring Conference Community Transit Better Together Robbie L. Sarles, President, RLS & Associates, Inc. RLS & Associates, Inc. 1

New Challenges Trends in Use and Positivity Rates Consequences of Recent Regulatory Change Expansion of Opioid Panel and Safety Risks Marijuana Trends and Impact on the Workforce

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FTA Random testing rates 2018 2019 Drug Testing 25% 50% Alcohol Testing 10%

Random Testing Rates Random DRUG testing rate has increased to 50% Effective: Jan 1, 2019 Applicability: All employees covered by FTA drug & alcohol regulations Random ALCOHOL testing rate remains the same – 10% May require FTA D&A Policy revision REMEMBER: If your random pool “mixes” employees covered by different USDOT – Agencies, you must test entire pool at highest rates

2018 Regulatory Changes “The What?” “The When?” The Who?” 49 CFR Part 40 is USDOT’s D&A regulation covering testing procedures updated “The When?” Nov 2017 – Final Rule published in Federal Register Jan 1, 2018 – Effective Date for all changes The Who?” Applicable to entire DOT industry (FTA, FMCSA, FRA, FAA, PHMSA, USCG, etc.) ANYONE subject to 49 CFR Part 40 Employers, MROs, SAPs, Collection Sites, etc.

Summary of Changes ODAPC List-Serve All service agents REQUIRED to “subscribe” Sign-up via https://www.transportation.gov/odapc/get-odapc-email-updates Need to be able to document evidence during audits / reviews Save a copy of the confirmation email

Summary of Changes Drug Testing Panel Modifications (continued) “MDA” added to screening test “MDEA” removed

Summary of Changes MRO Verification Process Clarification of the term “prescription” Prescription (Rx) must be consistent with Controlled Substances Act (CSA) MRO-ordered additional testing Authorized without prior ODAPC consent Meth false positives due to Rx/OTC meds Illicit THC vs. Marinol

Opioid Panel Drug Testing Panel Modifications “Opiate” changes to “Opioid” Four new opioids added to testing panel Chemical Name Common Brand Names Hydrocodone Norco® ; Vicodin® ; Lortab® Hydromorphone Dilaudid® ; Exalgo® Oxycodone Oxycontin® ; Roxicodone® ; Percocet® Oxymorphone Opana®

“Safety Risk” Determination Process MRO Rx Verification Process MRO release of information – Medically unqualified / Significant safety risk Step 1 – Verify test result Step 2 - Initial MRO determination MRO notifies employee of medically unqualified / significant safety risk Step 3 - Five-days for prescribing physician to contact MRO Employee facilitates contact

“Safety Risk” Determination Process MRO Rx Verification Process (continued) MRO release of information – Medically unqualified / Significant safety risk (continued) Step 4 – Prescribing physician statement to MRO Step 5 – Possible employer notification Based on outcome of Steps 1 - 4

Industry Response to Today’s Challenges NOT Required by USDOT, FTA or Any Other Modal Administration NOT A Regulatory Requirement Addresses Issues That Might Already Be Covered Under Employer’s Own Company/Agency Authority ATTENTION: ANY TEXT WHICH IS BLUE IS MEANT TO INDICATE THAT IT IS NOT A USDOT, OR USDOT-AGENCY REQUIREMENT/REGULATION. THESE PROVISIONS WOULD BE BEST-PRACTICES/SUGGESTIONS AND UNDER THE AUTHORITY OF THE EMPLOYER

Workplace Impact Policy Revisions – BEST PRACTICES (NOT REQUIRED BY USDOT) If your policy currently has a section on Rx/OTC medication use Update to address MRO determinations of “Medically Unqualified / Significant Safety Risk” If your policy DOES NOT have a Rx/OTC medication use section Consider adding a short paragraph

Workplace Impact “Medically Unqualified / Significant Safety Risk” Final word is the MRO’s DISCRETION What are the REAL implications? Access to prescribing physician Expiration of Rx No recent contact to prescribing physician What to do when/if you get the phone call This is 100% employer’s determination (No USDOT regulation) Unless USDOT - CDL medical standards apply

Workplace Impact “Medically Unqualified / Significant Safety Risk” Employers should be pro-active in creating a “Fitness-for-duty/Wellness” policy (NOT A USDOT REGULATION) Legal/Union/Collective Bargaining Concerns

Implications MRO Approach To Decision Making Process Is Not Defined In the Regulation MRO discretion based on medical judgement ODPAC Guidance Forthcoming MRO philosophy, assessment of liability and risk management practices will influence approach Case-by-case determination MRO Contact with Health Care Practitioner Can Be Contentious

Implications Need to Navigate Differing Medical Opinions MRO CDL Medical Examiner Prescribing Health Care Practioner Other

Implications Possible MRO Determinations Silent—No safety risk, no employer knowledge, no employer action Notification of safety issue—Employer action Follow procedure for CDL standard violation if appropriate Liability Considerations Human Resource Legal Considerations Collective Bargaining

Best Practice Proactively Discuss Philosophy and Procedures with MRO If MRO Philosophy Is Inconsistent with Employer Philosophy or Intent of Regulation, Identify New MRO If MRO Is Unwilling or Unable to Perform This Function, Identify New MRO Define MRO Safety Issue Notification Procedures, Documentation and Timeline Negotiate Cost of MRO Safety Assessment Do Not Accept Employee Medical File Dump From MRO

Implications Employee Facilitation of Prescribing Physician/MRO Contact Employees May Have Difficulty Accessing the Prescribing Physician In a Timely Manner If More Than 5 Days Are Needed To Obtain an Appointment or Otherwise Get In Contact The Prescribing Physician Is Unaware or Does Not Understand the Importance of the Contact Employee Has Had No Recent Contact or Ongoing Relationship with the Prescribing Physician Employee Does Not Know How to Facilitate the Contact Between the Physician and the MRO

Best Practice Assist Employees In Being Proactive Educate Employees on Safety Risks of Rx Provide A Summary of Regulatory Changes ODAPC Notice Review New/Revised Employer Policy Define Process and Provide Guidance On How to Notify Prescribing Physician to Contact MRO

Best Practice Encourage Employees to Obtain Updated Rx Current Rx Is More Than One Year Old Rx States “Take As Needed” For An Injury That Is No Longer Being Treated By the Prescribing Physician Employee Does Not Have an Ongoing Relationship with the Prescribing Physician ER/Urgent Care or Doc-in-a-Box Physicians

Best Practice Encourage Employees to Obtain Updated Rx (cont.) Revisit Treatment Options With Prescribing Physician for Chronic or Reoccurring Conditions To Minimize Safety Impacts While Not Compromising Medical Care Encourage Employees Using Opioids to Discuss Dosing Option with Prescribing Physician Timing Dosage Alternative Pain Management Options

Best Practice Address Possible Withdrawal Implications Illness/Injury Treatment Options Cold Turkey Withdrawal May Be Harmful to Employee and Create a More Significant Safety Risk Medical Assistance in Managing Possible Withdrawal

Best Practices Provide Employees with a Physician Rx Medical Authorization Form Job Description Highlighting Safety-Sensitive Duties Area for Prescribing Physician to Indicate Possible Safety Risks With Corresponding Restrictions, If Any Notification that Prescribing Physician May Be Contacted By MRO If A Safety Concern Exists

Best Practices Inform Applicants of Possible Prescribing Physician/MRO Contact Requirement Provide Explicit Directions As Early on In the Hiring Process As Possible Emphasize That a Valid Rx Does Not Necessarily Mean Disqualification. Rx Is Only An Issue When It Rises to the Level of Safety Risk.

Implications Employer’s Response Not Defined Assessment of Nature and Scope of Safety Risk Short-term, Long-term, Permanent Course of Action/Remedy Monitoring Process and Revaluation Medical Advisory and Decision Making Process Employee Consequences And Due Process Documentation, Record-keeping, and Confidentiality Liability and Risk Management

Employer Challenge Best Practice Is to Develop An Effective Rx Fitness-for-Duty Program A program that minimizes the associated impairment risks of taking legally and illegally obtained prescription medications while performing transit–related, safety-sensitive functions

Best Practice Establish a Fitness-for-Duty Program Policy Consequences Medical Review of Employees Deemed to be a Safety Risk Procedures Employee Education Documentation, Reporting, Confidentiality

Legalization of Marijuana Trends--Usage Trends—Potency/Consumption Workplace Impact Questions Contact Information

Marijuana Product of the cannabis (Sativa or Indica) plant Contains THC and other compounds THC is the main psychoactive chemical that produces the “high” CBD is another compound commonly sought after from the cannabis plant This Photo by Unknown Author is licensed under CC BY-SA 12

How Do People Use Marijuana? Methods of Use How Do People Use Marijuana? Smoke Joint, pipe, bong, blunt, etc. Vaporize Vaporizers, E-cigs, Vape-pens Collect THC in vapor, which is then inhaled instead of smoke Typically THC oil but can be leaf form as well Edibles Not just your **grandma’s** pot-brownie any more 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Common Names This Photo by Unknown Author is licensed under CC BY-SA 12

Common Names 12

Common Names Cannabis, Marijuana, Weed, Pot, and on and on and on and on…… Business industry leaning toward “Cannabis” Differ based on demographics, geography, type of product, etc. Curious observation: Legalization Increases = “Whacky” Names Decrease This Photo by Unknown Author is licensed under CC BY-SA 12

Illicit THC Potency Over Time 1970 = 1995 = 2000 = 2005 = 2010 = 2015 = Has THC in illicit marijuana gone UP or DOWN since 1970? 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Illicit THC Potency Over Time 1970 = <1% 1995 = ~ 4% 2000 = ~ 5% 2005 = ~ 8% 2010 = ~ 10% 2015 = ~ 13% Has THC in illicit marijuana gone UP or DOWN since 1970? Illicit THC Potency Over Time Recreational and Medical THC products are regularly found to be 20% - 30% THC THC concentrates can be 80%+ THC 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Recreational, Medical and Decriminalized What does “Recreational” Marijuana mean? How many states have passed “Recreational”? 10, plus D.C. What does “Medical” Marijuana mean? How many states have passed “Medical”? 33, plus D.C., Guam, and Puerto Rico What does “Decriminalized” Marijuana mean? What about CBD? 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Recreational, Medical and Decriminalized 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD Decriminalized Medical CBD 12

Cannabis Use Trends 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Cannabis Use Trends 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Current Trends in Workplace U.S. Workforce Testing Positive for Drugs Has Steadily Increased Over the Last Three Years to a 10 Year High – 4.0% Post Accident Positivity Increased 6.2 Percent in 2015 from 2014 Rates and Increased 30 Percent Since 2011 Source: Quest Diagnostics

Current Trends in Workplace Post Accident Positivity for Safety-Sensitive Workforce has Risen 22% Between 2011 and 2015 “The 2015 Findings Related to Post-Accident Testing Results Should be of Concern to Employers, Especially Those with Safety-Sensitive Employees” 2016 Results Are Expected to Be “Alarming” Source: Quest Diagnostics

Colorado Experience Marijuana-related Traffic Deaths Up 154% between 2006 and 2014 No Conclusion Regarding Causal Factors or Impairment Alcohol and Other Drugs Present in 66% of Accidents Proportion of Total Fatal Accidents Rose From 6.92% to 19.26% Emergency Room Visits “Likely Related” Up 77% between 2011 and 2014

Popularity and Acceptance Move From Obscurity to Mass Popularity Outward Acceptance and Expectation of Use Explicit Disregard for Public Consumption Prohibitions Unknowing Consumption Prevalent Smell Secondhand Smoke

13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Product Trends: Increased Potency Highly Potent THC Concentrations Extraordinarily High THC Levels 30-90% More Intense Physical and Psychological High Common Names Vary Regionally 710 (“OIL” flipped and spelled backward) Dabs (Dabbing) Wax; Honey; Honey Oil; Budder; Shatter

Product Trends: Edibles Edibles “coffees to cooked meat, purees to puddings” More and more varieties Low THC dosage edibles marketed toward “Beginners” Cannabis-infused products Distillate Oils (no odor/taste) Beverages Including both THC and CBD CBD removed from hemp from DEA’s Schedule 1 list, it is now regulated through USDA CocaCola is looking into making CBD sodas 12

Product Trends: Edibles High Potency Delayed Reaction Potential for Overdose Unknowing Consumption

Product Trends: Mainstreamed Products 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Basic Information 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Product Trends: CBD Cannabidiol (CBD): Many forms, oil is most popular Touted as “non-intoxicating/non-psychoactive” Medical Uses Heavily studied for its use in wide variety of health issues Most significant and reliable evidence showing effectiveness for epilepsy 2018 - FDA approved CBD medication for 2 limited health conditions CBD removed from hemp from DEA’s Schedule 1 list, it is now regulated through USDA CocaCola is looking into making CBD sodas 12

Product Trends: CBD Cannabidiol (CBD) (continued): Workplace impacts: “If I use CBD oil, will I test positive?” USDOT tests for THC, not CBD However, most CBD products have varying levels of remnant THC Some CBD products have up to 5% THC Other CBD products have 0.3% THC If THC is found above cut-off levels, USDOT test will always be positive (irrelevant if THC came from use of CBD product) CBD removed from hemp from DEA’s Schedule 1 list, it is now regulated through USDA CocaCola is looking into making CBD sodas 12

Product Trends: Marijuana Vape Pens Near Zero Odor of Marijuana May Seem Like Regular E-Cigarette

Product Trends: Marijuana Vape Pens Vaping continues to rise More than 30% of all cannabis sales in California in 2018 were vapes Lower perceived health risk Many state medical marijuana laws required vape or only 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Product Trends: Marijuana Vape Pens Vaping (continued) THC concentrates: Highly potent THC levels common names include Wax, shatter, 710, honey, budder “dabs” “dabbing” 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Trends “Weed Weddings” Edibles Cannabis bars Gift bags Designated areas for use “Bud and Breakfast” www.budandbreakfast.com CBD removed from hemp from DEA’s Schedule 1 list, it is now regulated through USDA CocaCola is looking into making CBD sodas 12

Federally Illegal THC is still Federally illegal… USDOT is a Federal testing “Prescription” / medical recommendation for Marijuana Will NOT save anyone from a USDOT positive test result For USDOT testing, prescriptions must be consistent with the Federally mandated “Controlled Substances Act” (CSA) Marijuana (THC) is Schedule 1 under CSA = CAN’T LEGALLY BE PRESCRIBED CBD removed from hemp from DEA’s Schedule 1 list, it is now regulated through USDA CocaCola is looking into making CBD sodas 12

Drug Testing Implications Federal Government Does Not Recognize Medical or Recreational Use of Marijuana Except for Marinol State Law Is Superseded by Federal Law Marijuana and Its Metabolites Remain on the DOT Drug Test Panel MROs Given Clear Direction—Marijuana Positives are to be Verified as Positive

Marijuana As Schedule I Drug Marijuana Remains a Schedule I Drug Pressure to Downgrade Met With Strong Opposition Specific Insufficient Evidence to Show that Marijuana’s Known Risks Outweigh Any Specific Benefits its Use Might Offer

Marijuana As Schedule I Drug Drug Enforcement Agency: Marijuana has No Currently Accepted Medical Use Chemistry is Not Known and Reproducible There Are No Adequate Safety Studies There Are No Adequate and Well-Controlled Studies Proving Efficacy The Drug is Not Accepted By Qualified Experts Scientific Evidence is Not Widely Available

Marijuana as Schedule I Drug More Research Needed Relaxed Restrictions on Research

Trends: Federal Changes? Possibility of lowering the CSA schedule of THC Currently it is Schedule 1 If this happens, big repercussions in D&A testing industry 13 states of decriminalized Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas) Recreation Medical Decrim Passed CBD 12

Impairment Marijuana Significantly Impairs Judgement Motor Coordination Reaction Time

Impairment No Accepted Quantification Levels Correlated to Impairment Fat Soluble--Stored in Fat For Extended Period of Time Quantification Levels Virtually Indefensible Unless Supported By Cognitive or Field Sobriety Tests Urine Testing Detects Presence, Not Impairment Blood Tests Require Warrant

Impairment Insufficient Research High Potency Levels Methods of Consumptions Weight Loss Implications Tolerance

Workplace Impact RLS & Associates, Inc. 12

Workplace Impact Drug Testing Implications Policy Issues Human Resource Issues Rider Policies Purchase, Sale and Use on Transit Property

Workplace Impact: Policy and Education USDOT tests for presence of drugs, NOT IMPAIRMENT Make this VERY clear in your policies and in your employee training Most employers and supervisors understand We are seeing MANY employees/applicants who don’t get it Employees have responsibility to avoid inadvertent consumption of THC edibles Especially if living in recreational state CBD removed from hemp from DEA’s Schedule 1 list, it is now regulated through USDA CocaCola is looking into making CBD sodas 12

Employer Response Employee Education Intended and Unintended Use Increase Drug Testing Budget

Questions?

Resources USDOT - ODAPC Resources Final Rule: https://www.gpo.gov/fdsys/pkg/FR-2017-11-13/pdf/2017-24397.pdf Brief summary of changes: https://www.transportation.gov/odapc/Part_40_Final_Rule_Summary_of_Changes CCF Notice: https://www.transportation.gov/odapc/Notice_CCF_December_2017 Policy Notice: https://www.transportation.gov/odapc/Part_40_DOT_Policies_Notice_2017 Employee Notice: https://www.transportation.gov/odapc/Part_40_DOT_Employee_Notice_2017

Resources Other Resources National RTAP Recorded Webinar (Part 40 Update): http://www.nationalrtap.org/Webinars#DrugAlcoholUpdate National RTAP Recorded Webinar (Fitness For Duty): http://www.nationalrtap.org/Webinars#fitnessforduty A more in-depth look at key factors in developing a fitness-for-duty policy

Robbie Sarles RLS & Associates, Inc. rsarles@rlsandassoc Robbie Sarles RLS & Associates, Inc. rsarles@rlsandassoc.com (937) 299-5007