1. 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

2. 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

3. MIS DATA
* Partial data (90%)

4. MIS

7. MIS

9. MIS DATA
92%

10. MIS DATA

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

17. 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

18. 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.

19. Summary of Changes ODAPC List-Serve
All service agents REQUIRED to “subscribe”
Sign-up via
Need to be able to document evidence during audits / reviews
Save a copy of the confirmation

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

21. 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

22. 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®

23. “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

24. “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

25. 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

26. 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

27. 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

28. 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

29. 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

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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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.

40. 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

41. 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

42. 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

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

44. 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

45. 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

46. Common Names This Photo by Unknown Author is licensed under CC BY-SA12

47. Common Names 12

48. 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

49. 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

50. 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

51. 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

52. 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

53. 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

54. 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

55. 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

56. 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

57. 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

58. 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

59. 13 states of decriminalized
Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas)
Recreation
Medical
Decrim
Passed CBD 12

60. 13 states of decriminalized
Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas)
Recreation
Medical
Decrim
Passed CBD 12

61. 13 states of decriminalized
Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas)
Recreation
Medical
Decrim
Passed CBD 12

62. 13 states of decriminalized
Only 3 states have not done one of the following: (Idaho, South Dakota, Kansas)
Recreation
Medical
Decrim
Passed CBD 12

63. 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

64. 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

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

66. 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

67. 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

68. 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
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

69. 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

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

71. 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

72. 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

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

74. 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

75. 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

76. 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

77. 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

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

79. 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

80. Impairment Marijuana Significantly Impairs Judgement
Motor Coordination
Reaction Time

81. 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

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

83. Workplace Impact
RLS & Associates, Inc. 12

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

85. 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

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

87. Questions?

88. Resources USDOT - ODAPC Resources
Final Rule:
Brief summary of changes:
CCF Notice:
Policy Notice:
Employee Notice:

89. Resources Other Resources
National RTAP Recorded Webinar (Part 40 Update):
National RTAP Recorded Webinar (Fitness For Duty):
A more in-depth look at key factors in developing a fitness-for-duty policy

90. Robbie Sarles RLS & Associates, Inc. rsarles@rlsandassoc
Robbie Sarles RLS & Associates, Inc. (937)