In safety-sensitive industries such as transportation, drug and alcohol use can become a defined safety issue that requires employers to determine “fitness for duty”.
A good employee assistance plan is key to properly addressing drug and alcohol problems, and to referring the employee for proper treatment.
But does it do enough?
“Alcohol and drug prevalence rates are higher in society than we actually know about,”says Karen Seward, executive vicepresident with Morneau Shepell, which offers comprehensive employee assistance programs. And the trucking lifestyle can make some people more predisposed to mental health and drug addiction issues, she said.
“There’s a higher percentage of people who smoke, or use alcohol for relieving the stress. They are kept to a schedule that sometimes they have no control over. The big risk management issue for the transportation industry is the safety of others. That’s the bigger difference in duty to accommodate,” said Seward.
While there are different levels of drug and alcohol use, actual addiction is defined when three of seven criteria, listed in the Diagnostic and Statistical Manual of mental disorders, have been present for over a year.
Most important are the criteria of “tolerance” (having to use more and more to get the same effect) and “withdrawals” (a compilation of symptoms specific to each class of drugs, that a patient would experience if their drug of choice is stopped), noted Dr. Michael Varenbut, an Ontario specialist in addiction and sleep apnea.
“Additional criteria are things such as using a drug more than it’s intended, having others telling you to quit, spending more time or money obtaining the drug or using the drug,” he says.
“Absolutely any big company in a safety related profession is going to have a policy vetted by their lawyers. Where the problems are coming up are for the smaller organizations. Sometimes they will just download something off the Internet and that is going to get them in trouble with drugs because drug addiction is recognized as a disability in Canada,” warns Aaron Rousseau, a lawyer with Rubin Thomlinson.
“The law is clear that there is no problem with requiring drug or alcohol testing in a post accident or near miss situation. The controversy arises more often around what happens in a situation of random testing — not right after an accident but what happens down the road. The danger for employers is not making an individualized assessment and going too far too fast,” adds Rousseau.
But even in companies with entrenched policies, issues can and do arise.
For example, in the summer of 2011 a major US truck line was sued by the US Equal Employment Opportunity Commission (EEOC),for violating the Americans with Disabilities Act when a company driver who self-reported an alcohol problem, was suspended from his position, and allegedly told he would not be able to return to driving, even upon successful completion of a counseling program.
In the fall of 2011, The Toronto Transit Commission (TTC) approved a proposal to start conducting random drug and alcohol testing of its employees. Its prior “fitness for duty” policy had been to test employees in “safety sensitive” positions, before hiring, and when there was a reasonable reason to suspect impairment, such as after an incident or after substance abuse treatment. The decision came after a TTC bus driver was charged with criminal negligence causing death and possession of marijuana in an August, 2011 accident that killed a 43-year-old woman and injured 13 other passengers.
It’s a tougher approach that is widely in evidence in US jurisdictions.
In May 2011 a bipartisan bill was introduced called “the Safe Roads Act” that would create a national drug clearinghouse database to store all commercial motor vehicle operators’ positive drug and alcohol tests results and records of refusals to take the tests.
The American Trucking Association supports the bill, which it said “will address a well-known loophole in the federal drug and alcohol testing requirements for commercial drivers.”
Ted Shults, Chairman of the American Association of Medical Review Officers (AAMRO), and the American Board of Forensic Toxicology, told Transportation Media that “a closer collaboration between the MRO and medical examination function will be helpful. What is also critically important is that all medical examinations include a search of state prescription drug databases by DOT medical examiners and MROs to see how many prescriptions a driver is getting. It is often the most important and sometimes shocking piece of information that is nearly impossible for MROs and Medical Examiners to obtain the way the various laws were set up. If an MRO or examining physician sees that a driver has 10 doctors prescribing opiates, stimulants or sedatives, that is all you need to know in that case.”
Data from the Federal Motor Carrier Safety Association revealed that more than 70% of compliance reviews conducted since 2001 and more than 40% of safety audits conducted since 2003 found violations of drug testing regulations, including finding that carriers had no drug testing program at all.
In July 2011, Washington-based Gordon Trucking began drug screening all job applicants via hair samples “with the goal of reducing new driver accidents within the first crucial months of employment.”
According to Scott Manthey, vice president of safety and compliance for Gordon Trucking, “we feel that a urine test combined with the longer timeframe of a hair test offers one the best possible screening tools. We have concluded that this aids in selecting some of the safest and most professional drivers on the road,” he says.
The tests aim to address the problem of urine test fraud and job-hopping, where a candidate who tests positive for one carrier is fired, quits, or is not hired, but then subsequently tests negative on a pre-employment test for another carrier, without disclosing the previous failed drug test.
“Research has shown most accidents occur within the first 90-120 days of employment. Once a driver makes it through that initial period the risk of an accident drops dramatically. Beyond the candidates who have tested positive, we also routinely have candidates dismiss themselves from orientation classes once they confirm a hair test will be conducted,” said Manthey, who also stated his support for a drug test clearinghouse proposal, to be expanded to include any drug or alcohol screen that has been medically reviewed.
“There is a very significant increase (in hair testing) under their own company authority because of the use of the amount of adulterants available for urine testing so that employers are not believing the results of urine test,” said Bill Corl, CEO of Omega Laboratories. Hair testing can prove more accurate for some drugs that cannot be detected in urine for more than a few days.
“That kind of gets a little tricky with safety sensitive positions — once hired, employers have the right to find out if they are abusing a prescription. Many of the employers use a medical review officer, and if there is a positive result the officer contacts the donor to find out if they have had treatment for the drug or alcohol,” said Corl.
Substance abuse professionals are increasingly tasked with making determinations that go beyond the scope of their defined duties. This is becoming more of an issue as the workforce ages and as more medications, such as sleep medications and anti-depressants, are introduced which may interfere with the results of testing.
“In regulated drug testing the role of the Medical Review Officer’s function is defined by regulation. The MRO acts as an interface bet
ween the donor of a specimen and the employer. The key MRO role is to determine if a “positive” confirmed laboratory result can be attributed to the legitimate use of a prescription drug – or not. Even if the drug use is “legal” there is the secondary question if the medical information provided to the MRO raises a “fitness” or safety concern. That is one of the areas that is getting more complex. The other area of increasing complexity is the management of the integrity of the specimens. Over the past two decades a cottage industry of manufactures of artificial urine and chemical concoctions to adulterate the specimen has grown up around drug testing and has continually threatened the integrity and efficacy of the whole program (not to mention public safety),” says Shults.
“All employers who have safety sensitive operations are struggling with this issue. It is much more difficult to determine whether a drug like an opiate or multiple drugs like opiates, stimulant and sedative use presents legitimate use, abuse, addiction, dependency and the magnitude of the safety risks involved. These are diagnostic decisions that require professional judgment. Unlike looking at alcohol use, the relationship between drug levels and impairment is complex and often not conclusive. Unfortunately, the unsettling truth is that many workers in the transportation field are getting older, suffer from chronic medical conditions, and are taking a multitude of legal prescription drugs that may affect performance. It is true that doctors can clearly sort out the very healthy from the very unhealthy and but there is a lot of gray area in the science and data. I would like to suggest that physicians and employers be given insulation from threats of disability lawsuits as a result of providing a medical diagnosis that disqualifies a driver because of potential safety risks presented. I would like to see employers implement policies that allow for prescription drug use, but that prescription drug and underlying medical condition be reviewed at least on an annual basis,” he explains.
Ultimately, says Shults, drivers have responsibility for their safety in terms of drug use.
“What drivers should know, or be reminded of, is that when they are prescribed a controlled drug like amphetamine, opiate or sedative they must tell their treating physician that they are truck drivers and that the treating physician has to approve or clear them to work on these medications.
While minimum medical qualifications for drivers are constantly being updated, “there are no definitive criteria for predicting future performance in many cases, and we accept risk,” said Shults.
“We are still going to have the ‘grey’ areas and the balance between safety and allegations of disability or age discrimination is not easy to find,” he said.
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