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

2. -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

3. 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 • Doesn’t detect recent use so not for post-accident

4. 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

6. *Be Aware* • There are devices and agents used to falsify drug screens:

7. 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:

9. 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.

10. 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

11. 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

13. 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 • OSHA’s 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.

16. 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.

17. OSHA Update • Some suggested don’t 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?

18. 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

19. 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.

20. BWC Drug Free Safety Program BWC’s 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.

21. 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 employer’s DFSP policy. Non-vehicular damage in apparent excess of a dollar amount stipulated in the employer’s DFSP policy.

22. 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 employee’s job function There was no violation of work rules There was no reasonable suspicion indicated by the accident investigation”

23. 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))

24. 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.

25. (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).

26. 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

27. 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)

28. 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”

29. 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

30. 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

31. Medical Marijuana

32. 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.

33. 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.

34. 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

35. 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.

36. 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.

37. 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)

38. 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. • Can’t sue employer for an adverse employment action.

39. 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.

40. OSHA’s final recordkeeping rule, “Improve Tracking of Workplace Injuries and Illnesses,” was published in the Federal Register May 12, 2016. Scott Short, MDsshort@wilsonhealth.org Questions/Discussion…….