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Non-DOT test, fitness-for-duty concerns

Posted: Sat Sep 17, 2011 3:37 pm
by Helent
I performed an MRO interview on a donor who tested positive for opiates in a random non-DOT drug test (12,000 ng/ml). In the interview, he divulged he had legal prescriptions for morphine and Percocet for chronic pain. He stated he took the medications only at night/after work. I explained the drug test would be verified negative but I would provide the employer with a note that the donor would need to be evaluated if performing safety-sensitive job duties. (This test was performed by an employer with a non-DOT drug policy stating that the MRO follows 49 Part 40 rules. Per DOT rules, 49 CFR ยง 40.327, the MRO has a duty to report medical information obtained as part of the verification process, if the information indicates a potential for a significant safety risk in performing safety sensitive job functions.)

This donor has a "safety-sensitive" job in that he is a contractor checking fire equipment in a large industrial plant. He happens to be a 14-year employee at his company that has the contract to perform the fire equipment checking. He did sign a consent for the drug test, but that consent does not address the divulging of medical information if there is perceived potential for safety risk by MRO. It is something I explain to each donor as I do the interview.

The donor lost his cool. He told me I was not to divulge any of that information to his employer and that I should just report the negative drug test; his meds were none of my business. The donor also threatened legal action should I divulge to employer any more than a negative drug test verification. I told him I would be agreeable to speaking with his physician and asking his prescribing physician's opinion re alternate meds or for a "safety ( OK to work on meds) letter" in lieu of his employer arranging for an evaluation. I also explained it was his employer's choice and that some employers would not take note of my statement. The donor remains insistent and threatening.

So I am taking some time to think about my options. And how much I can alternate my MRO hat with "occ doc doing FFD eval" hat in this verification.

This is my plan - I will write a letter requesting prescribing doctor to provide opinion regarding whether the donor has any restrictions in performing his job duties while on the medications and whether alternate medications may be considered. And if physician returns that note with OK - I will omit the FFD statement to employer. The donor may refuse to take the note to his doctor. He has already refused to let me speak with his physician. If he refuses to take the note to his physician : DO I

a) REPORT THE TEST AS NEGATIVE ( and not mention safety concern) - Note: I do not believe I can do that because of my responsibility to safety at the workplace.

b) REPORT THE TEST AS NEGATIVE ( and mention safety concern when donor has told me he will not give me permission) - and risk legal action as donor has threatened.

c) REPORT that "FINAL VERIFICATION is PENDING FURTHER INFORMATION"; In which case this individual cannot enter the job site to perform his job !! Also a problem.

Your thoughts and advice are very much appreciated. HT

Re: Non-DOT test, fitness-for-duty concerns

Posted: Sun Sep 18, 2011 3:23 pm
by Robert Swotinsky MD
Sorry about the donor's beligerence. His reaction might be a red flag for an as-yet-unidentified problem. I can speculate here: Was he was supposed to divulge his prescription medicines to his employer as part of a separate policy? Was he supposed to divulge them during his preemployment physical but didn't?

Because you're operating under the DOT model (and a good model it is), you're required to both inform the employer NOW about the safety issue and give the donor 5 days to have his prescribing doctor contact you in case the meds can be changed to something less mind-altering, e.g., a NSAID. You've already identified and acted, at least to some extent, on the perceived safety issue. So, follow through and notify the employer, now, that the test is negative and you've identified a safety issue that needs to be further addressed, e.g., by the local occ hlth physician. If the local occ hlth physician is you... good luck with that!

Re: Non-DOT test, fitness-for-duty concerns

Posted: Wed Feb 21, 2018 2:36 pm
by neboccdoc
I am reviewing a non DOT random that was positive for morphine 3,516 ng/ml. Employee is construction supervisor who drives company pick up. He has been with company 20 yrs. Was injured at work, falling from roof and landing on his feet fracturing both heels in 2011. Had multiple surgeries in 2013 and returned to work in 2014. Tells me that he was never told there was a concern for his fitness as they have always accomodated him in his recovery. Tells me he has been working with his doc trying multiple regimens for chronic pain since. Had been on Morphine ER 15 mg usually taken after work. Says he never felt impaired until he tried the morphine recently and he and his doc decided to switch back to percocet prn because he didnt tolerate morphine. He is thinking of having nerve ablations. Says he takes opiate and nsaids most nights. I told him I would report this as a negative with proof of prescription but that I had a safety concern as he was driving company truck. I asked him to have his prescriber call me to discuss. He said he would allow that but is concerned about not being taken off work if he can't drive the truck and said he never feels impaired at work or wouldn't work if he has too much pain. They have sccomodated him in many ways. He tells me when he was on percocet it never tested positive before. He is concerned if I report a safety issue. Thoughts.

Re: Non-DOT test, fitness-for-duty concerns

Posted: Wed Feb 21, 2018 10:18 pm
by Robert Swotinsky MD
It may be informative to find out the amount of opioids purchased each month. Would the treating provider print the PMP and share that printout with you? Will the driver release his fill log from the pharmacy where he purchases the morphine? I am not suggesting this to catch the driver in an "untruth," but instead to see if the amount of opioids purchased each month allows for a more definitive answer. If it is just 30 of the 15 mg morphine/month and very few Percocet, that's one thing. But, if it's 120 of the 15 mg morphine/month and 90 Percocet/month, that's another.

The donor's testimony (and the treating provider's testimony) that the donor isn't apparently impaired by opioids is not too helpful because the increased risk from use of opioids is not identifiable by clinical means, but it is nevertheless real. The MRO and medical examiner are in a tough spot. The MRO and medical examiner can assume the risk in this situation and clear the guy to work. But, if there is an accident and the guy is prescribed opioids, you know how the plaintiff's attorney will portray this, and what are you going to say? By the way, if the driver winds up on a non-opioid pain regimen, that's a good thing because (despite what the donor may want) opioids are typically a non-effective treatment for chronic, non-malignant pain.

Re: Non-DOT test, fitness-for-duty concerns

Posted: Thu Sep 19, 2019 8:07 am
by voicefamily
Good morning!

Got registered as of last night. This is a great site to have a deep core discussion opportunity. I am studying (regular readings plus a day and a half course pending) for the exam.

Regarding legal action threat: It is my opinion that what seems best for the public safety takes priority.

Delivering my concern regarding potential unsafe performance to employer - I will not be stopped by the threats of legal action. I will explain it to the employee as polite and soft as possible.

1. Taking a legal action. It is easy to say for the employee and "extremely hard and time consuming" to initiate, maintain and finalize to the jury trial if any. It is costly. For some it seems very costly. It is unlikely that any attorney will jump into this case without deep preliminary work. Contingency is unlikely. It is unlikely that the employee will have knowledge and experience to start it "Pro Se".

This is my personal experience of initiating a legal action against a large corp. (Consider it as a case study :) ) Later (almost a year and a half) I wished I would be able to stop it. I became busy after coming off my disability and literally had no time for depositions, etc. However, my attorney advised to continue case based on a solid safety concern grounds to present from my side and former employer' inaccurate documented statement.

2. Secondly, and most importantly, I believe that the judge or jury board will accept the position of safety concerns expressed by the MRO by a huge margin.