CBD Oil and the DOT

Below is a notice the issued February 18, 2020 from the Department of Transportation Office of Drug and Alcohol Policy and Compliance

DOT OFFICE OF DRUG AND ALCOHOL POLICY AND COMPLIANCE NOTICE

The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act. We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products. Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include: pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others. It is important for all employers and safety-sensitive employees to know:

1. The Department of Transportation requires testing for marijuana and not CBD.

2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”* Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label. **i

3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. This policy and compliance notice is not legally binding in its own right and will not be relied upon by the Department as a separate basis for affirmative enforcement action or other administrative penalty. Conformity with this policy and compliance notice is voluntary only and nonconformity will not affect rights and obligations under existing statutes and regulations. Safety-sensitive employees must continue to comply with the underlying regulatory requirements for drug testing, specified at 49 CFR part 40.

February 18, 2020

i* What You Need to Know (And What We’re Working to Find Out) About Products Containing Cannabis or Cannabis-derived Compounds, Including CBD: The FDA is working to answer questions about the science, safety, and quality of products containing cannabis and cannabis-derived compounds, particularly CBD.” https://www.fda.gov/consumers/consumer-updates/what-you-need-know-and-what-were-working-find-out-about-products-containing-cannabis-or-cannabis ** https://www.fda.gov/news-events/public-health-focus/warning-letters-and-test-results-cannabidiol-related-products

FMCSA Clearinghouse Information

Effective January 6, 2020, the Federal Motor Carrier Safety Administration (FMCSA) will require that all employers report certain drug and alcohol program violations and conduct electronic queries in the FMCSA Clearinghouse.

If you have not already done so, now is the time to register your company with the Clearinghouse. The process is relatively easy. Below is a link to get started with the registration process:

You can designate Mass Mobile Drug Testing as your C/TPA. This will identify us as your TPA for entering positive results into the Clearinghouse.

Below are some links to the Clearinghouse website:

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CBD OIL (Cannabidoil)

The federal rule is regarding CBD oil is quite specific, as stated in (49 CFR Part 40.151) the medical review is not permitted to “accept an assertion of consumption or other use of hemp or other nonprescription marijuana related products as a basis of verifying a marijuana test negative.”

As stated in a recent article by Joseph F. Whelan of DSI Medical, employees / applicants who test positive for THC will be in violation of the employer’s policy; regardless of it sourcing. CBD oil extracted from marijuana is receiving lots of attention lately as the cure all for an array of ailments, illnesses and pain. Further claims are made that the THC is removed and entirely safe. All the claims that THC has been extracted from products such as hemp, CBD oil, Cannabis vapor oils, etc. should not be given credibility nor create a false sense of security to the user. There is no definite scientific proven method of extraction of all THC. Manufacturers claims stipulating that all THC is removed, or the THC level is so low the user will not test positive are not proven.

Currently there are law suits against the cannabis product manufacturers resulting from purchasers of these products that have tested positive in workplace testing scenarios. They lost their jobs. In summary, employees are responsible for what they ingest, apply topically and the environments that they cohabitate. It is with strong emphasis that employees abstain from the use of any cannabis product as it could result in a positive substance abuse test and employment termination or rescinding of a job offer.

Department of Transportations Recent Changes to Federal Drug Testing Regulations

As you may or may not know, the Department of Transportation recently announced changes to the federal drug testing regulations. These changes are effective as of January 1, 2018 and are applicable to all DOT testing authorities. We suggest that you familiarize yourself with these changes. A link to the Dot website is provided below.

People that are performing jobs that are deemed to be safety sensitive will be tested for four additional  semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, oxymorphone). Some common names for these semi-synthetic opioids include OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid®, Exalgo®. Inclusion of these four semi-synthetic opioids is intended to help address the nationwide epidemic of opioid abuse.

The new DOT panel is as follows:

1)   Marijuana
2)   Cocaine
3)   Phencyclidine (PCP)
4)   Amphetamines (includes Methamphetamines, MDMA, MDA)
5)   Opioids
a.   Codeine/Morphine
b.   6-AM (heroin)
c.   Hydrocodone/Hydromorphone
d.   Oxycodone/Oxymorphone
The new panel removes methylenedioxyethylamphetamine (MDEA).

In addition, the employee now has 5 days to provide a valid prescription to the Medical Review Officer. A valid prescription will in most cases result in a negative drug test result.  

HOWEVER, if the Medical Review Officer (MRO) notices an unnatural amount of the drug, the MRO will likely want to ask more questions and it could result in a positive drug test. It may also result in a negative test with a Safety Sensitive Notification letter from the MRO. The impact of these prescription medications will likely increase the frequency you may receive “Safety Sensitive Notifications” from the Medical Review Officer. If employees have valid prescriptions for medications that trigger a positive, the MRO will reverse and report valid prescriptions as negative. However, if the medication raises a safety concern you will be informed. Prudent action on your part will be securing documentation from the prescribing physician. You will want to confirm the medical practitioner’s knowledge of the employee’s essential job functions and that there is no risk associated with the performance of the functions while taking this medication. 

These changes will increase the workload for the MROs because far more prescriptions will need to be verified. Also, the laboratories will have to analyze specimen for these additional substances. As a result, we expect that there will be a price increase from the labs and Medical Review Officers. As we move forward into next year we may need to pass along these increases to you.  

In addition, the DOT will also be issuing a new version of the Federal Custody and Control Form. These forms will be for use after January 1, 2018. The current forms may be used up until June 30, 2018. The changes to the forms will have very little impact on you or on your employees but everyone must conform to the new regulations and have the new forms in use by June 30, 2018.
  
Please use this link to the DOT website for more information.

So what should you be thinking about?

1)     How and when do I talk to my employees about the changes to the drug testing panel?
 
We suggest that you speak with your employees as soon as possible and make them aware of these changes. Information up front may avoid some issues going into the future. 
 
2)     How do I handle positive results for the new substances? What if my employee has a valid prescription for one of the drugs which will now be included in the testing? How do I handle Safety Sensitive notifications?
 
If Mass MDT provides your laboratory and MRO services, please give us a call or send us an email with your questions. We have a draft letter which may help. If we do not provide these services, you should contact your service provider.

3)     How/when do I get the new testing forms?
 
If Mass MDT provides your DOT testing forms we will take care of your testing forms. We will make sure that we issue new forms to you well before the June 30, 2018 deadline. If Mass MDT does not provide your forms, contact your provider for new forms.
 

4)     If my non-dot testing program mirrors the DOT panel should I change it to include the new substances?
 
If your current NON-DOT panel mirrors the DOT panel, we will automatically update your NON-DOT panel to match the new DOT panel. Given the severity of the opioids crisis in Massachusetts it is certainly recommended that you use the new panel but it is not required. If you do not want your NON-DOT lookalike panel changed you must contact us before January 1st.
 
5)     Do I need to update my DOT FMCSA Testing Policy?

Yes, your policy needs to be updated. If Mass MDT wrote your policy please call or send us an e-mail and we will send you the update. If Mass MDT did not write your policy, contact your provider.

There is a lot of new information for you to consider. If you have any concerns or questions, please feel free to contact us at the email or phone number below.

Medical Marijuana in the News

An important item is last week's court decision out of Colorado.  Last week, the Colorado State Supreme Court affirmed the lower court's decision regarding an employer's right to a drug free workplace.  In the case involving Dish Network, the court said that the company was in its legal rights to test and terminate an employee for off the job use of medical marijuana if the employee failed a drug test.  The court ruled that for an activity to be "lawful" it must be legal under both federal and Colorado law.  Since marijuana remains illegal under federal law an employer can prohibit it's use, even medical marijuana, in the workplace.  As we have said in the past, we are not attorneys, so please google for more information about the case and contact your legal counsel with any questions.

Will Passive Inhalation of Marijuana Cause a False Positive?

I was just asked this question last week. The donor was at a party and other people were smoking marijuana, not the donor. The donor was afraid that they may have inhaled some of the smoke. It is very unlikely that an individual could inhale enough marijuana smoke to produce a positive drug test at the cut off levels currently observed by most drug testing laboratories. The Donor may have some trace of the drug in their system but not enough to register a positive at a cutoff level of 50ng/ml.
The National Institutes of Health conducted passive inhalation experiments in which subjects were exposed to the smoke from 16 marijuana cigarettes for one hour a day for nearly a week. Further the subjects were in unventilated rooms with the smoke blowing directly in their faces, so much so they supposedly required googles to protect their eyes. Only after this kind of extreme exposure did anyone produce a positive drug test equivalent to that of someone who had smoked just one marijuana cigarettes. In studies conducted under less extreme conditions no drug test were positive for more than a few hours after exposure and the measured cannabinoid levels were low.

The Major Benefits of Drug Testing Your Massachusetts Employees

The statistics speak loud and clear.  Massachusetts employers need to protect themselves and their employees. The National Survey on Drug Use and Health (NSDUH) provides national and state-level data on the use of tobacco, alcohol, illicit drugs (including non-medical use of prescription drugs), and mental health in the United States. In the most recent survey, just under 9 percent of Massachusetts residents reported using illicit drugs in the past month. The national average was 8 percen. 1

Corporations who decide to use mobile drug testing to regularly screen their employees should know that this type of decision has many major benefits. Opting for regularly scheduled or random drug testing will effect your entire workplace positively in a variety of ways, from reducing overall costs for the company to effecting the morale of the workplace itself. This article will discuss the many benefits of opting to drug test your employees.
Reduce Costs Associated with Substance Abuse
Mobile drug testing can dramatically reduce the costs that are typically associated with substance abuse. For example, lost time due to call offs, workman’s compensation claims after accidents, lost productivity on the job due to substance abuse users making mistakes, showing up late, or otherwise causing delay all cost employers money. Random drug screening can dramatically cut down on this type of cost by eliminating substance abusers from the workplace. Mobile drug testing allows employers to find substance abusers among their employees, as well as to screen them from potential new hires and prevent them from entering the workforce in the first place.
Provide a Risk Free Workplace
Mobile drug testing also allows employers to minimize the risk to their employees by reducing the liability caused by substance abusers in the workforce. Drug abusers on the job can cause accidents, increase the risk of theft, and are generally an unknown variable. Eliminating this dynamic from the workplace allows other employees to relax and be more productive, knowing that they are not at risk. A relaxed employee is a happier employee, and therefore a more productive employee.
Positively Affect Morale
Drug use in the workplace tends to create a drug culture. This can mean secrecy, theft, and a constant need for lying, manipulation, and other covert behavior. If this has been the norm among your employees, random drug screening or mobile drug testing may positively affect morale in a dramatic manner. You may find that your employees are happier, more relaxed, and building more positive relationships with one another, once they know that they don’t have to hide or keep secrets for the drug users any longer.
Reduce Cost of Workmens’ Compensation
Workmens’ compensation claims are one of the most expensive parts of drug use in the workplace for employers. Adding random drug screening in the workplace can help limit the amount of money your company has to pay out in this type of compensation. In many states, by law, if drug use was involved in an accident or injury, you are no longer required to pay workman’s compensation. Using a mobile drug testing unit after each accident, you may be able to save your company thousands of dollars each year. Drug screenings allow you to demonstrate, clearly, who is at fault for each accident or injury, so that you can protect your company’s assets.
Keep in mind the hundreds of billions of dollars each year that are lost to workers working under the influence of drugs and alcohol, and you’ll have plenty of motivation for implementing regular mobile drug testing of your employees.

1 Source: Substance Abuse and Mental Health Services Administration - State Estimates of Substance Use from the 2007–2008 National Survey on Drug Use and Health: http://oas.samhsa.gov/2k8state/Cover.pdf

Steps to a Drug Free Workplace Policy

A Drug Free Workplace Policy is an important part of each company’s policies and procedure manuals.  Within that policy, you’ll want to outline when and how drug testing will take place. There are several things to consider when determining what’s right for your company, including frequency of testing, where to take collections, types of tests and lab work needed, utilization of medical review officers and methods of reporting. In this article, we focus on determining when to test. All employees must be treated the same to keep the credibility of the program and not allow for discrimination. As your compliance specialist you can ask me any questions so I can tailor a plan to your needs. Generally, I recommend the following types of testing protocol:
 

Pre-Employment: 

Prior to an employee working for your company you want them to have a drug test. Make sure they sign a consent form that states the company has a drug free workplace policy that requires drug testing. Most pre-employment drug tests are done at a facility which gives the candidate an opportunity to “pass” the test, yet about 6% still fail.

Random:

When done on-site this is your company’s number one defense in keeping a drug free workplace. It keeps employees on their toes because they are never sure when they will be tested.

NOTE:  When newly instituting random testing every company can expect drug positive rates of anywhere from 5 percent to 22 percent.

Post-Accident: 

Testing for both alcohol and drugs after an accident is recommended and can benefit your company enormously. Workers’ compensation claims are often denied to employees found under the influence. Ideally testing should occur within the first two hours but no more than eight hours following an acid

Reasonable Suspicion:

This can be the hardest form of testing your employees. Who is to say that someone is under the influence? Supervisor training for reasonable suspicion is an excellent way to help your managers/supervisors know what to look for. If you smell, see or hear something that gives clear evidence, have another party verify it, and if agreed, test immediately. Changes in a person’s character, moods or behavior over a period of time will also raise reasonable suspicion and testing should be considered.

Return to Duty:

 If an employee is returning to work after any form of leave longer than three months, we encourage a return to duty drug test. If they are returning after being suspended for drug or alcohol abuse a substance abuse professional will have a program for them that should include drug periodic testing.

Give me a call at 508-333-9555 or visit us on the web at www.massmdt.com

Can You Cheat a Drug Test?

The answer, generally speaking, is no. The Internet is swarming with popular ways to cheat a drug test, ranging from sample switching to sample alteration to making up clever excuses. Although some of these methods can work some of the time, none of them can reliably guarantee a negative test.
Sample Switching
One of the most common ways people try to beat a drug test is by switching their drug-laden urine sample with a clean sample. This may be synthetic or real urine bought off the Internet or provided by a friend. Sample switching is an ineffective method for two reasons. First, most tests involve measures designed to make switching difficult or impossible. Some testing companies ask the person being tested to urinate in front of a witness, while others require changing into a hospital gown to make smuggling items into the testing area difficult. Second, the test itself is sensitive enough to detect an old or synthetic sample, meaning that at the very best, switched samples are flagged for more testing.
Adulteration 
Various theories on cheating drug tests advise adding bleach, Visine, Drano or one of several other chemicals to the sample. Supposedly, this will clean out the THC and cause a negative test. Beyond the challenge of smuggling these chemicals into the testing area, they are ineffective when used. What these chemicals actually do is alter the pH level of the sample far outside normal human levels. Testing companies immediately know when samples have been altered, and will perform additional tests on the suspicious sample. Some people try to alter their urine by drinking vinegar or pickle juice, which is not only unhelpful but also causes violent diarrhea.
Dilution
In order to test positive, a urine sample must have a THC level above a certain threshold. The theory behind dilution is that drinking large amounts of water or juice will add more fluid to the urine, thus reducing the THC concentration. Dilution really does lower the amount of THC in a urine sample, but it also dilutes other chemicals typically found in urine. The testing company knows this and carefully screens each sample for signs of deliberate dilution. A particularly dilute sample may be subject to more intensive testing, or the person who provided the sample may be called in for another test with little time to prepare.
Excuses
Some people try to explain away a positive test by claiming to be passive users. Perhaps they accidentally inhaled some marijuana at a party or rock concert. Others try to get out of the test by eating poppy seed muffins, which contain trace amounts of opiates. Modern drug tests, though, set a threshold for a positive test that is far above what could appear in a casual or accidental user’s urine. Anyone who deliberately uses drugs will test positive, and these excuses will not be seen as valid explanations. Conversely, people who really are passive or accidental users have nothing to worry about, since their THC levels are below the minimum threshold for a positive test.
People have tried all of these methods and more to cheat on drug tests for years, and testing companies know every trick in the proverbial book. They have devised drug tests sensitive and secure enough to beat every one of these methods time and again. Although it is remotely possible to beat the test on occasion, no method of cheating can guarantee a negative test. Anyone who continues to use drugs and continues to be tested will get caught, sooner rather than later. The only one hundred percent effective way to guarantee a negative drug test is to stop using drugs

Instant vs Lab based Testing

 

You might be asking, “is there a difference?”  I thought a test was a test. Like cars, not all tests are the same.  Some are fast and not made to withstand everyday bumps and others move slower, but stand up to the rigors of everyday use.  When it comes to oral fluid and urinalysis there are two types of drug tests in common practice.

The first is known as “Instant,” “Rapid”, or “Point of Collection” testing.  These tests are performed at the collection site by the screener or collector who utilizes an instant cup, dip stick, or swap that generally returns results in three to five minutes. The pros, the test is fast and economical.  The cons, the test can return false “positive” results; due to a bad device, over the counter and prescription medications taken. Also, instant testing is not widely accepted in courts and not approved for Department of Transportation required testing.

The second type of drug testing is Laboratory based testing.  Laboratory based testing is recognized as the most reliable and accurate type of testing. Lab based testing is conducted in a “Federally Certified Laboratory”, staffed with Toxicologists, Certifying Scientists, and Medical Doctors who perform testing in a controlled setting.  The pros, the tests are widely accepted in legal matters and, with the help of Medical Review Officers, exclude over the counter and prescription drugs from the test results.  The cons, Lab based testing is slower and more expensive.  For more information about Medical Review Officers see the article in this issue.

These tests, like cars, are designed for specific applications.  An Instant test can be great for quick screening in the case of a post-accident or reasonable suspicion case, negative results mean the employee returns to work, non-negative results the employee goes home and the specimen is sent to the lab for confirmation.  Lab based testing is accurate, follows federally established levels, does not leave an employer guessing about his/her employee’s drug use, it is also the approved method to meet all DOT required testing. As we know, each situation is different and that is why we recommend employers consult with us at Mass Mobile Drug Testing.