US transportation workers to face testing for prescription opioids next year Opiods added to Safety Sensitive Employee Drug testing Employee Assistance Program should be emphasized
Secretary Chao, on November 13, 2017, announced that her Department issued a final rule that expands its current drug testing panel to include certain semi-synthetic opioids (i.e., hydrocodone, hydromorphone, oxymorphone, and oxycodone) for safety-sensitive employees subject to DOT modal administrations’ regulations, like the FAA. She stated:
“The opioid crisis is a threat to public safety when it involves safety-sensitive employees involved in the operation of any kind of vehicle or transport…The ability to test for a broader range of opioids will advance transportation safety significantly and provide another deterrence to opioid abuse, which will better protect the public and ultimately save lives.”
The specific rule was issued as an NPRM on January 23, 2017.Comments, not an inordinate number thereof, were submitted by March 24, 2017. Given the importance of the opioid crisis, one might have expected a final rule well before the date on which it was issued.
In the intervening months, aviation saw at least two events which provided ample proof that our professionals were subject to this horrible problem.
In March, about the time of the closing of the comment period, Spirit Airlines Captain Brian Halye, 36, and wife Courtney, 34, died due to opioid drug overdoses. His airline noted that the Captain was subject to random drug testing, and the reporter quoted from the investigating police that “the deaths appear to be drug-related and are consistent with a heroin or fentanyl overdose.”
In October, the NTSB found that Benadryl, sedatives and opioids were found in the system of hot air balloon pilot, Skip Nichols, who was responsible for the fatal (16 dead) crash in Lockhart, TX. He was not subject to 14 CFR Part §61.15 or 14 CFR Part 120, Subpart E. Nichols had 3 DUI and 3 drug possession convictions, for which he had been imprisoned.
These are obviously but two of a much longer list of similar problems, any or all of which might have served as a catalyst for issuing a Final Rule.
It appears that President Trump’s Announcement of an Opioid Crisis may have caused the rule writers (DOT and OMB/OIRA) to promulgate, post haste, the necessary Federal Register , effective January 23,2017. The President commented:
“The best way to prevent drug addiction and overdose is to prevent people from abusing drugs in the first place. If they don’t start, they won’t have a problem.”
While prevention may be an effective policy to emphasize, there is not enough commentary about the fact that it is quite possible that safety-related aviation professionals, subject to 14 CFR § 120.105, already addicted, can get immediate help.
YES, when they are subject to random (§ 120.109(b)) or for cause testing (§ 120.109(d) or post-accident testing (§ 120.109(c)) or a number of other triggering events, and if the test is positive for the prohibited drugs, he/she must be removed from duty (2nd violation-terminated). The regulations prescribe some specific consequences for a variety of scenarios.
BUT, perhaps the Secretary and the President should have mentioned what is considered by many to be the most effective, proactive strategy—Employee Assistance Programs. FAR § 120.115 defines what the certificate holders shall provide for their employees. The goal of EAP is preventing and intervening without stigma. A holistic employer, regulated or not, offers this method of preserving its most important asset, the human beings who make their business successful.
The President and the Secretary used their platform to tell the public about what they are doing in response to the crisis, to assure safety for all and especially travelers. It is unfortunate that neither choose to take a minute out of their announcements to remind those who are trapped by this opioid scourge, that EAP provides an avenue of immediate medical help.
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