Hello, everyone. I'm Dr. Carl Auerbach. I'm an occupational physician currently practicing in Albany, New York, as a staff physician at Emblem Health, Health at Work. We are part of the New York State Department of Health-sponsored Occupational Health Clinic Network. Now, I've practiced in a variety of occupational settings over the past 40-plus years, including hospital employee health, corporate settings, clinic settings, emergency rooms, and urgent care setting. So, I've seen a lot of issues of fitness to work and impaired employment situations. I'm going to try to bring some of that to bear. Now, you know that in medical training, you learn about normal situations. You learn what is normal, so as to be able to recognize the abnormal. You learn about abnormal and what causes abnormal. You learn about disease processes. But those are usually focused on organ systems and are not necessarily focused on function. When we're talking about function in the training that most of you have gotten at any level of medical care, we're talking about activities of daily living. Even if you're a physical medicine and rehab specialist, you're not going to necessarily learn more than activities of daily living. When you get into practice, you find that there's issues of impairment that go well beyond disease, issues of impairment that you're asked to comment upon in ways that seem to have nothing to do with medicine, but are nonetheless being asked to view as a medical provider. And this happens at all levels of medical provider. So, I hope that we'll be able to give you some information here that you can use and build upon to increase your knowledge of dealing with impaired employees. Now, I'm not representing anything more than my personal views, not my employer, ACOM, or the American Association of Nurse Practitioners, or any governmental group, but indeed, we'll be talking about those. I have no known conflicts, and I won't be discussing off-label use. There's always been issues of impairment. Their workplace dating back to prehistoric times when the work was chipping away at axes, or going after an animal of prey to protect the group or to get food. But, sometimes people got impaired, and sometimes it was the other group, sometimes it was your own group. So, we're not talking about something new in terms of impaired people in the workplace. And of course, in prehistoric times, the workplace was just surviving and living. Now, some impairment comes from within. We bring it upon ourselves, and we sometimes do things to ourselves that looking back once we are in a better place, we say, why did I do that? And again, that goes back well into prehistory. But, a lot of impairment actually is due to drugs, and that was one of the main areas I was asked to address. And the issues were felt to be something that had developed only recently with drug testing and increased use of opioids, and so forth. And so, we're not talking about something new. A recognition of substance abuse disorders, all of which we'll touch on in the rest of this presentation. But I want you to know that there's evidence that drug use and influence of drug in the workplace goes way back. And there are cave findings that show that people who most likely were on drugs provided graffiti over the better quality paintings that were underneath it. And we're not talking about graffiti from more current eras. We're talking about graffiti from the prehistoric times. So, there were some studies on this. I've referenced them there. You might want to look into them. So, drug use in ancient times is fairly well documented. Strands of hair from cave burial showed psychoactive substances. There was a material called mead, which is fermented honey, and it was first used around 8,000 BC, which is 10,000 plus years ago. It's been with us throughout history. A gentleman by the name of Mr. Manischewitz introduced beer and berry wines around 6,000 BC, or at least his ancestor did. And it's almost anything can be used to create a wine. The ancient Sumerians used opium starting 7,000 years ago. There's excellent proof that ancient Egyptian used alcohol for both recreational and ceremonial and medicine uses starting around 3,500 BC. China had medical and religious uses of marijuana back 3,000 BC or before. So, medical marijuana is not a new thing. It's just a current problem that many of us face in terms of trying to deal with impaired employees. In Europe, poppy seeds reached them in around 2,500 BC, and there's evidence of its use in Switzerland. And in literature, a product, and I'm going to have to defer to our Greek scholars, it's kykeon, I believe, was mentioned in the Iliad and the Odyssey, and it most likely had psychoactive components. Now, it's not only in the distant past that substance use became issues, and substance use in the workplace has always been an issue in all of these settings. But in the not distant past, companies may well have contributed to substance abuse. Even in my early days of practice, I saw employees who came in, who had well before issues of drug testing or alcohol testing, who told me that they had beer or wine during breaks, and that the company provided it. Breweries were particularly notorious about this. And they provided it to their employees with the claim that it helped for quality assurance of the product. But some of them were actually intoxicated when they came in. And we all know about the three martini lunch. It's well known, and it supposedly greased the wheels of business. Now, impairment can come from many causes. Substance use is certainly one of them. And it's the one that is often gaining the most press these days. But it can be from illegal drugs, which is the topic of most of the substance abuse programs, but it can be from legal drugs, which can be prescription or over the counter. And it can, of course, be from alcohol. But impairment can also occur from fatigue, from distraction. It can come from disease and illness. It can come from mental health and psychosocial factors, including stress, mental illness and its various forms, interpersonal work issues, and workplace crises. All of these can cause impairment. And it presents in various forms. It may present as absences, not being at work. This can be short or long term. And this is often the way it comes to medical attention when asked to fill out paperwork, or asked to help explain the absence, or asked to help determine if this absence is going to continue. But it can also come from what is called presenteeism, where the employees come to work when they shouldn't be there, resulting in poor performance and or errors. Now, admittedly, and think about yourself, how many times have you been at work as a medical professional, when you probably shouldn't have been there, because you are dedicated because you want to take care of your patients, but you felt lousy. And were you up to your full potential? I know I'm not when I feel that way. So, think about it yourself and presenteeism is becoming a more increasingly recognized situation. It can come from acting out, which means behaving badly. That could be passive or active. And it could be relatively benign or can be physically violent. Think of the active shooter situation. It can occur because you're turning inward. And that can come from depression, anxiety, a desire for self-harm, desire to hurt somebody else, but not being able to express it. And it can come from any of the full spectrum of physical or mental situations that a person can that a person can have. It can be a visual situation, a hearing situation, a movement, a strength, dexterity problem. It can be intellectual, emotional, or coping ability. It can be something you come to the workplace with. It can be something that develops over time as disease occurs. So, how do you deal with the employed employee? The focus should be on fitness for duty, not for the impairment itself. You want to be looking at, is this employee capable of doing their job? And what does it take to get them capable of doing their job? If you focus on impaired employee, or have a moral compass that's guiding you here, which is important to have, of course, but if you're making a moral decision or imposing your morality, it may not be the best way to approach the impaired employee. But frankly, that's harder than simply doing a drug test or an alcohol test. That's why many employers turn to drug or alcohol testing when somebody is not performing up at the level that they should be. Sometimes they simply terminate them, which is probably the worst thing you could do because it's not going to help them, the employer, it's not going to help the employee. They may tolerate it, and that can progress and get worse. Or the worst thing they can do is ignore it. And it's unfortunately all too common. Remember our brewing company? This is from a chat room. I would sack anyone who can't handle the drink in a heartbeat. But if they can't blow them out, don't give them a second chance. And again, this was in another chat room. There's real value in keeping the liquor cabinet open because it helps to show the employees taking pride in their work and can critique the product. And then still another, if you've got drunks lazing about, you need a better staff, not more regulations. This was in the face of the work-free drug place policies that were being promulgated in the late 80s and 90s. And regulations were being tossed out. Now impairment comes in many forms. Sleeping at the desk is probably one of the extremes. But I've been known to put my head down a number of times. I've been known when I was a resident to go grab a few Z's in the on-call room. I started at a time when an 80-hour work week was considered a short work week for the physicians training. Some of you may remember Libby's Law. If you're in New York State, you're hit by it. And if you're a training person, you're under its impact. Libby Zion was a 18-year-old student. It's well known in the newspapers and publicity. And there's a law which cited it. So I'm not revealing any confidences. Libby was an 18-year-old student who presented to an emergency room in an agitated state and was hospitalized under the care of a resident team. And as she progressed her care, they tried tranquilizers. But she got more and more agitated. She was on antidepressants. She became agitated. And they had to restrain her, something that we could do in those days. It was somewhat barbaric. And I hope none of you do it these days. But it still does, unfortunately, happen. I worked in emergency rooms in a much later era. And unfortunately, it still happened. While they restrained her, her temperature spiked to 107 degrees. And she died. Turned out that she was under the care of a resident team that had been on duty for over 24 hours. And they were fatigued. And they were sleeping at the desk, even if they weren't asleep. As a result, New York State passed regulations which prohibited a resident in training from working more than 80 hours in a week or more than 24 hours at a time without a rest period. And that was adopted by the training groups in 2003. So, the one good thing that came out of Libby's death was that we are now working at least more reasonable hours. But in other industries, this may not be the case. Many people work double shifts. Some people work triple shifts. Some people work in the gig economy and do second jobs. And they are impaired when they're working in their jobs. Well, you've got to be ready for impairment. It's critical to have policies in place and known to everyone before encountering a situation with an impaired worker. It's equally critical that this policy be known to everyone who might have to deal with the situation. Coworkers, managers, supervisors, human resources, everyone in the company. And they need to be reviewed periodically for content and training. I think that speaks for itself. And you need to know where it is and how to get to it. And you need to train on it. Active shooters is the most extreme. But it presents in other forms in terms of an intoxicated or seemingly intoxicated employee, in terms of an acting out employee, in terms of an argument or a fight. So, you need to know what the policy is, develop it properly, review it, and train on it. So, how do you deal with an impaired employee? Well, first of all, you have to educate the employees to recognize impairment in themselves. They are often the best person to recognize it. They're often the best person to recognize it early. Or people around them, friends, coworkers who see a change. But it's also important that everyone in the company be able to recognize impairment. But before impairment may be recognized, it's important to have a way for employees to seek care. And that could be the supervisor, the nurse, you, the APP, the physician, the human resource department, having an option for an employee assistance program, and to have that option for them to seek care before performance suffers greatly. Critical to treat impairment as a condition, not a moral issue. As I've said, you need to train supervisors to not only recognize, but to have a process for them to deal with it. It's critical to maintain confidentiality. The worst thing that can happen to a company where they have a program for stepping forward to seek care is that that confidentiality gets breached. And if the people in the company learn about that, they're not going to step forward. The policy has to include drug and alcohol because they're throughout our civilization, about our society. And by all means, you have to be consistent in the policy. Because it's not policies to deal with particular employees you want to get rid of, or seem to be troublemakers. It has to be a policy to improve the quality of performance in the entire company. So, what causes impairment? Well, some are birth related, some are developmental, some are from illness or accident, some are from fatigue or distraction, some are from stress. And some are from substances, illegal or illegal, as we've talked about. Many are from unknown reasons. We don't know what causes them. So, we have to be able to recognize the impact of impairment, not necessarily the cause. It can be permanent, such as birth or developmental. It could be temporary, extending over a period of days to months to years. Think about long COVID as it's evolving, where people are having problems from COVID with impairment and decreased capability to perform. Now, it's turning out for years in some situation. Think of accidents, the people who are out on impairment-related disability, and they don't come back for months or longer. It can be short term, it gets better when the fatigue improves or the stress subsides, but it can move into a persistent kind of situation. And in many instances, it can be instantaneous, an outburst, a physical act, a shooting, just walking out of the employment situation. But, you know, it's been my experience that the roots of such an event are usually possible to see if you're looking for them. So, one of your tasks as a medical provider working within occupational situations is to be able to recognize them. Birth or developmental are often called disabilities or handicap, and they can take forms both physical and mental. It's important to distinguish between the terms here, disabilities, handicapped, impairment, because these are very sensitive to many people. And the terms are often used as labels, and that's not good. According to the World Health Organization, impairment is any loss or abnormality of a psychosocial, physiologic, or anatomical structure or function. I remember a very impaired woman who came in to inspect a workplace, where a person couldn't do their job. She had one arm, one arm only. She was clearly impaired, but she was not disabled or handicapped in the least disability is a restriction or lack of ability to perform an activity. And it's outside of the range of normal considered for normal human activity, and a handicap results when an individual with an impairment cannot fulfill a normal life role, and that's typically when we're talking about activities of daily living, but it can extend on to issues of people who are now in a workplace setting and are unable to do it, even though it was thought they could birth or related disability impairment handicap, whatever you want to call it is not necessarily means a person cannot perform a job successfully, whether without accommodations. And you've probably learned about accommodations. The Americans with Disability Act, which is now protecting people with impairments disability handicap whatever you want to call them might better be called the Americans with impairments act, because that's what it's really talking about, because many people with impairments are quite capable of performing work. Fatigue. It often requires us to override natural sleep patterns when we're working 43% of workers are sleep deprived, and they put our risk for not doing their job properly. So, when we talk about night shift workers are night shift workers long shift or regular shift workers employers should realize that safety performance decreases as employers become tired. They should realize that 63% of night shift workers complain about sleep loss. They cost an employer up to $3,000 a year and employees on rotating shifts are particularly vulnerable, because they can't adapt their body clocks to alternate sleep patterns or can't get sleep during the day. And, nonetheless, most companies who have multiple shifts rotate their employees through these shifts. There are some ways to do that that are safer and better and cause less fatigue. But the best way which is often difficult to implement is to have a group of workers who are working day shift a group that's working evening shift and a group that's working night shift. Sometimes hard to get volunteers to work that night shift. So they rotate them. We're learning that through the issues of sleep apnea, people who are sleep deprived because they're waking up at night are really getting more illnesses and are having worse outcomes because of their sleep deprivation. Nonetheless, 30% of people, generally adults, report less than six hours of sleep a night, according to surveys. Chronic sleep deprivation causes depression, which can cause another cause of having impairment, obesity, cardiovascular disease, any number of illnesses, which can cause impairment. Employers lose $136 billion a year in health-related lost productivity due to fatigue alone. Now, in Washington, we're probably talking real dollars when we get to a little higher than that these days. But in my day, we used to call that a fair amount of money. More than 70 million Americans suffer from a sleep disorder. Distraction causes fatigue, things like gambling. They start to miss more and more work and less and less productivity, and they may resort to theft to support their gambling. It leads definitely to lost time away from work. Family members concerned become less productive, even if they're not the gambler. Deadlines are missed. Quality of work deteriorates. They develop physical and emotional problems, stress-related depression, anxiety, high blood pressure, which can lead to illness, time away from work, poor performance. They're at higher risk of suicide, which is the ultimate impairment. They see it as the only way out of those problems. I say they may commit fraud, theft, embezzlement, and they may gamble in the workplace. They may stay at work to finance their addiction to gambling. So gambling is one example of distractions that can cause impairment. And I will admit I'm an internet eBay addict. I can't help from buying toy trains, which is a hobby I have on eBay. And no matter how much I try, I can't stop. I don't do it at work. I hope I never will have to do it at work. But, you know, who knows, maybe something big will come up on eBay someday that I'll get an email about. So it impacts us in many different ways. Stress. Well, stress has always been present in the workplace. Remember, one of our early slides. HR teams know that employees experience job stress at some point in their career. This is almost universal. The way we work these days, the way we live these days, COVID. Nearly a third of employees are concerned about their stress level at a high level of concern. And productivity depends on good time management skills and ability to focus on the task. When job stress comes about, employees find it difficult to concentrate. They find it difficult to meet deadlines, utilize their creativity. And stress can trigger mental illness and other problems, including burnout, anxiety, depression and conflicts. And it can trigger things like active shooter situations. When you look at the background of many of these active shooter situations from the workplace, it was stress that was at the background. Substances used in a variety of ways, legally, illegally, per label, not per label, intermittently, chronically abused, addicted to. They all cause impairment. When substances are used per label, they can still have potential impairment impact. I mean, alcohol can be used. You know, the medical profession recommends a certain level of alcohol use in a period of time for good health. Some studies show alcohol can help health. I'm not sure those are holding up, but they are out there. But alcohol is a depressant and it's a dating. Another example is antihistamines. The first generation antihistamines, diphenhydramine, known to be very sedating. Even when they're used at the recommended dosage, sedatives, by their very definition, are sedating. But when you combine them with alcohol or other analgesics, they can be extremely impairing. And many analgesics, which we don't think about, carry side effect warnings of drowsiness or dizziness at recommended doses. And today, we are faced with the increasing problem of marijuana with all its known impairing effects. It's legal in many jurisdictions. It's being used medically in many jurisdictions. And it's being used increasingly recreational. That's not per label, except if you're a drug pusher. But it has really impairing effects. Legal medications can be used inappropriately. Every medication has a side effect. Dose is the important risk benefit. You've learned that in your medical training. A medication taken in a higher dose or more frequently or with other medications or for inappropriate indications can cause impairment. Remember Paracelsus, who is the father of toxicology. He said all medicines are poison. The only difference is the dose. And that's so very true. Intentional use of a medication to get an effect that is desired, other than what the medication was developed to do, can be real problematic. It may be to get a pleasurable effect, maybe to do self-harm. The opiates, opioids are certainly one of the categories where this happens. A large dose can cause self-harm or death. And it can lead to physical dependence and sometimes addiction. These are medications that are really problematic, even though they are legal. Illegal use, using somebody else's prescription. Incorrect dosage. Underage use of alcohol. The medical marijuana use for recreational purposes. Or just using it in a form not appropriate for that medication, such as taking a pill, crushing it, and shooting it up. Sure, it's a legal substance, but its use this way is illegal. Illegally used medications intermittently. Cocaine is certainly one of these. People use it to get the high, to get the ability to continue to function at a high level, even though they may not be functioning at a skill level that they think they are. Experimentation, getting a high or low. And again, the prescription drug used intermittently to get the desired effect. Chronic users repeat the use of a non-prescribed or illegal drug. Opioid. You might have gotten it legally, but now you're using it illegally for the high or pain relief. Antidepressants for anxiety, again, may be used chronically when they should have been used only short-term. Many providers in general care provide these medications that the label talks about being used short-term only, providing for chronic use. Marijuana is chronically used, especially underage. I just saw a study that says that emergency visits for underage use of marijuana, substance abuse disorders, have literally doubled over the past couple of years. And when an employer has a federal requirement, marijuana becomes a real issue because we don't know how to deal with it. Employers are faced with state laws that create problems for them in terms of even looking for it or not hiring somebody who is known to be a marijuana abuser. Marijuana results in frequent absences when under the influence, presenteeism, and the problems may be habituation rather than true addiction, but the problem of impairment is the same. I use the term habituation. What is it? It's a form of non-associated learning, which you have a response stimuli following a repeated, unreinforced presentation of that stimuli. Pavlov's dog in response to food is habituation. But many drugs include a desire for that drug and an habituation for it and a tolerance for it, and they become habituated. So what is drug abuse? On the other hand, it's excessive maladaptive use or addictive use physically of a drug for non-medical purpose, despite problems that arise for it. The addict continues to use a drug, even though they're going down the proverbial tubes. And the difference between a chronic user and an abuser is often a difficult line to determine. And almost any drug, approved legal or illegal, can be abused. And this maladaptive use results in a range of impairment, and they often come to the attention of the employer or medical at that time. As addiction goes on, we develop a problem, and it's a disease. Drug addiction is also known as substance use disorder, which is the better term for it, is a disease that affects their brain and behavior, and they cannot control their usage. Remember, alcohol, marijuana, even nicotine are considered drugs, and there are people who cannot control their use of it, and they become addicted, and they become impaired as a result. The physiologic signs of drug abuse are listed here. Anxiousness and attentive lack of motivation, irritability, angry outbursts, change in personality, mood swings, paranoia. These all can be drug related or drug addiction related problems. So what is your role as a medical provider here? You need to recognize through your observations that something is going on. You see people in many settings. They may present to you in ways that they don't present to their employer or their supervisor. They may confide in you. They may be already involved in a monitoring program, and you note an issue. You may be asked to evaluate. You may be involved in substance abuse testing. But what is not the role of a medical provider? In most circumstances, the medical provider is not the one to determine the performance. And you have to be very aware of attempts of supervisors or human resource people to try to make a problem, a medical problem rather than a performance problem, and push this over to the medical provider to make a decision that really should have been made by an HR person. Now, there's always a duty to safety. The medical provider often learns the things that they are told in confidence, and they must respect that confidence. But you need to find a way to prevent the problem from becoming a safety issue and take the appropriate steps. That may be to talk to the person and convince them to get help. It may be to indicate that they are incapable of performing their duty, even though you're not going to reveal why that is, and you may be pressured to do that. Some of you may remember a nurse who stood her ground and wouldn't let the hospital get access to the medical records of an individual who had a performance problem and was assigned to duties that were not appropriate, in their view, as an employer, that they couldn't accommodate. And they wanted to know why. The nurse stood her ground and unfortunately was fired. Our groups, certainly American College, and I believe the COHN group, and I believe perhaps the ANP came to her defense, and unfortunately, she was still fired. But you have to respect confidence, but you have to respect safety. Remember, occupational providers have a dual duty. You have a duty to the individual you are seeing, and you have a duty to the public safety. Now I'm going to shift gears a little bit. We've been talking about impairment in general. I'm going to shift gears to drug testing and issues related to drug testing. The technology has been around for several hundred years. It was used initially in toxicology. As early as 1836, it was used in a jury trial regarding arsenic detection. It's been used to test for substances in body fluids for over 100 years. Drug testing was developed in the early 60s to test in urine by Dr. Paul Stolle, whose name I had never heard about until I started this presentation. But he should be, if you have anything to do with drug testing, you should know that name. It was initially used to monitor for prescription drugs, but it was extended to overdose situations, impairment situations over the years. Drug testing programs began in the 1970s when the Army tested soldiers returning from Vietnam and found a lot of heroin. Based on that finding, they started testing active duty soldiers. The Department of Transportation and the Federal Railroad Administration looked at this and said, hey, we need to do the same. And they suggested policies because of the growing number of accidents that involve drug and alcohol. And in the late 80s, President Reagan suggested and put through a policy called the Drug-Free Workplace, which allowed for pre-employment drug testing and testing based on reasonable suspicion in federal workplaces. And Congress codified that in 1988 with the Drug-Free Workplace Act. That did not specifically require drug testing, but it did require that federal agencies and contractors and grantees certify they will provide a drug-free workplace as a precondition of receiving the contractor grant. Many employers felt that drug testing was the only way to implement this policy. Now, some of you may know about the alphabet soup of federal agencies. These are the various agencies that are out there and the plethora of initials that they have, sometimes the same ones for more than one agency. It drives me nuts, but we have to live with it. So the health and human services were concerned with drug use and drug abuse for the general program, as well as the agencies that did testing for federal employees. They're all housed in that department. The Department of Labor also has programs with drug abuse in the general workplace, in non-federal, and drug testing in general in the general workplace. The military continues its own drug testing programs. The Nuclear Regulatory Commission has its own programs, which are distinct from the Health and Human Service and the Department of Labor programs. Now, within the Department of Transportation, there are programs for transportation industries, the railroads, the truck drivers. Now, the in general situations under Health and Human Services has a whole history of developing programs to research and to understand drug abuse and to test. And SAMHSA, which was established in 1992, was established to make substance use and mental disorder information services and research more accessible. It's part of HHS, but the various programs for surveying and for monitoring were transferred to them not too long ago. Federal employees are under certain regulations. They're listed here. SAMHSA administers them. Any federal employee, even if it's not what you would think is a safety sensitive situation, if they're involved in law enforcement, national security, protection of life and property, public health and safety, which includes the federal medical facilities or others requiring a high degree of public trust, are subject to mandatory drug testing. And every federal employee coming in is, no matter what their division, is drug tested. The Department of Labor has several departments. One of them is the Mine Safety Health Administration, and they have been toying with drug testing for years. They have requirements to have drug testing program. They have substance screening policies, but they're not mandatory in most mining facilities. Some mine companies and some states have put in such programs. And there's a proposed rule published in 2008. None of this stuff moves fast. This was published in 2008. It was immediately challenged by the mine groups, both industries and the employee groups. And to my knowledge, it's not in existence. So drug testing in the military has been done for decades. And it initially was done on a small sample of applicants. But in 2017, the military expanded that to all applicants, recruits, academies, appointees, incoming officer candidates, ROTC. Everyone in the military now gets drug Everyone in the military now gets drug tested. And the drug panel expanded from the NIDA, National Institute of Drug Abuse, five-panel test, which is marijuana, cocaine, opiates, phencyclidine, and amphetamine, to a 26-panel test. Some companies have expanded that NIDA five, that same test. Nuclear industry conducts drug testing since the 1980s. That's how I got into being an MRO, medical review officer. I was approached by our local nuclear plant to review some of the drug tests. But they take a slightly different approach that I really commend, which is a fitness for duty program, rather than a drug test program. And it includes assessment of impairment from any cause, as well as drug testing. They instituted a formal policy in 1986 and published a final rule in 1989, which is for federal programs pretty fast. And they've updated it since to adapt to changes. I commend you to read 10 CFR Part 26 about these programs. The NRC requires nuclear facilities to have a fitness for duty program to include reasonable assurance that the personnel are trustworthy, will do their tasks in a reliable manner, are not under the influence of any substance, legal or illegal, that may impair their ability to perform, and are not mentally or physically impaired from any causes that may be associated or physically impaired from any causes that can adversely affect their ability to safely and competently perform their duties. And it most notably includes a fatigue management program. I find this very reassuring that the nuclear personnel are being monitored in this way. And I can speak from personal experience that the nuclear industry takes this very, very seriously. This is a model that I wish companies and the federal government would adopt across the board. But it's hard to do. It's expensive. It takes time. It takes skills and training. And unfortunately, that often doesn't happen in many of these programs, and especially not in non-regulated testing, which I will tell you about in a moment. In the transportation industry, this goes back to 1988 as an interim rule. It had begun a little earlier in response to the Drug-Free Workplace Act. Each authority has their own regulations as to who has to be tested, but they have one common method of doing the testing. 49 CFR Part 40, often referred to as Part 40, outlines the responsibilities of all the people involved, the employer, labs, testing agents, MRO, in each of the departments. The largest people under this are the truck drivers under the Federal Motor Carrier Safety Administration. The Omnibus Transportation Employee Testing Act, which was in 1991, expanded this across a much broader swath of the transportation industry. And a group called the Office of Drug and Alcohol Policy and Compliance, there's a mouthful, ODEPAC, advises the Secretary of the DOT on transportation, drug tests, and alcohol testing. All of the agencies are covered, including the Coast Guard, by the way, which is not a DOT agency now, but it's part of Homeland Security. But for drug testing purposes only, it's considered a DOT agency. And any designee of a DOT agency, which may be a private company. Now, the Bible, again, is 49 CFR Part 40. It defines everybody's roles. Collectors, who and how they do it, training required. MROs, such as myself, who review the drug test results. MROs have to be physicians in the federal program. Substance abuse professionals who determine what is needed for an employee who tested non-negative, in other words, positive or refusing to test, or return to duty testing. These have to review these situations and decide what is needed to safely return. Breath alcohol technicians, or BATs, who administer these tests for breath alcohol. Screening technicians who help. Agencies that coordinate and provide services. There's a whole bunch of people. Each of the roles are defined in CFR Part 40. In a sense, you have to commit it to memory if you're doing a drug testing program. There's a whole bunch of non-regulated testing. Any test not done, mandated by a federal agency, is non-regulated. Might be mandated by the state, such as the mine-related stuff. May be required by an employer at a federally involved level, but not a federal employer. It may be a hospital, maybe a school, maybe sports, court-ordered, forensic after death. These are non-regulated tests. When it first started in the 80s, drug testing was a wild west. Many people said, I can do that. The procedures were all over the place, and many were flawed. Many were done on the garage floor, as garage labs sprung up. Tests were done with methods that had potential for error, even in some of the reputable labs. What the employers did with it was not consistent, and unfortunately, it was sometimes used punitively rather than as a deterrent. Now, it's generally much better. Most programs follow one of the federal approaches, Part 40 usually, and I, when asked, recommend the NRC-type program. Any sample can be used. Urine is the most common. Oral fluids are becoming more common. Breath, obviously, for alcohol. Hair is very common in non-regulated testing because it goes way back, and it's now proposed by the FMCSA and in the rulemaking process. Blood can be used in circumstances where you can't get another sample, and a certain type of result is needed. Nail and sweat can be used. Eyeball fluid, any body fluid can be tested for drugs. Now, what is the role of the advanced practice practitioner? Now, in theory, based on your training, you could fill many or all of these roles, but under the federal programs, the MRO must be an MD, and under the federal programs, the SAP must have certain credentials that are psychological. Interestingly, in the Nuclear Regulatory Commission, at one time, they have an SAP. I was an SAP because of my knowledge of drug testing and the impact, but in the federal transportation-type programs, I would not meet that criteria. But many programs which are non-regulated do ask that such participants meet the requirements, but they sometimes bend the rules a bit, and that's where problems can occur. The APP can fulfill it, and where possible, I would encourage that. So, how do you develop a drug-free policy? Well, first of all, determine if your program falls in a regulated area, and if so, review the requirements and follow those requirements because you're going to get audited on them. And for any program, however, unless defined differently to decide who's covered, have a good reason to test, so safety-sensitive. Decide upfront what you will test for. Absolutely pick a reputable lab and visit that lab to see their processes. Talk to their MRO if you can. Define the process for reviewing the results. Will an MRO be involved? I hope it will be, but it doesn't have to be in a non-regulated situation. Determine what you're going to do when someone tests positive. Don't change forces in midstream and do something different for different people. Remember something I told you early on, be consistent. Don't be punitive. When you're developing a drug testing program, be aware of state and local rules. Like I said, be sure you know who's covered, have good reasons, pick all of these requirements that we talked about. Decide who's going to do what, who is going to fulfill what roles. How are you going to ensure confidentiality and privacy? Very important, because when you make a report, you're not going to be speaking about the drug use or information you learn in the course of reviewing that drug use or the drug test result. You have to maintain those things if you're going to have any credibility with the people, both the employer and the employees. Training, absolutely. Certification, if required, is absolute. And what do you do when somebody tests positive? Now, for an MRO and for anyone in drug testing, there are a lot of problems and pitfalls. What do you do about marijuana is becoming one of the biggest ones, because marijuana is allowed in many states and many states say you cannot specifically test for marijuana. So, what do you do if you're a nationally based company or one who works across state lines? Really increasing problem. When I'm an MRO and I get a claim that the medicine is in my system because I took my spouse's medication, I felt that I had a headache that was really not getting better. So, I took one of my spouse's opioids. What do you do about it? Oh, and by the way, I threw the bottle out. So, I can't even prove it's my spouse's. What do you do about them when the person says, my doctor told me to take it because I called him and told him I was having back pain and I don't have a script, but they told me to take the medication for my spouse or something I'd used before, but I don't have a current prescription for it. How old is old medication? There's a big argument that goes about that. Medicine expires, but the expiration is when the medicine is no longer to be sold by the pharmacist. Doesn't mean there isn't a great deal of potency to it. Doesn't mean that you don't still have it. I'm going to make a bet that almost every one of you, I'll admit it, I have it, has an old prescription that expired years ago in my medicine cabinet. I'm sure most of you have the same. Most people do. And then when faced with a medical condition, they often take it. And then for some reason, either maybe they were impaired by it, or for some reason they get drug tested. What documentation will you require in the event of a prescription drug being claimed? Pharmacists are increasingly reluctant to reveal information. Do you need a release? You don't, by the way, in a federal program. The federal laws require that it be given the information. But what about non-regulated? And I urge people who are setting up drug testing programs to avoid multiple different samples. Many employers test for hair to look for what happened months and months ago. And it may not have anything to do with what's going on now. And they do a urine to see what's going on in the last couple of weeks. And they do a saliva to see what's happening the last few hours. They're going to come out differently. And they're going to give you different results that now have to be interpreted and understood and create all sorts of both decision making and legal problems. So what's the future of workplace testing? More and more, we're seeing point of contact testing where the collector not only collects the sample, be it a urine, be it a saliva, be it breath, and the collector interprets the result. That's currently the case in the federal programs for breath alcohol technicians. They interpret the results of the breath alcohol test and report it to the employer. I predict that saliva testing will become more and more common. It's becoming part of the regulation now that is being worked through for the federal program in the transportation industry. Breath testing will become more common as technologies develop that allow testing for a variety of substances beyond alcohol. The technology will be way ahead of the legal aspects of it. And it's going to be a long time before this is going to be incorporated in the federal programs because of that issue. But it's going to be more and more common in the non-federal, non-regulated testing. Sweat testing will find a place because sweat testing covers a period of time shorter than hair testing, but longer than urine testing. Now hair testing will continue, but it won't be so much as an impairment issue as a use issue. It'll find use in someone who has already been tested positive and now is in a program to monitor their use, and hair testing can do that. But it won't find as much use in pre-employment testing because it goes way back in many situations. There are a whole host of issues which I won't be able to go into here because of time, but that may be problematic in certain groups of people. We're going to see more and more performance testing for drug abuse and impairment in general, such as eye tracking situations, video games that can be used. They're being used now to test for ability to respond. We're going to be seeing more and more quick tests, hopefully a little bit more scientifically based than the trainer checking their fighter in the corner to make sure they're capable of going the next round. But tests of that nature will be done. Some of them will be done as people come into work because they will be able to determine if this person is impaired at this moment. We do that already in many ways with disease processes. We test asthmatics during the course of the day. They're given a little device, they test themselves to see if their asthma is acting up. Often it's a way to find out if they're responding to the workplace, but we're going to see those same kind of tests for impairment. Now, increasingly, regulatory constraints may limit some of these tests. We'll have to see how that plays out. So, I can provide to you, if you want, some of my prior presentations on these matters. I scratched my head because I'm not sure where I'm going to find some of them, but I'll find them for you. And they cover different aspects of what I'm talking about today. And here are my references. I'm not going to go through these. They are extensive. So, wow, each of these points about drug and alcohol testing in particular could have a several-hour-long session just to get an overview. So, I will recommend some resources. If you are not an MRO, talk to your MRO. Talk to the labs. The labs often have scientifically-oriented people, toxicologists, who know a lot about drug testing. Talk to your SAP. Talk to your EAP about non-drug testing impairment and drug testing impairment. I run a list called the MRO list. It's free. It's open to anyone who's in the profession related to drug testing. Contact me. You have my email down below. And ACOM runs the MRO forum. It's run by the MRO group. It's a community of people who talk about drug testing in all its forms. Contact ACOM about that. Now, obviously, since this is a recorded session, there won't be any questions. But I'm open to you contacting me in any of the forums I've indicated about questions. Thank you.

impairment in the workplace

drug use

substance abuse

fatigue

distraction

stress

illness

recognizing impairment

drug testing regulations

drug-free policy