Drug and Alcohol Testing in Accordance

with DOT and FTA Regulations

Presented by: Esther Avalos, Director of Compliance, MV Transportation, Inc.

• DOT’s “Medical Marijuana” Guidance – DOT’s “Medical Marijuana” Guidance – October 2009October 2009

Bottom Line: Medical Review Officers will Bottom Line: Medical Review Officers will notnot verify a verify a

drug test as negative based upon information that a drug test as negative based upon information that a physician recommended that the employee use “medical physician recommended that the employee use “medical marijuana.” It remains unacceptable for any safety‐marijuana.” It remains unacceptable for any safety‐sensitive employee subject to drug testing under the sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations Department of Transportation’s drug testing regulations to use marijuana.to use marijuana.

• Public Interest Exclusion – Published Public Interest Exclusion – Published November 17, 2009November 17, 2009

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The DOT revised 49 CFR Part 40 in a Federal Register published June 25, 2008.  

The DOT changed the observed collection procedures because there was ample evidence suggesting that more and more devices are available in the market place designed to tamper with specimens

•The same gender observer enters the restroom or facility where urination occurs with the employee. The observer must request the employee to •raise his or her shirt, blouse, or dress/skirt, as appropriate, above the •waist, just above the navel; and lower clothing and underpants to •mid-thigh; and to show the observer – by turning around – that the employee •does not have a prosthetic device. After the observer has determined that the employee does not have such a device, the observer may permit the employee to return clothing to its proper position and then conduct the observed collection.

•The observer must watch the employee urinate into the collection container. Specifically, the observer must personally and directly watch the urine go from •the employee’s body into the collection container (use of mirrors or video cameras is not permitted).

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•MDMA Testing – We added this under the category of Amphetamine testing

See 49 CFR sections 40.87 and 40.97

•Lowering Laboratory Cutoff Criteria for Cocaine and Amphetamines

See 49 CFR sections 40.87 and 40.97

•Laboratory Testing for 6-Acetylmorphine (6-AM)See 49 CFR sections 40.87, 40.97, 40.139, 40.140

•Remember, there is “no legitimate medical explanation for the presence of PCP, 6-AM, MDMA, MDA, or MDEA in a specimen” – 49 CFR section 40.151

If you would like to view the full scope of these changes you can go to:

 http://www.dot.gov/ost/dapc/frpubs.html

Still considered a 5-Panel under DOT Regulations

Ecstasy, MDMA is a synthetic, psychoactive drug that is chemically similar to the stimulant methamphetamine and the hallucinogen mescaline. MDMA causes an increase in serotonin which plays an important role in the regulation of mood, sleep, pain, appetite, and other behaviors.

Ecstasy users make extremely dangerous drivers. They can exhibit the same impairments as amphetamine, heroin, cocaine, and hallucinogen users.

Some ways driving ability is affected by ecstasy use include:

Slowed thinking and reflexes- making reacting difficult Distorted visual and depth perception Difficulty making complex decisions Lengthened glare recovery time Overly confident in driving skills and judgment Lapses in attention and concentration – driver is unable to display continuous attention Distorted vision Auditory and visual hallucinations

The Drug Testing Process

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Contingent upon offer Negative result must be in hand prior to

SS duty Pre-employment Alcohol Testing

You may choose to do this (it’s an IQ test!) If you do, you must do it with Federal

forms, and for all SS applicants/employees. If SS emp is away 90+ days, and out of

random testing pool, perform a pre-employment test!

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49 CFR Part 40 Section 25 requires Backgrounds Make your requests under 40.25, not 382!

SS employers from last 2 years Within 30 days of hire You must ask the employee:

“have you, in the last two years, failed or refused a DOT pre-employment test?” You must ask this because, had he failed/refused, you

would have no employer of whom to make the above request!

You must return requests made of you

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Check compliance annually49 CFR Part 40 changed in October of

2010 – have you updated your policy? Do you have a model policy?

Make sure it’s localized!Make sure your Board/GM knows!

Disseminate & ExplicateYour job is to help employees get it!Get a receipt from each employee (it’s

proof!)

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Failure To:Appear at all, or in a timely manner*Remain until the testing process is complete**Provide a sample**Provide a full sample w/o medical reasonUndergo a medical evaluationCooperate w/ any part of the processPermit monitoring/observationTake a second test, as orderedSign step 2 of the Alcohol Testing Form

The submission of a verified adulterated/substituted test

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*Not a refusal for pre-employment testing**Not a refusal for pre-employment testing, provided testing has not yet begun (Cup handed to donor)

On August 25, 2008, the following refusals were added (§40.191(a)(9-10)): The possession or wearing of a prosthetic

or other device that could be used to interfere with the collection process

Failure to follow an observer’s instructions to raise/lower clothing and underpants, and to turn around to permit the observer to ascertain the presence/absence of interfering paraphernalia

Admission to the collector/MRO of adulteration or substitution

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Decisions you must make locally: “2nd Chance” Policy Negative-Dilute Policy

A second negative-dilute is always negativeYou must treat all employees the sameYou may have different policies for different

test types

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60 min of Training for each Safety-sensitive Employee – Effects of Drug Use

120 min of Training for each Supervisor authorized to make Reasonable Suspicion Determinations:60 min on Drug Use60 min on Alcohol UseTraining Video is available free from FTAThere is no official certification for this:

self-certify!Make sure your training now includesinformation on Ecstasy (MDMA)

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Determine your draw periodCannot be less frequent than quarterly

Determine your rate (FTA Minimum is 25%/10%)A percentage of the number of safety-

sensitive staff you employ throughout the year, on average

You can test at a higher rateYour policy should indicate your rate

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Random TestingDeter, Detect, Deter

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This year, you must test 25%/10% of theaverage number of safety-sensitive

employees An example:

• Q1: 336 SS emps• Q2: 342 SS emps• Q3: 361 SS emps• Q4: 341 SS emps Average (1380/4)=345 (this is the # of

emps for MIS); Test for Drug: 25% = 86.25

(87+ tests 22/q) Test for Alcohol: 10% = 34.5 (35+ tests

9/q)

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Selection Lists must be securely maintained (2yrs+)Locked cabinet, minimal distributionSecure fax line, email, etc.

Notification of Random TestingChain of Notification

(Supervisors? Dispatchers?)Who ensures spreading of random tests?Constraints on random alcohol testing You may only perform random alcohol testing just before, during, or just after safety-sensitive duties.

• Keep your roster up to date Use payroll, log, or other consistent

mechanism US DOT covered employees only! Get this info to your C/TPA (as applicable) on

timeEnsure that your C/TPA gets it back to you!

Random Testing must be spread:Throughout the YearThroughout the WeekThroughout All Hours of Safety-Sensitive

Duty Spread may be proportional; it is not an

even spread The goal of spreading tests is to

increase deterrence through unpredictability

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Remember:The spread is proportional to serviceAlcohol Testing may only be performed

Just before safety-sensitive duty During safety-sensitive duty Just after safety-sensitive duty Drug testing may be performed at any time

If only one employee works on Sundays, and that employee is not selected for testing, then it’s fine to not test on Sunday during that period

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Accident: Associated with the operation of arevenue service vehicle, whether or not thevehicle is in revenue service (includes in theyard) Fatality

Disabling Damage to any Vehicle

Injuries requiring immediate medical treatment away from scene

• The police clear the scene of the accident and the driver of the other vehicle has been sent to the hospital in the ambulance from the scene, your driver was rear ended and the police are citing the other driver.

-Do you test your driver?

Nonfatal Accidents – As soon as practicable following an accident NOT involving the loss of human life in which a vehicle is involved, you must drug and alcohol test the operator at the time of the accident …

UNLESS you can determine using the best information available at the time of the decision, that the operator’s performance can be completely discounted as a contributing factor to the accident.

Factors that do not trigger P.A. tests

Dollar amount of damage Driver citation Insurance or Company requirement “Just to be safe” Reasonable Suspicion implications

Jerry Powers, FTA D&A Program Manager (617) 494-2395 Gerald.Powers@dot.gov

Mike Redington, RITA/Volpe Center (617) 494-2197 Michael.Redington@dot.gov

Eve Rutyna, RITA/Volpe Center (617) 494-3447 Eve.Rutyna@dot.gov

FTA Drug and Alcohol Hotline (617) 494-6336 Fta.damis@dot.gov

For questions regarding an audit, contact the audit team leader

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FTA Safety & Security:http://transit-safety.fta.dot.gov

FTA D&A MIS Reporting:http://transit-safety.fta.dot.gov/Safety/

DAMIS.asp DOT Office of Drug & Alcohol Policy &

Compliance:http://www.dot.gov/ost/dapc

FTA Drug & Alcohol Forum:http://transit-safety.fta.dot.gov/Safety/

BBS/default.asp

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Questions & Answers