FTA DRUG & ALCOHOL PROGRAM NATIONAL CONFERENCE APRIL, 2011
DRUG & ALCOHOL PROGRAM MANAGER SEMINAR
Slide 2
WELCOME We are: FTA Drug & Alcohol Program Auditors George
Gilpatrick & Joe Lofgren 2
Slide 3
WELCOME You Are: New Drug & Alcohol Program Managers
(DAPMs) General Managers New DAPM Assistants Transitioning into/out
of DAPM role Trainers 3
Slide 4
COURSE OVERVIEW Subjects of Discussion: Regulation History and
Overview Prohibitions & Testing Overview The DAPM Role and
Management Theory Your Programs Policy Records Management Internal
Oversight DOT D&A Management Information System (MIS) Best
Practices 4
Slide 5
SCHEDULE 5
Slide 6
GLOSSARY Adulterated Specimen A urine specimen containing a
substance not expected to be present (at all or at a certain
volume) in human urine Alcohol Concentration - The alcohol in a
volume of breath expressed in terms of grams of alcohol per 210L of
breath ATF - Alcohol Testing Form (the alcohol equivalent to the
CCF) BAT - Breath Alcohol Technician (Collector) Canceled Test A
result that is neither negative nor positive CCF - Custody &
Control Form (Chain of Custody, or COC) C/TPA A service agent that
provides/coordinates elements of your program DAPM - Drug &
Alcohol Program Manager (usually same as DER) DER - Designated
Employer Representative (usually same as DAPM) 6
Slide 7
GLOSSARY, CONTINUED Dilute Specimen - A specimen with
creatinine and specific gravity values that are lower than expected
for human urine. (US)DOT - Department of Transportation (in
Washington, DC) FTA - Federal Transit Administration (Part of DOT)
FU - Follow-up Testing MRO Medical Review Officer ODAPC DOTs Office
of Drug and Alcohol Policy & Compliance RTD - Return to Duty
Testing SAP Substance Abuse Professional SS Safety-sensitive
Verified Test - A drug test result or validity testing result from
an HHS-certified laboratory that has undergone review and final
determination by the MRO. 7
Slide 8
ICONOGRAPHY Review and Check for Errors Use Forms Here Check
your Policy Training/Certification Important Common Mistake
Time-sensitive Requirement 8
Slide 9
THE REGULATIONS 49 TH CODE OF FEDERAL REGULATIONS PART 40 PART
655 PART 382 9
Slide 10
REGULATION HISTORY & OVERVIEW Congress Found that: (1)
alcohol abuse and illegal drug use pose significant dangers to the
Nation; (2) The Nation's citizens depend on the operators to
perform in a safe manner; (3) the greatest efforts must be expended
to eliminate the abuse of alcohol and use of illegal drugs by
operators; (4) the use of alcohol and illegal drugs has been proven
to have been a critical factor in transportation accidents; (5) the
testing of uniformed personnel of the Armed Forces has shown that
the most effective deterrent is increased testing, including random
testing; (6) adequate safeguards can be implemented to ensure
privacy; (7) rehabilitation is a critical component of any testing
program. 10 Public Law 102-143 (H.R. 2942)
Slide 11
REGULATION HISTORY & OVERVIEW, CONT. October 91 Omnibus
Transportation Employee Testing Act 93% combined vote Covers more
than 12m employees February 94 FTA Adopts 49 CFR Parts 653 &
654 Compliance Required by 1/1/95 (Large Operators), or 1/1/96
(Small Operators) 11
Slide 12
REGULATION HISTORY & OVERVIEW, CONT. March 97 FTA Drug
& Alcohol Program Audits Begin August 01 49 CFR Part 40 Updated
FTA Combines Parts 653 & 654 into Part 655 12
Slide 13
REGULATION HISTORY & OVERVIEW, CONT. 2008 49 CFR Part 40
Updated Mandatory Direct Observation for RTD/FU 2009 FTA
Clandestine Collections Program Begins 2010 DHHS Updates Testing
Protocols, Adds MDMA 49 CFR Part 40 Updated 13
Slide 14
KEY SECTIONS PART 655 Definitions 655.4 Prohibited Drug Use
655.21 Prohibited Alcohol Use 655.31-35 Pre-employment Testing
655.41-42 Reasonable Suspicion Testing 655.43 Post-accident Testing
655.44 Random Testing 655.45 Return-to-Duty/Follow-up Testing
655.46-47 Retention of Records 655.71 MIS Reporting 655.72 14
Slide 15
KEY SECTIONS PART 40 Definitions 40.3 Employer Responsibilities
Subpart B 40.11-40.29 The Verification Process Subpart G
40.121-40.169 The Return-to-Duty Process Subpart O 40.281-40.313
Role/Responsibilities of Service Agents Subpart Q 40.341-40.355
15
Slide 16
PROHIBITIONS & TESTING OVERVIEW DRUG USE, ALCOHOL ABUSE,
AND FEDERAL TESTING 16
Slide 17
PROHIBITED DRUGS The NIDA 5 Marijuana Cocaine Amphetamines (w/
MDMA) Opiates Phencyclidine (PCP) Use of these substances is
prohibited at all times Prohibitions may be added
(over-the-counter, Rx, etc.) 17 Cutoff Concentrations for Initial
& Confirmation Tests
Slide 18
THE DRUG TESTING PROCESS 18
Slide 19
PROHIBITED ALCOHOL USE Covered Employees may not use alcohol:
While performing a safety-sensitive function Within four (4) hours
of beginning the performance of a safety-sensitive function Within
eight (8) hours after an accident (or until a post- accident
alcohol test has been performed) While on Call* * The employee must
be given the opportunity to acknowledge the use of alcohol at the
time of notification. 19
Slide 20
ALCOHOL TESTING Devices approved by NHTSA Evidential Breath
Testing Machine (EBT) Prints Result Only device that can be used
for confirmation test Alcohol Screening Device Does not print
result Approved by NHTSA, but cannot be used for confirmation
testing Saliva Testing Strip most common 20
Slide 21
ALCOHOL TESTING PROCESS 21
Slide 22
THE FIVE TYPES OF FTA TESTING Pre-Employment Before 1 st
performance of SS Function After 90+ day absence (never a RTD!)
Random Deters use among community; Must be unpredictable
Post-Accident FTA testing after serious accidents Reasonable
Suspicion Specific, articulable reason for testing
Return-to-Duty/Follow-up Only after a positive/refusal, and after
SAP referral 22
Slide 23
THE DRUG & ALCOHOL PROGRAM MANAGER YOUR ROLE AS DEFINED BY
THE REGULATIONS YOUR ROLE WITHIN YOUR ORGANIZATION THE SCOPE OF
YOUR FUNCTION 23
Slide 24
49 CFR PART 40 & THE DER (DAPM) Part 40 Defines the
Designated Employer Rep as: Part 40 Also Notes that: 24 An employee
authorized by the employer to take immediate action(s) to remove
employees from safety-sensitive duties, or cause employees to be
removed from these covered duties, and to make required decisions
in the testing and evaluation processes. The DER also receives test
results and other communications for the employer, consistent with
the requirements of this part. Service agents [TPAs, MROs, SAPs,
Collectors/BATs] cannot act as DERs.
Slide 25
YOU & YOUR ORGANIZATION Distance to Safety-Sensitive
Personnel Can you meet DOTs requirement to remove employees from
safety-sensitive duties, or cause employees to be removed from
these covered duties? Safety-sensitive Roster (Pool) Awareness Do
you know before each draw who is currently SS? Are you linked into
Payroll, Operations, or Human Resources? Do you know who your
covered contractors are? Are you Plugged In? 25
Slide 26
THE THINGS YOULL DO Pre-employment ProcessingPolicy &
TrainingRandom TestingPost-Accident TestingReasonable Suspicion
TestingReturn-to-Duty TestingFollow-up TestingVendor Monitoring
26
Slide 27
PRE-EMPLOYMENT PROCESSING 655.41(A)(1): BEFORE ALLOWING A
COVERED EMPLOYEE OR APPLICANT TO PERFORM A SAFETY-SENSITIVE
FUNCTION FOR THE FIRST TIME, THE EMPLOYER MUST ENSURE THAT THE
EMPLOYEE TAKES A PRE- EMPLOYMENT DRUG TEST ADMINISTERED UNDER THIS
PART WITH A VERIFIED NEGATIVE RESULT. 27
Slide 28
THE PRE-EMPLOYMENT TEST Contingent upon offer Negative result
must be in hand prior to SS duty Pre-employment Alcohol Testing You
may choose to do this (its 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! 28
Slide 29
BACKGROUND CHECKS 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 29
Slide 30
P.E.T.E.R. The Pre-employment Testing Exemption Request Contact
Jerry Powers if:Jerry Powers You are absorbing another entity or
being absorbed by another entity Changes to your company are
administrative only Pre-employment negatives are available for all
employees 30
Slide 31
Compliance Dissemination Training POLICY & TRAINING 31
Slide 32
YOUR POLICY Check compliance annually 49 CFR Part 40 changed in
October of 2010 have you updated your policy? Do you have a model
policy? Make sure its localized! Make sure your Board/GM knows!
Disseminate & Explicate Your job is to help employees get it!
Get a receipt from each employee (its proof!) 32
Slide 33
TRAINING 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 Use 60 min on Alcohol Use Training Video is available free
from FTA There is no official certification for this: self-certify!
33
Slide 34
RANDOM TESTING DETER, DETECT, DETER 655.45(F): THE EMPLOYER
SHALL RANDOMLY SELECT A SUFFICIENT NUMBER OF COVERED EMPLOYEES FOR
TESTING DURING EACH CALENDAR YEAR TO EQUAL AN ANNUAL RATE NOT LESS
THAN THE MINIMUM ANNUAL PERCENTAGE RATES FOR RANDOM DRUG AND
ALCOHOL TESTING DETERMINED BY THE ADMINISTRATOR. 34
Slide 35
RANDOM TESTING Determine your draw period Cannot 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
rate Your policy should indicate your rate 35
Slide 36
THE RANDOM DRAW (OR PULL) This year, you must test 25%/10% of
the average 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)
36
Slide 37
RANDOM TESTING POOLS 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 time Ensure that
your C/TPA gets it back to you! 37
Slide 38
RANDOM TESTING POOLS CONTINUED C/TPA: A Consortium/Third Party
Administrator assists in the maintenance and application of your
testing program A consortium is made up of independent systems who
combine their safety- sensitive pools into one larger pool. A
consortium must perform random testing selections at the highest
applicable minimum rates 38
Slide 39
RANDOM TESTING & THE TPA A Third Party Administrator may
perform numerous functions: Random Selection MRO Services
Collection Sites/Collection Site Oversight Records Maintenance
& Retention A TPA may not: Transmit Laboratory Reports from the
Lab to the MRO Transmit Alcohol Results of 0.02 + from BAT to
Employer 39
Slide 40
RANDOM TESTING CONTINUED Selection Lists must be securely
maintained (2yrs+) Locked cabinet, minimal distribution Secure fax
line, email, etc. Notification of Random Testing Chain 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. 40
Slide 41
RANDOM TESTING CONTINUED - IMMEDIACY Section 655.44(h) states
that Each employer must decide how much time a notified employee
has to report for testing. An employees failure to arrive at the
collection site in the allotted time constitutes a Refusal to Test.
**Refusals Are Positive Tests!** 41 Each employer shall require
that each covered employee who is notified of selection for random
drug or random alcohol testing proceed to the test site
immediately.
Slide 42
RANDOM TESTING CONTINUED - SPREAD Random Testing must be
spread: Throughout the Year Throughout the Week Throughout 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 42
Slide 43
RANDOM TESTING CONTINUED Random Testing Result Processing 1.You
should receive the employer copy of the CCF/ATF within two (2) days
of the test 2.You should receive a result from the MRO/TPA within a
few business days Do Not assume that no news is good news Keep
track of results due, chase them down if necessary 43
Slide 44
POST-ACCIDENT TESTING TRAINING, ANALYSIS, TIMELINESS 655.44: AS
SOON AS PRACTICABLE FOLLOWING AN ACCIDENT AN EMPLOYER SHALL CONDUCT
DRUG AND ALCOHOL TESTS ON EACH COVERED EMPLOYEE OPERATING THE MASS
TRANSIT VEHICLE AT THE TIME OF THE ACCIDENT. 44
Slide 45
POST-ACCIDENT TESTING Training Who 1.You, as the program
manager, should be familiar with all aspects of the Federal
Requirements 2.Road Supervisors, as the primary on-scene decision
makers 3.Other supervisors/dispatchers/managers 45
Slide 46
POST-ACCIDENT TESTING CONTINUED Post-Accident Testing
Thresholds 1.The event must be associated with the operation of a
vehicle 2.The event must have resulted in one or more of the
following conditions: 46
Slide 47
POST-ACCIDENT TESTING CONTINUED 47 FATALITY Always Test All
Operators Other SS Emps INJURY Treatment Away from Scene Best
Available Info Other SS Emps DISABLING DAMAGE Any Vehicle Best
Available Info Other SS Emps *Removed from service * Applies to
fixed-rail vehicles only!
Slide 48
POST-ACCIDENT TESTING CONTINUED Best Available Info Youre not
psychic (probably) At the Scene means at the scene (not: later) 48
nikscott.com
Slide 49
POST-ACCIDENT TESTING CONTINUED SO: If you document: theyre ok
now, then theyre ok now If you document: he had nothing to do with
it, then he had nothing to do with it FTA Will Back You Up One of
the most common audit findings is: Post-Accident Over-Testing
49
Slide 50
POST-ACCIDENT TESTING CONTINUED Who to test after: A fatality,
each surviving covered employee operating the mass transit vehicle
at the time of the accident, as well as any other covered employee
whose performance could have contributed to the accident, as
determined by the employer using the best information available at
the time of the decision 50
Slide 51
POST-ACCIDENT TESTING CONTINUED Who to test after: An accident
not involving the loss of human life, each covered employee
operating the mass transit vehicle unless the employer determines,
using the best information available at the time of the decision,
that the employees performance can be completely discounted The
employer shall also drug and alcohol test any other covered
employee whose performance could have contributed to the accident
51
Slide 52
POST-ACCIDENT TESTING - DISCOUNTING A note on Discounting:
Auditors find that inability to discount is frequently used
in-and-of itself as a threshold (i.e., a reason to test)
Supervisors also commonly discount in report narrative, then check
cant discount on a PA decision form A helpful way to think through
non-fatal accidents is to invert the process hierarchy: 52
Slide 53
POST-ACCIDENT TESTING - DISCOUNTING 53 Non-Fatal Event Discount
Employee Threshold Not Applicable NO TEST, or Non-FTA Test Cant
Discount Employee Threshold Met: Injury/Dis-D YesFTA TestNo NO
TEST, or Non-FTA Test
Slide 54
POST-ACCIDENT TESTING CONTINUED More on Thresholds: Injured
parties must receive medical attention away from the scene of the
accident Assistance on-the-scene from EMS does not count Disabling
damage can occur to the transit vehicle or to a privately-owned
vehicle Disabling damage (655.4) does not include: Damage that can
be remedied temporarily at the scene Tire disablement without other
damage Headlamp or tail light damage Damage to turn signals, horn,
mirrors or windshield wipers 54
Slide 55
POST-ACCIDENT TESTING CONTINUED Key Time-frames in
Post-Accident Testing Alcohol Testing: Should be conducted within
two (2) hours of accident If not, you must document reason for
delay If more than eight (8) hours pass, you must cease attempts to
conduct test and update documentation Drug Testing: Must be
conducted within 32 hours of accident Medical Treatment/Accident
Resolution comes first 55
Slide 56
POST-ACCIDENT TESTING CONTINUED Putting it together: Use forms
Use FTAs cards (http://transit- safety.fta.dot.gov/publications)
Results from other State, Local, or Federal authorities (if you
were not able to get a test done) Back to service? Some systems
return their employees to service right away, some wait until a
test result comes back 56
Slide 57
BREAK 57
Slide 58
REASONABLE SUSPICION TESTING 655.43(A): AN EMPLOYER SHALL
CONDUCT A DRUG AND/OR ALCOHOL TEST WHEN THE EMPLOYER HAS REASONABLE
SUSPICION TO BELIEVE THAT THE COVERED EMPLOYEE HAS USED A
PROHIBITED DRUG AND/OR ENGAGED IN ALCOHOL MISUSE. 58
Slide 59
REASONABLE SUSPICION TESTING Only a trained supervisor may make
a reasonable suspicion determination Only one (1) supervisor is
required You can require that two or more are present, but the
initiating supervisor must make final call Training must meet the
requirements of 655.43 and 655.14(b)(2) 60 minutes on observable
signs of drug use 60 minutes on observable signs of alcohol misuse
Its up to you to decide who is a supervisor 59
Slide 60
REASONABLE SUSPICION TESTING CONT. Reasonable Suspicion Testing
must be based on specific, contemporaneous, articulable
observations concerning the appearance, behavior, speech, or body
odors of the covered employee (655.43(b)). No anonymous tips No gut
feelings An accident is not a symptom (it may trigger an interview)
60
Slide 61
REASONABLE SUSPICION TESTING CONT. Common observations include:
Bloodshot, glassy, or dilated eyes Slurred or unusually
mumbled/stuttered speech Unusual or erratic gait Unusually
combative or garrulous 61
Slide 62
REASONABLE SUSPICION TESTING CONT. Reasonable suspicion alcohol
testing may only be performed if the observation is made: during,
just preceding, or just after the period of the workday that the
covered employee is required to be in compliance with this part
(655.43(c)). 62
Slide 63
REASONABLE SUSPICION TESTING CONT. Key Time-frame in Reasonable
Suspicion Testing Alcohol Testing: Should be conducted within two
(2) hours of determination If not, you must document reason for
delay If more than eight (8) hours pass, you must cease attempts to
conduct test and update documentation 63
Slide 64
REASONABLE SUSPICION TESTING CONT. Documentation relating to
reasonable suspicion determinations must be maintained for two (2)
years (655.71(c)). Use forms! Remember to maintain documentation
relating to reasonable suspicion training as well 64
Slide 65
REASONABLE SUSPICION TESTING CONT. Back to service? Some
systems return their employees to service right away, some wait
until a test result comes back 65
Slide 66
RETURN-TO-DUTY TESTING 655.46: WHERE A COVERED EMPLOYEE REFUSES
TO SUBMIT TO A TEST, HAS A VERIFIED POSITIVE DRUG TEST RESULT,
AND/OR HAS A CONFIRMED ALCOHOL TEST RESULT OF 0.04 OR GREATER, THE
EMPLOYER, BEFORE RETURNING THE EMPLOYEE TO DUTY TO PERFORM A
SAFETY- SENSITIVE FUNCTION, SHALL FOLLOW THE PROCEDURES OUTLINED IN
49 CFR PART 40 [SUBPART O]. 66
Slide 67
RETURN-TO-DUTY TESTING Part 40, Subpart O outlines the duties
of the Substance Abuse Professional (SAP) and the return-to-duty
and follow-up testing processes. 67 Dr. Katz, 1995-1999 Comedy
Central
Slide 68
RETURN-TO-DUTY TESTING The return-to-duty cycle is comprised of
three main parts: 68 Referral, Initial SAP Evaluation &
Recommendation Follow-up Evaluation & Recommendation
Return-to-Duty Test w/ Negative Result
Slide 69
RETURN-TO-DUTY TESTING CONTINUED Referral after a DOT
violation, you refer the employee to a qualified SAP The SAP must
meet the requirements of 40.281: (a) Credentials (Social Worker,
Counselor, Psych, etc.) (b) Knowledge of Part 40, and experience in
the diagnosis and treatment of related disorders (c) Qualification
training (a test) pursuant to this Part (d) Continuing education
(12 CEUs per 3 years) SAPs are NOT certified by DOT! 69
Slide 70
RETURN-TO-DUTY TESTING CONTINUED Initial Evaluation and
Recommendation: SAP interviews the employee and recommends a course
of education and/or treatment SAP must always recommend some kind
of education and/or treatment Neither you nor the employee may seek
a 2 nd opinion You must receive and maintain a copy of this report
70
Slide 71
RETURN-TO-DUTY TESTING CONTINUED Follow-up Evaluation and
Recommendation: SAP interviews employee after education/treatment
has begun You must receive and maintain a copy of this report SAP
decides to release for return-to-duty test Only the employer may
decide fitness for duty The employee can not return to
safety-sensitive duty until you are in receipt of RTD negative(s)
71
Slide 72
FOLLOW-UP TESTING 655.47: AN EMPLOYER SHALL CONDUCT FOLLOW-UP
TESTING OF EACH EMPLOYEE WHO RETURNS TO DUTY, AS SPECIFIED IN 49
CFR PART 40, SUBPART O. 40.309(A): AS THE EMPLOYER, YOU MUST CARRY
OUT THE SAP'S FOLLOW-UP TESTING REQUIREMENTS. YOU MAY NOT ALLOW THE
EMPLOYEE TO CONTINUE TO PERFORM SAFETY-SENSITIVE FUNCTIONS UNLESS
FOLLOW-UP TESTING IS CONDUCTED AS DIRECTED BY THE SAP. 72
Slide 73
FOLLOW-UP TESTING CONTINUED Substance Abuse Professional
determines the number and frequency of follow-up tests SAP must
require at least 6 tests in the first year SAP may not prescribe at
least 6 tests - the number must be fixed Tests will be drug,
alcohol, or both Testing may only continue for 60 months (5 years)
73
Slide 74
FOLLOW-UP TESTING CONTINUED SAP may front-load or taper the
frequency For example: 1 test per month for the first 6 months,
then 1 test every other month for an additional 12 months 1 test
every other month for the first 12 months, then 1 test per month
for 12 months SAP may review and modify the follow-up testing plan,
as necessary 74
Slide 75
FOLLOW-UP TESTING CONTINUED SAP is the sole determiner of the
number and frequency of follow-up tests, DAPM must actually
schedule the tests Like random testing: unannounced and
unpredictable You may not substitute other tests for these tests
You may not go above and beyond the SAPs plan SAPs follow-up
testing plan follows the employee to any other DOT-regd employer
75
Slide 76
MORE ON YOUR POLICY 655.12: AN ANTI-DRUG USE AND ALCOHOL MISUSE
PROGRAM SHALL INCLUDE THE FOLLOWING: (A) A STATEMENT DESCRIBING THE
EMPLOYERS POLICY ON PROHIBITED DRUG USE AND ALCOHOL MISUSE IN THE
WORKPLACE, INCLUDING THE CONSEQUENCES ASSOCIATED WITH PROHIBITED
DRUG USE AND ALCOHOL MISUSE 76
Slide 77
MORE ON YOUR POLICY Your policy must: Be adopted by the local
governing board or entity Identify you, the DAPM, by name or
position Include specific prohibitions, and the consequences of
violating those prohibitions Offset clearly any elements that are
included under local authority Must list each refusal condition
defined by Part 40 77
Slide 78
POLICY REFUSAL CONDITIONS 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 reason Undergo
a medical evaluation Cooperate w/ any part of the process Permit
monitoring/observation Take a second test, as ordered Sign step 2
of the Alcohol Testing Form The submission of a verified
adulterated/substituted test 78 * Not a refusal for pre-employment
testing **Not a refusal for pre-employment testing, provided
testing has not yet begun
Slide 79
POLICY REFUSAL CONDITIONS CONT. 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
observers 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 79
Slide 80
LOCAL POLICY DECISIONS Decisions you must make locally: 2 nd
Chance Policy Negative-Dilute Policy A second negative-dilute is
always negative You must treat all employees the same You may have
different policies for different test types 80
Slide 81
LOCAL POLICY DECISIONS Pre-employment Alcohol Testing If you do
this, you must do it for all SS applicants/employees. Random
Testing Rate Currently: o 25% or more must be tested for drug use o
10% or more must be tested for alcohol misuse 81
Slide 82
LOCAL POLICY DECISIONS Which groups of employees are
safety-sensitive Dispatchers? Volunteers? Security? Supervisors?
Management? 82
Slide 83
655.71(a): General requirement. An employer shall maintain
records of its anti-drug and alcohol misuse program as provided in
this section. The records shall be maintained in a secure location
with controlled access. 83 RECORDS MANAGEMENT Pre-Employment Random
Post-Accident Reasonable Suspicion RTD/Follow-up Training Records
Vendor Certs
Slide 84
PRE-EMPLOYMENT PREVIOUS EMPLOYER (BACKGROUND) CHECKS
PRE-EMPLOYMENT NEGATIVE DATE OF SAFETY-SENSITIVE SERVICE 90-DAY
SAFETY-SENSITIVE WINDOW 84
Slide 85
BACKGROUND CHECKS Make the request per 40.25 A request form can
be found at: www.dot.gov/ost/dapc/documents.html You may verbally
ask if theyve failed/refused a regulated pre-employment test
(40.25j) but its better to document it Employee may not continue to
perform safety-sensitive functions for more than 30 days without
documentation of efforts to obtain this info 85
Slide 86
BACKGROUND CHECKS CONTINUED As the employer from whom this
information is requested, you must, after reviewing the employee's
specific, written consent, immediately release the requested
information to the employer making the inquiry. (40.25(h))
Information you obtained from a previous employer shall be included
with the information you forward to the requesting employer Records
related to this request must be maintained for three years
(40.333(a)(2)) 86
Slide 87
NEGATIVE RESULT You may not use the employee in
safety-sensitive service until you are in receipt of a verified
negative Non-safety-sensitive training, orientation, etc. is fine A
canceled test must be made up You must maintain this negative
result for at least one year Most choose to maintain this through
emps period of service 87
Slide 88
SERVICE PERIODS If: more than 90 days pass after your receipt
of a verified negative pre-employment result, and the
applicant/employee is not yet in the random testing pool, then
Another pre-employment negative must be received prior to service
(never a return-to-duty!) For records-analysis purposes, it is
recommended to keep track of the date an employee/applicant enters
into safety-sensitive service (as opposed to a payroll hire date
88
Slide 89
QUESTIONS OPEN Q&A FOR: PRE-EMPLOYMENT TESTING 89
Slide 90
RANDOM TESTING ROSTERS, POOLS, & SELECTION LISTS YOUR
TESTING RATE IMMEDIACY THE DETERRENT SPREAD TEST RESULTS
SELF-AUDITING 90
Slide 91
THE SELECTION PROCESS Employees in selection roster (or pool)
must match the categories covered in your policy Consistent system
for updating your roster Use a consistent source for updates Either
make your updates instantly (e.g., upon hire/term) or make updates
prior to each and every draw If a TPA performs your draws, make
sure you update their list before the draw Selections must be
scientifically valid 91
Slide 92
THE SELECTION PROCESS CONTINUED Remember! If employee is out of
service for 90+ days, and is out of your random testing pool during
that period: You must be in receipt of a verified negative pre-
employment test prior to their return to service Again, not a
Return-to-Duty test! Yes, you can leave an employee in the pool,
even if theyre not working If that employee is selected for
testing, and they do not return to service during the current
selection period (month, quarter, etc.), simply record the reason
the test was not performed, and move on 92
Slide 93
YOUR TESTING RATE The Current FTA testing rates are as follows:
Drug Testing: 25% | Alcohol Testing: 10% Updated rates for all
industries can be found at http://www.dot.gov/ost/dapc/rates.html
http://www.dot.gov/ost/dapc/rates.html Joint FTA/FMCSA Pools must
test at higher rate (50%) You may test above 25% and 10% These are
the minimum testing rates A note on your policy: You must change
and disseminate only if you specifically note the Fed rate as 50%
93
Slide 94
YOUR TESTING RATE CONTINUED 655.45(b): 655.45(c)(1): 94 Each
year, the Administrator will publish in the Federal Register the
minimum annual percentage rates for random drug and alcohol testing
of covered employees. When the minimum annual percentage rate for
random drug testing is 50 percent, the Administrator may lower this
rate to 25 percent of all covered employees if the Administrator
determines that the data received under the reporting requirements
of section 655.72 of subpart H for the two preceding consecutive
calendar years indicate that the reported positive rate is less
than 1.0 percent.
Slide 95
YOUR TESTING RATE CONTINUED The testing rate reflects a
percentage of the number of employees in your pool, not a
percentage of the individuals in your pool. So: Some employees may
get tested more than once, Some employees may not get tested at all
95
Slide 96
IMMEDIACY & THE NOTIFICATION PROCESS 655.45(h) states:
Furthermore: 96 Each employer shall require that each covered
employee who is notified of selection for random drug or random
alcohol testing proceed to the test site immediately. If the
employee is performing a safety-sensitive function at the time of
the notification, the employer shall instead ensure that the
employee ceases to perform the safety-sensitive function and
proceeds to the testing site immediately.
Slide 97
IMMEDIACY & THE NOTIFICATION PROCESS You/supervisors must
be cognizant of your local policy for immediacy If you escort
employees, this is of course less of an issue A notification form
does all the work for you! It tells the employee why theyre being
tested It verifies the date and time of notification It verifies
the date and time of the employees arrival to the testing site
97
Slide 98
THE DETERRENT SPREAD OF TESTING 655.45(g) states: So, what do
random spreads look like? 98 Each employer shall ensure that random
drug and alcohol tests conducted under this part are unannounced
and unpredictable, and that the dates for administering random
tests are spread reasonably throughout the calendar year. Random
testing must be conducted at all times of day when safety-sensitive
functions are performed.
Slide 99
YEAR-SPREAD - GOOD 99
Slide 100
YEAR-SPREAD NOT SO GOOD 100
Slide 101
YEAR-SPREAD BAD! 101
Slide 102
THE DETERRENT SPREAD Spread testing throughout days & hours
of Service FTA stressed this in a 98 interpretation: What do
week/hour spreads look like? 102 A grantee's drug and alcohol
program manager must schedule random testing for any time a
safety-sensitive function is being performed. In addition, random
testing must occur throughout the period when safety- sensitive
functions are being performed. Employees performing safety-
sensitive functions after normal business hours or on the weekends
remain subject to random testing. The fact that random testing
during "off hours" may be an administrative inconvenience is not an
acceptable reason not to test. (Casper 98)
Slide 103
WEEK-SPREAD - GOOD 103
Slide 104
WEEK-SPREAD NOT SO GOOD 104
Slide 105
WEEK-SPREAD BAD! 105
Slide 106
HOUR-SPREAD - GOOD 106
Slide 107
HOUR-SPREAD NOT GOOD 107
Slide 108
THE DETERRENT SPREAD Remember: The spread is proportional to
service Alcohol 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 its fine to not test on Sunday during
that period 108
Slide 109
RANDOM TESTING RESULTS Make sure results are coming in a timely
fashion Dont assume no news is good news Develop a results-tracking
system Maintain negative results for at least 1 year All positive
results must be maintained for 5 years Random testing selection
lists must be maintained (securely) for at least 2 years 109
Slide 110
RANDOM TESTING SELF AUDIT Three questions to ask yourself:
1.Who was sent for testing? When selected? What safety-sensitive
function? Selected (and tested) for drugs, alc, or both? 2.When did
they go for testing? During the period in which they were selected?
At an optimally deterrent time? Immediately upon notification?
110
Slide 111
RANDOM TESTING SELF AUDIT CONT. 3.Is the test complete? Did you
receive your copy of the CCF/ATF? Did you receive a result in a
timely fashion? Did you take action, if necessary? Did you record
and file the complete testing event? During an audit, we would look
for: o A selection list o A notification form o A CCF/ATF o A
result 111
ACCIDENT REPORTS The Reporting Chain Street supervisors?
Drivers only? You? Date & Time of Accident Disposition of
Individuals Fatalities Injuries requiring medical treatment away
from the scene 115
Slide 116
ACCIDENT REPORTS CONTINUED Disposition of Vehicles Any vehicle
receives disabling damage (i.e., gets towed) Event narrative While
you might not maintain accident reports yourself, make sure you
have access 116
Slide 117
DECISION-MAKING DOCUMENTATION Use a form, youll be very glad!
Guide the decision-maker: Threshold(s) met Other employees
Discounting Timing Time of Accident, Time of Alcohol Test, Time of
Drug Test Delay-related notes This documentation must be maintained
for 2 years 117
Slide 118
POST-ACCIDENT TESTS/RESULTS Check the CCF & ATF when they
come in Alcohol test should be first! Test Results: Did they come
in a timely fashion? Action taken, as necessary? If you were unable
to complete a test, were you able to obtain a result from another
local, State, or Federal authority? (655.44(f)) Did you record and
file a complete testing event? 118
Slide 119
QUESTIONS OPEN Q&A FOR: POST-ACCIDENT TESTING 119
Slide 120
REASONABLE SUSPICION WHO MAKES THE CALL CONTEMPORANEOUS,
ARTICULABLE OBSERVATIONS ALCOHOL TESTING, AND TIME FRAMES 120
Slide 121
WHO MAKES THE CALL Trained supervisors only One hour of
training on the signs and symptoms of drug use, and one hour of
training on the signs and symptoms of alcohol misuse Only one
supervisor is required, though you may seek additional presence
Keep training curricula, sign-in sheets, certs At least two years
121
Slide 122
OBSERVATIONS & THE INTERVIEW Test can only take place after
an interview in which a trained supervisor documents: specific,
contemporaneous, articulable observations concerning the
appearance, behavior, speech, or body odors of the covered
employee. (655.43(b)) Anonymous/Phone tips are not reasons to test,
but anything can trigger an interview Observation must be made just
before, during, or just after safety-sensitive duty 122
Slide 123
ALCOHOL TESTING, AND TIME FRAMES Testing must be performed as
soon as the decision to test is made Reasonable Suspicion Alcohol
Testing: 2hrs, document 8hrs, cease attempts, update documentation
Alcohol testing before drug testing, if applicable 123
Slide 124
QUESTIONS OPEN Q&A FOR: REASONABLE SUSPICION TESTING
124
EVENT NARRATIVE & CHRONOLOGY Records related to a positive
or refusal should clearly detail circumstances, actions, and
outcomes Initial testing event Immediate Action Policy and
Consequences SAP Referral 126
Slide 127
NARRATIVE & CHRONOLOGY Initial testing event Reason for the
test Notification dates/times Related documents CCFs/ATFs Test
Results MRO Correspondence Immediate Action Action Taken (e.g.,
Removal from Duty) Internal Correspondence 127
Slide 128
NARRATIVE & CHRONOLOGY Policy and Consequences Terminated
Second Chance A good time to check that you have a policy receipt
SAP Referral Record of the referral You must make this referral
even if you have a zero-tolerance policy! 128
Slide 129
NARRATIVE & CHRONOLOGY SAP Reports & Documents Make
sure youre always getting these three items from the SAP: 1.Initial
Evaluation w/ Treatment/Education Recommendation 2.Follow-up
Evaluation, with SAPs disposition 3.Follow-up Testing Plan
(employee can not see this!) You must maintain these reports and
associated documents for five (5) years (40.333(iv)) 129
Slide 130
THE RETURN-TO- DUTY PROCESS The SAP will tell you in the
follow-up disposition report if they feel that the employee is
ready to take a return-to- duty test A Fitness-for-Duty
determination must be made locally SAP can not make this call for
you The SAP will decide weather the RTD test is for drugs, alcohol,
or both not up to you You must be in receipt of a verified negative
test before employee returns to service 130
Slide 131
FOLLOW-UP TESTING Must be conducted per SAPs plan Must be
spread out, unpredictable, and immediate Employee remains in the
random testing pool A random test can not be a substitute for a
follow-up test, nor can any other test be a substitute for a
follow-up test. If you hire an employee who has not completed their
SAPs plan, you must see it through 131
TRAINING EMPLOYEE TRAINING SUPERVISOR TRAINING 133
Slide 134
EMPLOYEE TRAINING 60 min. on the effects and consequences of
prohibited drug use (all ss emps) 60 min. on the indicators of drug
use & 60 minutes on the indicators of alcohol misuse
(supervisors) Training only needs to take place once Many employers
do frequent refresher training Documentation must be maintained for
2 years 134
Slide 135
VENDOR CERTIFICATIONS 40.15(B) STATES: AS AN EMPLOYER, YOU ARE
RESPONSIBLE FOR ENSURING THAT THE SERVICE AGENTS YOU USE MEET THE
QUALIFICATIONS SET FORTH IN THIS PART (E.G., 40.121 FOR MROS). YOU
MAY REQUIRE SERVICE AGENTS TO SHOW YOU DOCUMENTATION THAT THEY MEET
THE REQUIREMENTS OF THIS PART (E.G., DOCUMENTATION OF MRO
QUALIFICATIONS REQUIRED BY 40.121(E)). 135
Slide 136
VENDOR CERTIFICATIONS The following materials are commonly
maintained in support of this Part: MRO certifications/credentials
SAP certifications/credentials Urine Collector certifications
Breath Alcohol Technician certifications NHTSA Device compliance
notices Random number generation compliance documentation 136
Slide 137
40.15(c) states: You remain responsible for compliance with all
applicable requirements of this part and other DOT drug and alcohol
testing regulations, even when you use a service agent. If you
violate this part or other DOT drug and alcohol testing regulations
because a service agent has not provided services as our rules
require, a DOT agency can subject you to sanctions. Contractors
Third-party Administrators Other Vendors Internal Audits 137
OVERSIGHT
Slide 138
CONTRACTOR OVERSIGHT 655.81 STATES: A GRANTEE SHALL ENSURE THAT
THE RECIPIENTS OF FUNDS UNDER 49 U.S.C. 5307, 5309, 5311 OR 23
U.S.C. 103(E)(4) COMPLY WITH THIS PART. 138
Slide 139
CONTRACTOR OVERSIGHT Contractors who perform safety-sensitive
functions must meet all requirements of Parts 655 & 40 They
must have: Compliant policies Clearly identified categories of
covered employees Readily apparent pre-employment processes All
applicable training & certifications Info for a qualified SAP
MIS Compliance 139
Slide 140
CONTRACTOR APPLICABILITY 140
Slide 141
CONTRACTOR OVERSIGHT - TESTING Contractors must perform
compliant testing: Random Testing Adequately Spread Minimum Testing
Rates You can absorb a contractors ss emps into your pool
Post-Accident Testing Must meet FTA testing thresholds, time
requirements Return-to-Duty/Follow-up Testing Compliant, Spread,
Documentation in Place 141
Slide 142
THIRD-PARTY ADMINISTRATORS TPAs work for you ask them lots of
questions! Be aware of the functions they may be performing for
you: Are they doing your random pulls? Are they maintaining
records? Are they securing vendor qualifications? Are they
reporting results? Consistently and in a timely fashion? Do they
assist in MIS assembly? 142
Slide 143
THIRD-PARTY ADMINISTRATORS CONT. If youre in a consortium, is
your TPA: Submitting blinds, if applicable? (2000+ emps in pool)
Testing at the appropriate minimum rate? TPA Prohibitions: May not
stand in for DER (you!) May not transmit results from lab to MRO
May not transmit alcohol pos from BAT to DER Remember, you are
responsible for your TPAs 143
Slide 144
VENDOR OVERSIGHT Be aware of each vendors role, and monitor
their compliance as best you can MROs are regulated by Part 40,
Subpart G (40.121- 40.169) SAPs are regulated by Part 40, Subpart O
(40.281- 40.313) Collection Sites are regulated by the bulk of Part
40 Check CCFs and ATFs as soon as they come in! New Custody and
Control Forms must be used starting October 1, 2011. In the
meantime, collector must write testing agency (FTA, FMCSA, etc.)
into Step 2 of CCF 144
Slide 145
VENDOR OVERSIGHT COLLECTIONS The Traveling Public US Congress
US DOT FTA You Coll/BAT 145
Slide 146
INTERNAL AUDITS You can audit your own system, your
contractors, or your vendors youre responsible for all of them The
interviews used by FTA auditors to determine compliance are
available for download at http://transit-
safety.fta.dot.gov/Safety/DATesting/Audithttp://transit-
safety.fta.dot.gov/Safety/DATesting/Audit If you find problems,
require remediation 146
Slide 147
QUESTIONS OPEN Q&A FOR: CONTRACTOR & VENDOR OVERSIGHT
147
Slide 148
BREAK 148
Slide 149
655.72(a) states: Each recipient shall annually prepare and
maintain a summary of the results of its anti- drug and alcohol
misuse testing programs performed under this part during the
previous calendar year. This is (DA)MIS Due Date Website Usage
How-to Retention 149 THE D&A MANAGEMENT INFO SYSTEM
Slide 150
MIS REPORTING - BASICS Reporting to the D&A MIS system is
required annually, by March 15 th Submit all information accurately
and in a timely fashion (655.72(c)) Online reporting is quick and
easy: http://damis.dot.gov Contact the Volpe Center for assistance:
617.494.6336 http://[email protected] http://[email protected] 150
Slide 151
MIS REPORTING DOTS USAGE FTA Uses MIS Reporting Data to:
Recognize trends in use and abuse Objectively determine and analyze
the effectiveness of the testing program Demonstrate industry
compliance to DOT & Congress Determine future random testing
rates Schedule D&A compliance audits Note: A low positive rate
might be a reason for an audit just as much as a high positive
rate! 151
Slide 152
MIS REPORTING HOW TO If youre a pass-through (MPR, State, etc.)
Fill out your MIS forms with zeros Make sure your contractors/subs
get their info in If youre a grantee or contractor/sub-recipient
Calculate number of employees To calculate the total number of
covered employees, add the total number of covered employees
eligible for testing during each random testing selection period
for the year and divide that total by the number of random testing
periods. Enter number of results in appropriate column If you have
a TPA and/or are in a Consortium Be sure to include the TPAs name
on your MIS 152
Slide 153
MIS REPORTING HOW TO, CONT. If youre regulated by multiple DOT
agencies: 1.Submit separate MIS reports, one to each agency 2.Do
not double-report Submit each SS Emp where he performs the most
work If you dont know, just pick one! 153
Slide 154
MIS REPORTING HOW TO, CONT. Safety Sensitive Emps FTA FTA MIS
FMCSA FMCSA MIS 154
Slide 155
MIS REPORTING - RETENTION MIS Reports must be maintained for
five (5) years Remember that if youre in a consortium, you may
locally test below the FTA minimums dont worry! 155
Slide 156
QUESTIONS OPEN Q&A FOR: MIS REPORTING 156
Slide 157
These practices and procedures might help you to more easily
manage your testing program Policies Forms Logs Pre-employment
Random Post-Accident Reasonable-Suspicion RTD/FU 157 BEST
PRACTICES
Slide 158
POLICIES Use a model policyMake sure its locally appropriate
Keep it up to date (the regs change and grow!) 158
Slide 159
FORMS Previous Employer Requests Notification & Result
Tracking Pre- employment Notification & Result Tracking
Deterrent Spread Compliance Random Decision-making Process
Post-accident Time-frame Compliance Post-accident Condition
Summary, Decision Process Time-frame Compliance Reasonable
Suspicion 159
Slide 160
LOGS Basic logs can help you keep constant, accurate info about
your compliance status Use a basic spreadsheet to collect pertinent
info Add charts, links, macros go nuts! Be sure to keep sensitive
data secure 160
Slide 161
PRE-EMPLOYMENT TESTING Keep pre-employment negatives beyond
FTAs retention requirement Keep them as long as you employ the
individual Record date of safety- sensitive duty In addition to
date of hire 40.25 Log your good-faith efforts 161
Slide 162
RANDOM TESTING Systematic Pool Maintenance To spread tests,
track your progress Its easier than it sounds Not as many tests as
you think need to be off-hours Early/Late Alcohol Testing 162
Slide 163
RANDOM TESTING FULL CIRCLE POOLSELECTNOTIFYTESTRESULTFILE
163
Slide 164
POST-ACCIDENT TESTING Awareness of the Regs, Consistent
Training Dispatchers Employees Supervisors Management Good, guiding
forms Review and learn from mistakes 164
Slide 165
REASONABLE SUSPICION TESTING Awareness of the Regs, Consistent
Training Complete Event Package Extensive documentation All the
facts Policy awareness Appropriate action 165
Slide 166
RTD/FOLLOW-UP TESTING Know the Facts Know the Case-specific
Requirements Case Awareness SAP MRO Communication Up-to-date
Tailored to each plan Follow-up Log/Schedule 166
Slide 167
OVERSIGHT Internal Self-audit Robust training Consistent
communication Contractors Audit Periodic compliance (beyond MIS)
Training assistance Vendors Audit Periodic compliance certification
Continuous product analysis 167
