FTA Drug and Alcohol Regulation Updates, Issue 53, January ... FTA Drug and Alcohol REGULATION . UPDATES

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  • FTA Drug and AlcoholR E GULATION UPDAT E S

    Alternate Selections in Random TestingIndividuals selected for random

    testing will be legitimately unavailable

    for testing. It is essential to document

    the reason that a person selected for

    testing cannot be tested. Federal Transit

    Administration (FTA) allows alternate

    selections to be tested only when the

    entire original random draw list has

    been expunged. An alternate may

    replace a name on the original random

    selection list only when it is certain that

    the original name drawn cannot be tested

    through the remainder of that selection

    period. An alternate may not be selected

    only because an originally selected name

    is out the day of the scheduled test but

    will return prior to the end of the

    selection period.

    If an employer decides to select

    alternates as part of its random selection

    method, it can be done in two ways:

    1) having some employees specifically

    selected and identified as an alternate

    when the random selections are made,

    and 2) selecting an alternate during the

    IN THIS ISSUE 2 Post-Accident: What is the

    Best Information Available?

    3 Is Your EBT Compromising Your Compliance?

    7 Early Morning and Late Night Alcohol Tests Part 2: How to Accomplish Them

    Alternative Methodologies for Drug Testing

    random selection period, as needed.

    When you discover a person selected

    for testing will not be available for the

    remainder of the testing period, it is

    legitimate to make a random selection of

    an alternate person to be tested. In both

    Some industry groups believe the U.S. Department of Transportation (DOT)

    should allow the use of alternative specimen drug tests hair, oral fluids, and sweat

    samples to detect the use of controlled substances as an alternative to testing urine.

    The DOTs drug testing policy is unchanged: The DOT continues to require testing

    of urine specimens only.

    All testing must have Health and Human Services (HHS)-approved testing

    protocols and HHS laboratory certification procedures in place. Those HHS testing

    protocols and certification procedures are currently exclusive to urine testing. l

    ( iStockPhoto/pagadesign)

    methods of selecting alternates, the type

    of test (drug, alcohol, or drug and alcohol)

    will be the same as the employee they

    are replacing. Employees selected as an

    alternate can only be tested as an alternate

    and only in the order in which they were

    selected. In some random selection periods,

    it is probable that some or all of the

    alternates on the list will not be tested.

    The rules for random testing apply

    to the discrete selection of the alternate

    person. The selection must be made by a

    valid scientific method and management

    has no discretion as to who will be selected

    and whether that person, once selected,

    will actually be tested.

    FTA allows alternate selections

    and testing. The agency recommends, if

    possible, that extra names be drawn in the

    first couple of selection periods to ensure

    that the minimum 25 percent/10 percent

    requirement is met, eliminating the

    necessity for alternate draws. l

    53January 2014

    I S S U E

  • 2 FTA Drug and Alcohol REGULATION UPDATES

    Post-Accident: What is the Best Information Available?

    Remember, your obligation is to make a decision. You are not obligated or expected to weigh all eventual facts and circumstances that later arise.

    In FTA post-accident testing, a

    misconception exists regarding the

    determination of whether or not to

    order a test. The FTA regulations require

    a responding supervisor or authorized

    company official, as soon as practical,

    to use the best information available at

    the time of the decision to order a post-

    accident test under FTA authority.

    What Does Best Information Available Actually Mean?

    This term refers to any and all

    information observed or learned

    during the on-site portion of an

    accident investigation. This includes the

    operators account as well as input from

    passengers, law enforcement, witnesses,

    and forensic evidence concerning road

    conditions, traffic configurations, and

    vehicle positioning. The information

    available at the time is what should be

    considered in the post-accident deter-

    mination, regardless of what facts may

    later emerge. In FTA-defined accidents,

    there are often instances when company

    officials learn of circumstances hours,

    days, or even weeks after an accident. Had

    those facts been known at the time of the

    saying Had I known that, I would have

    never tested the driver or Had I known

    that, I would have certainly tested the

    driver, you have done nothing wrong.

    Remember, your obligation is to

    make a decision. You are not obligated or

    expected to weigh all eventual facts and

    circumstances that later arise. Further,

    your determination to order a test should

    not be delayed while you await further

    post-accident information. For example,

    if an onboard camera is easily viewable

    at the scene, it may be used to determine

    whether or not to test. If the cameras

    footage is not readily viewable or will

    delay the determination, it should not be

    factored as it will delay the test.

    Supervisors and company officials

    should remember that the FTA will

    support their decision either way, as long

    as the official clearly documents their

    decisions, and those decisions are based

    on the best information available at the

    time the decision was made. l

    ODAPC Great Source of Information and Technical Assistance Materials

    The Office of Drug and Alcohol

    Policy and Compliance (ODAPC) advises

    the Secretary of the Department of

    Transportation on national and interna-

    tional drug testing and control issues and

    is the principal advisor to the Secretary

    on rules related to the drug and alcohol

    testing of safety-sensitive transportation

    employees in aviation, trucking, railroads,

    mass transit, pipelines, and other transpor-

    tation industries. ODAPC also provides

    free technical assistance materials that are

    helpful to any employer that is required

    to have a DOT-compliant drug and

    alcohol testing program. Some of the

    more popular materials are: Current List of HHS-Certified

    Laboratories

    An Employer Handbook (What Employers Need to Know About Drug & Alcohol Testing)

    An Employee Handbook (What Employees Need to Know About Drug & Alcohol Testing)

    Mock Collection Video

    DOTs 10 Steps to Collection Site Security and Integrity

    Alcohol Testing Form (ATF) and Federal Custody and Control Form (CCF) suppliers

    ODAPC also provides DOT regulatory

    interpretations, technical assistance, and

    information to the public. Go to http://

    www.dot.gov/ODAPC for a full list of

    materials and services. l

    accident investigation, it would have altered

    the determination. Facts that emerge later

    could discount an employee who was not

    completely disregarded as a contributing

    factor, during the initial investigation. If

    you, as a company official, find yourself

  • Is Your EBT Compromising Your Compliance?

    RECOMMENDED FIX: CREATE A

    SCHEDULE. Be proactive and schedule

    battery changes before they die. Add a

    reminder to annual calendars to do this

    at least once a year. For example, replace

    the batteries when clocks are changed to

    Daylight Savings Time.

    EBT CLOCK NOT UPDATED

    WITH SEASONAL TIME CHANGES.

    Make sure EBT clocks and dates are

    changed every spring and fall with Daylight

    Savings Time. Also, be aware of leap years.

    3 FTA Drug and Alcohol REGULATION UPDATES

    Every time the internal clock is changed,

    also verify the date has not been reset or

    that other essential information has not

    been replaced with default values.

    RECOMMENDED FIX: ADD SEA-

    SONAL TIME CHANGE REMINDERS.

    Add reminders to annual calendars at the

    beginning of each year. DAPMs should

    also schedule a reminder to contact service

    agents to ensure the time changes have

    been addressed. (continued on next page)

    Part of a covered employers responsi-

    bility is to provide oversight to its service

    agents. When reviewing a service agent

    who provides breath alcohol tesing

    services for a DOT alcohol testing

    program, the employer must ensure the

    service agents Evidential Breath Testing

    (EBT) device is approved and listed on

    the National Highway Traffic Safety

    Administrations (NHTSAs) Conforming

    Products List (CPL). The EBT device

    must meet the following specifications:

    generates a printout with all of the infor-

    mation required by the DOT regulation, is

    maintained and calibrated consistent with

    the manufacturers Quality Assurance

    Plan (QAP), and meets all DOT require-

    ments specified in 40.231 (See article in

    Issue 52 of the FTA Drug and Alcohol

    Regulation Updates newsletters). As such,

    Drug and A