Firefighters, Cities, and Drug/Alcohol Testing

Firefighters, Cities, and Drug/Alcohol Testing A Brief Case-study, and Guidance

Where it began Aug. 29, 2007 2 Boston Firefighters died during the Tai Ho Restaurant blaze September 2007 Mayor quietly orders Labor Relations Director John Dunlop to develop drug policy draft

October 4, 2007 “Autopsies find alcohol, some cocaine, 2 officials say”

October 4, 2007 “A source who was briefed by a person with knowledge of the autopsies of [Firefighter] and [Firefighter] told the Globe that one firefighter had a blood-alcohol level higher than .08, the level at which someone is too drunk to drive legally in Massachusetts. The other firefighter had traces of cocaine in his system, the source said.”

October 4, 2007 “A government official briefed on the findings of the state medical examiner's office said [Firefighter] registered a blood-alcohol level of .27 in the autopsy, which would have placed him at more than three times the legal limit, while [Firefighter] had cocaine in his system.”

.o8 or .27 bac? Traces? • .08 = 4 drinks • .27 = 13 drinks • Which number was it? • Traces of cocaine? Metabolites?

November 30, 2007 “Panel urges firefighter drug testing as part of overall wellness program”

Cahill Swift Sends Letter to City Hall & to Union Letter: • Urges caution when creating policy • Offers service as neutral 3rd party • Describes importance of Reasonable Suspicion Testing

April 29, 2008 “Firefighters rally to oppose drug, alcohol testing mandates”

Letter Received by Union • Union President Ed Kelly immediately contacts Cahill Swift • Schedules meeting • Expresses Union desire for fair and effective drug testing program enhancement

Letter Hand-Delivered to City Hall • No response

Union & City Hall Meeting • Union says they have identified neutral 3rd party for policy work • Gives City Hall Cahill Swift’s contact information • Urges City to verify expertise and neutrality, and to begin use

City Hall Contacts Cahill Swift • City Hall: “Do you normally work for labor or management?” • Cahill Swift: “Neither. We represent the process and the regulations.”

Union retains Cahill Swift exclusively, Policy work begins • Union and Cahill Swift examine other policies throughout Boston: Patrolman’s Union, EMT’s Union, etc.

Findings from other Policies • Hair testing is used • Randomness of program meritless • Changing parameters of testing thresholds

Cahill Swift Advises Ground Rules • No hair testing • Must be scientifically random • Must have as little room as possible for abuse in all directions • Must be based on federal testing regulations

City Hall Submits Draft Policy • A draft was received by the Union • Sent to Cahill Swift for analysis • Policy analyzed using same criteria as federal projects

What to Do When Testing is In the Wind …and what to do if you already have a policy

Win the PR WAR up-front • Consider making public declaration of support The public will generally not understand the complexities of: “We’re not opposed to drug testing, but we think that it should be included in collective bargaining process” VS. “The Union is opposed to drug testing” (One of these is an easier headline to sell papers)

Win the PR WAR up-front The public will generally not understand the complexities of: “We’re not opposed to drug testing, but we think that it should be included in collective bargaining process”

Win the PR WAR up-front in favor of “We’re not opposed to drug testing, but we think that it should be included in collective bargaining process” or “This is long overdue”

Lay your Ground Rules (internal) 1. No hair testing 2.Must be scientifically random 3. Must have as little room as possible for abuse in all directions 4. Must be based on federal testing regulations 5. Urinalysis & Breath-Alcohol or Saliva-Alcohol only 6. Audits

1. Hair Testing • No laboratory testing protocols • Confirmed racial bias • Leaves mark on each donor • Detects “use” and not “impairment”

Hair Testing • Extremely expensive • Rejected by USDOT as suitable testing method • Rejected by DoD as suitable testing method

2. Must be scientifically random • Clearly established testing rates (25-50%) • Scientifically valid randomization process • No official may have discretion as to selection • Each employee must have equal chance of being selected during each random draw

3. Must have as little room as possible for abuse in all directions • Notification process must be secure • “Refusal” designations must be clearly written

4. Must be based on federal testing regulations • Two regulations should be used: 49 CFR Part 40 & 49 CFR Part 655

Must be based on federal testing regulations • Part 40: Describes the required steps and structures for drug testing vendors (collection sites, collectors, Medical Review Officers, etc.) • Part 655: Describes the required steps and structures for the employees and employers

Must be based on federal testing regulations • The federal regulations provide the best possible structure for a fair program to both sides • Have been legally tested for over 10 years, in every possible manner and angle

Federal regulations and the PR War • “The city proposal was not strong or thorough enough” -The City will have a difficult time arguing against the use of a federal structure

5. Urinalysis & Breath-Alcohol or Saliva-Alcohol only • Urinalysis and breath-alcohol or saliva testing are the only testing methods which meet the USDOT accuracy requirements (>10,000) • Equipment requirements are clearly spelled out in the regulations, including calibrations, shipping requirements, reporting time-frames, and verbal verifications

6. Audits • Demand the right to have the program examined every 1-3 years • Are the collections being conducted accurately, as required by 49 CFR Part 40? • Is the equipment up-to-date? • Are the tests being spread fairly across work shifts, days of the week, and throughout the year?

Nuts and Bolts The real starting point

Policy • Two choices: • Wait for city draft proposal • Submit proposal

Policy • The written policy is the most important first step • Will be both blue-print and operating manual • Micro-changes: from “the fire department may” to “the fire department shall” will have enormous impact

Policy • Should be in plain English • Should be professionally evaluated (or, at minimum, checklisted against Part 655 Policy requirements) • Should take language directly from 49 CFR Part 655 when possible

Policy • Should clearly list refusals • After first year of the program, policy should be heavily dog-eared and notated

Policy • Random Testing rates: 25-50% for Drugs 10% for Alcohol *Random rates may be incentivized based on negatives

Policy • Establish only the following types of testing: -Random -Pre-Employment -Post-Accident -Reasonable Suspicion -Return-to-Duty -Follow-Up

Policy • Self-referrals must not be treated as positive (consistent with federal regulations) • EAP information and rights of employees should also be included

Policy • Since FTA or other USDOT mode program manager has no jurisdiction, clearly establish remedy for disputes about testing results, etc. -Revert to language of Policy -Grievance and Arbitration -Industry expert

Policy • Specify Firefighter exemptions: -Squeeze-throughs -Full alarms during testing -

Implementation of the Policy • Establishing vendors • Union and City should agree on criteria • Every single vendor should be considered • Require a TPA (Third-Party Administrator) for randomizations and notifications

Get the Troops Ready • Circulate the policy to all firefighters and members • Receive and maintain a “policy receipt” from each member • Have a training session, describing the program and the procedures, especially focusing on refusals

During the Program • If an error or improper procedure is noticed by member, grieve the matter AFTER the collection • Results may be overturned, but a refusal cannot

Presentation Dedication Anne, Shauna, Adam, and Brendan Cahill & Florence, Cheryl, Jonathan, and Jeremy Payne

Warren J. Payne Paul J. Cahill

Thank you, District 2 for allowing me this time, and thank you for your service

Firefighters, Cities, and Drug/Alcohol Testing