HOW TO DEVELOP YOUR FTA DRUG & ALCOHOL POLICY

HOW TO DEVELOP YOURFTA DRUG & ALCOHOL POLICY • Presented by: Leila Procopio-Makuh, C-SAPA

Federal D&A Testing Authorities for Public Transit Employers • US Department of Transportation (DOT) 49 CFR Part 40 (Procedures for Transportation Workplace Drug and Alcohol Testing Programs) • Federal Transit Administration (FTA) 49 CFR Part 655 (Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations)

FTA 49 CFR Part 655 Answers the questions: • Why is testing required? • Who is subject to testing? • When is testing authorized? • What are the consequences for non-compliance? • What are the training requirements?

DOT 49 CFR Part 40 Answers the questions: • What substances to test for? • How is testing conducted? • What are the return-to-duty and follow-up testing requirements following a violation? • What are the qualification requirements and responsibilities of the service agents? • What are the record keeping and reporting requirements?

FTA Minimum Policy Requirements (Sec. 655.15) • Identity of the contact person • Categories of safety-sensitive employees • Specific information concerning the behavior and conduct prohibited by Part 655 • Testing circumstances

FTA Minimum Policy Requirements (cont’d.) • Testing procedures • Requirement that all covered employees submit to drug and alcohol testing required by Part 655 • Behaviors that constitute test refusal • Consequences for positive drug or alcohol test results or test refusal

FTA Minimum Policy Requirements (cont’d.) • Consequences for an employee with an alcohol test result of 0.02 BAC or more but less than 0.04 • Employer’s action concerning negative-dilute test results

I. Contact Person • Employer must specify in the policy who the designated contact person is who is qualified to answer questions about the employer’s drug and alcohol policy and program. This is usually the DAPM or DER. • Must include name or office, address and phone number.

II. Categories of Safety-Sensitive Employees • Operator of a revenue service vehicle even when not in revenue service • Operator of a non-revenue service vehicle that is required to be operated by a CDL holder • Maintenance employee who works on revenue service vehicles or equipment used in revenue service.

II. Categories of Safety-Sensitive Functions (cont’d.) • Employee who controls movement or dispatch of a revenue service vehicle • Security personnel that carry firearms.

III. Prohibited Behaviors - Drugs • Unless legally prescribed, all 5 drugs in the DOT panel (MOPAC) are illegal; therefore, they are prohibited at all times • Warn employees that even off-duty use may result in an on-duty positive • Employees may be tested for illegal drugs anytime they are on duty or subject to duty.

III. Prohibited Behaviors – Alcohol • Alcohol consumption is prohibited: - Within 4 hours of performing S/S functions; - While on-duty or on call; or - Within 8 hours following a vehicle accident that requires testing, or until the employee undergoes the tests

III. Prohibited Behaviors – Alcohol (cont’d.) No covered employee with an alcohol test result of 0.02 – 0.039 BAC can perform any S/S work until the employee’s alcohol concentration measures less than 0.02 in a retest, or the start of the employee’s next regularly-scheduled work day, if at least 8 hours from the test

IV. Testing Circumstances • Pre-employment (Sec.655.41 and 655.42) • Reasonable Suspicion (Sec. 655.43) • Post-Accident (Sec. 655.44) • Random (Sec. 655.45) • Return-to-Duty (Sec. 655.46) • Follow-up (Sec. 655.47; Part 40, subpart O)

Pre-employment Testing Requirements • Drug testing required; alcohol testing allowed • Test all employment candidates for S/S positions and those transferring from non-S/S positions • Employer must receive MRO report of verified negative drug test result before allowingemployee to perform any S/S work (including B-T-W training). • If first test is canceled, employee must retake and pass the test.

Pre-employment Testing Requirements (cont’d.) • Pre-employment drug test is required for any employee who has performed safety-sensitive function for at least 90 days (for any reason) and has been out of the random pool during that time

Previous Employer D&A Background Checks • With individual’s written consent, employers must request the following information from any DOT-regulated employer during the previous 2 years: - Alcohol test results of 0.04 or higher; - Verified positive drug test results; - Test refusals (including adulteration or substitution; and - Other violations of DOT D&A testing rules.

Previous Employer D&A Background Checks (cont’d.) • If there is a record of violation, employee must provide proof of successful completion of DOT return-to-duty process before performing any S/S work

Reasonable Suspicion Testing • Shall be based on specific, contemporaneous, articulable observations concerning the employee’s appearance, behavior, speech, or body odors • Testing referral must be made by a trained supervisor or company official • Employer must document reason for RS testing referral and keep documentation for at least two years

Reasonable Suspicion Testing for Alcohol • Observation must be made during, just before, or just after the employee’s performance of S/S work • If not conducted within 2 hours, document reason for delay • If not conducted within 8 hours, cease all attempts to test and document reason for failure to test

Post-Accident Testing Required after an accident involving the operation of a vehicle (bus, electric bus, van, automobile, rail car, trolley car, trolley bus, or vessel)

FTA Criteria for Post-Accident Testing • When there is a fatality: - Test surviving employee(s) operating the vehicle at time of accident - Test any other S/S employee whose performance could have contributed to accident • Decision of who to test is based on best information available at time of accident

FTA Criteria for Post-Accident Testing (cont’d.) • After non-fatal accidents involving: - Injury requiring immediate medical treatment away from scene - Disabling damage to any vehicle involved - Removal from service (ONLY if vehicle is a rail car, trolley car, trolley bus, or vessel)

FTA Criteria for Post-Accident Testing (cont’d.) • After non-fatal accidents: - Test the driver unless his/her performance can be completely discounted as a contributing factor - Test any other S/S employee whose performance could have contributed to the accident, as determined by the supervisor or manager using the best information available at the time of the accident

Post-Accident Testing Time Requirements • Employees must remain “readily available” for testing • Conduct alcohol test within two (2) hours of accident. If delayed, document reason for delay • Cease all attempts to alcohol test after eight (8) hours and document reason. • Conduct drug test within 32 hours of the accident

Post-Accident Testing Time Requirements • All testing will be stayed while individuals receive appropriate medical attention

Random Testing • Selection must be made by scientifically valid method, e.g., a computer-based number generator matched with a unique identifying number • Each S/S employee must have an equal chance of being tested each time a selection is made • Management must have no discretion on who to test and for which substance

Random Testing Requirements • Must meet the minimum testing rates established by the FTA • 25% for drugs and 10% for alcohol • Employers can exceed minimums • Must be unannounced, unpredictable, and spread reasonably throughout calendar year, the testing period, days of the week, and all hours that S/S functions are performed

Random Testing Requirements (cont’d.) • Employees who do not proceed immediately once notified may be deemed to have refused testing • Random alcohol testing may be performed only during, just before, or just after the employee performs any S/S work • Random drug testing may be conducted anytime the employee is on duty

Return-to-Duty Testing • Before a covered employee is allowed to return to S/S duty following a policy/rule violation, the employee must: - Complete the SAP-recommended education and/or treatment program; and - Pass a return-to-duty drug or alcohol test. • If return-to-duty test is canceled, employee must retake and pass a second test

V. Drug Testing Procedures • Detailed discussion of Part 40 procedures is not required. Policy can simply state that drug testing is conducted in accordance with 49 CFR Part 40, and have a copy of detailed Part 40 available to interested parties upon request

Alcohol Testing Procedures • As with drug testing procedures, discussion of detailed procedures is optional • Only breath or saliva is allowed for initial testing • If initial test reads 0.02 BAC or higher, a confirmatory test must be conducted

VI. Employee Testing Requirement Policy must include a statement that as a condition of employment, all covered employees must submit to drug and alcohol testing required by FTA 49 CFR Part 655

VII. What Constitutes a Test Refusal? Any of the following circumstances: • Failure to appear for any test (except pre-employment) within a reasonable time after being notified to go • Failure to remain at the testing site until the testing process is complete • Failure to provide a specimen for any drug or alcohol test required by DOT/FTA rules

VII. What Constitutes a Test Refusal? (cont’d.) • Refusal to allow the observation or monitoring of a specimen collection when it is required • Failure to provide a sufficient urine or breath sample without an adequate medical explanation for the failure • Failure to take a second test that the employer or collector has directed the employee to take

VII. What Constitutes a Test Refusal? (cont’d.) • Failure to undergo a medical exam as directed by the employer or the MRO as part of the verification process, or “shy bladder” or “shy lung” procedures • Failure to cooperate with the testing process (Examples: refusal to empty pockets when requested, behaving in a confrontational manner that disrupts the process, or failure to wash hands after being directed to do so by the collector)

VII. What Constitutes a Test Refusal? (cont’d.) • For an observed collection, failure to follow the observer’s instructions to raise clothing above the waist, lower clothing and underpants to mid-thigh, and to turn around to allow the observer to see if employee is wearing a prosthetic or similar device that could be used to interfere with the collection process • Possession or wearing of a device as described above intended to help the employee pass the drug test

VII. What Constitutes a Test Refusal? (cont’d.) 11. Admitting adulteration or substitution of the specimen to the collector or the MRO 12. If the MRO reports a verified adulterated or substituted test result 13. In alcohol testing, refusal to sign Step 2 of the Alcohol Testing Form 14. Leaving the scene of the accident without just cause prior to submitting to a required test. (See 655.44(c ). Employer decision)

VIII. Consequences for Policy/Rule Violation • Immediate removal from performance of S/S duties • Referral to a SAP for evaluation and treatment resources • Assessment of employer disciplinary policy

IX. Consequences After a Confirmed Alcohol Test Result at 0.02 but below 0.04 BAC • Immediate removal from S/S duties for at least 8 hours, or • Until the employee is retested and the BAC is less than 0.02

X. Employer’s Action Following a Negative-Dilute Test Result • If creatinine is between 2- 5 mg/dL: - Employer must retest employee immediately under direct observation • If creatinine is above 5 but below 20 mg/dL: - Employer may retest employee immediately, but not directly- observed. Specify this in the policy.

Additional Employer Requirements • Employers can implement additional requirements as long as they are not inconsistent with, contrary to, or frustrate the provisions of Part 655 • Must be clearly identified as employer requirements, as opposed to Part 40 or Part 655 requirements • Non-DOT/FTA tests must be conducted on non-Federal CCFs or non-DOT ATFs using specimen from a separate void • Must keep DOT records separated from company-authority test records.

Examples of Additional Employer Requirements • Including testing for non safety-sensitive employees • Testing for additional drugs beyond the “Big 5” (MOPAC) • Post-accident testing beyond the FTA criteria. (Ex: using a dollar threshold) • Drug-Free Workplace Act provisions • Prescription and OTC medications provisions

Recommended Policy Provisions • Purpose • Preemption of state and local laws Suggested language: “If any conflict occurs between State and local laws and any requirement of the above-mentioned Federal regulations, the Federal regulations prevail. However, Federal regulations do not preempt provisions of State criminal laws that impose sanctions for reckless conduct attributed to prohibited drug use or alcohol misuse, whether the provisions apply specifically to transportation employees, employers, or the public in general.” • Definitions • Description of education and training program • Circumstances that result in directly-observed collections • Requirements and limitations concerning split specimen testing.

Split Specimen Testing • Must be requested by employee within 72 hours of notification of test result • No split specimen testing authorized for an invalid test result • Conducted at a second DHHS-certified laboratory without regard to cut-off levels • Employers may require employees to pay for split specimen tests. Specify this in policy - As long as employee request is timely, employer must make sure it is conducted on a timely basis regardless of the employee’s ability to pay

Optional Policy Elements • Pre-employment alcohol testing • Retest after negative-dilute with higher creatinine level ( 5 – 20 mg/dL) • Higher random testing rates • Removal of employee from performing S/S functions after Reasonable Suspicion testing, while awaiting test results • Detailed discussion of testing procedures within the policy • Requirement for employee to pay for split specimen testing, SAP services, return-to-duty and follow-up tests

Policy Dissemination • Employers must provide written notice of the policy to all covered employees and representatives of labor unions • Should obtain acknowledgement or confirmation of employee receipt of policy

How Can You Tell If Your Policy Is In Compliance? FOR A LIST OF QUESTIONS AUDITORS ASK CONCERNING DRUG & ALCOHOL POLICY DURING AN FTA COMPLIANCE AUDIT, GO TO THE FTA WEBSITE. http://transit-safety.volpe.dot.gov/DrugAndAlcohol/TechnicalAssistance/default.asp

Resources • FTA Office of Safety & Security www.fta.dot.gov Click on “Safety & Security” Phone: (617) 494-2395 • DOT Office of Drug and Alcohol Policy and Compliance www.dot.gov/ost/dapc Phone: (202) 366-3784 • Transportation Safety Institute www.tsi.dot.gov Phone: (405) 954-2336 – Course Manager

Questions & Answers Leila Procopio-Makuh, C-SAPA will be available for questions immediately following this presentation PDW Room

HOW TO DEVELOP YOUR FTA DRUG & ALCOHOL POLICY