Spring 2007 New York Rural Transit Conference Drug and Alcohol Program Overview

1. Spring 2007New York Rural Transit Conference Drug and Alcohol Program Overview Presented by: Beverly Krieger, CSAPA Precision Compliance, Inc bkrieger@precisioncompliance.com

2. Drug and Alcohol Program Overview • Pre-employment highlights (655.41) • Employer may hire an applicant prior to receiving the drug test resulthowever, the new employee can not perform safety sensitive duties until the negative results are received • A pre-employment test must be taken if an employee is off duty for more than 90 days and out of the random pool. Employees should be removed from the pool if it is known that the individual will not perform SS duties during the period

3. Drug and Alcohol Program Overview • Pre-employment, cont. • Pre-employment test must be done within 90 days of hire. • (655.25) An employer must ask if an applicant had failed a pre-employment test previously • Must prevent proof of successful completion of a return to duty process

4. Drug and Alcohol Program Overview • Pre-employment, cont. • (40.25) An employer must request drug and alcohol information from past employers (DOT) from the previous 2 years • Must have applicant’s signature • Must be received within 30 days • Document a good faith effort to obtain the information

6. Drug and Alcohol Program Overview 655 and Part 40 Issues • Are dispatchers safety sensitive? • Individual employer’s decision • Evaluate if your “dispatcher” controls the movement of your vehicles. • Be ready to justify your decision.

7. Drug and Alcohol Program Overview • Maintenance Contractors (definitions:655.4) • Includes • Engine and major component overhauls and rebuilds • Exemptions • Warranty work is exempt • 5311 Recipients • Recipients of 5309 and 5307 funds that serve populations of 200,000 or less

8. Drug and Alcohol Program Overview • 19A • 19A (Part 6 of the Commissioner's Regulations) does NOT require any drug tests.  Systems seem to confuse the federal requirements with state requirements.  • During the annual physical for school bus drivers or biennial physical for bus drivers, a doctor is supposed to look for signs and symptoms of drug or alcohol use.  If the physician suspects something he/she could order a test or just fail the person on their physical.  Any requested drug test must be done on a non-Federal Custody Control Form.

9. Drug and Alcohol Program Overview • Policy Approval • The company’s policy must be approved by • Governing Board • Highest Ranking Official • Reasonable Suspicion Clarification • Trained Company officials as well as supervisors and “lead people” may make determinations. • If testing timeframes are not met documentation must be made as to the reason.

10. Drug and Alcohol Program Overview • Consent Forms • Section 40.27 prohibits the use of consent forms releases, waivers, indemnifications or any other form that is not part of the DOT procedures. • This also pertains to service providers (collection sites). • Laboratory Statistics • Section 40.111 The laboratory must transmit (twice a year) an aggregate statistical summary of drug tests by employer. (appendix B)

11. Drug and Alcohol Program Overview • Included in the Lab Statistics Summary (no employee names) • Number of specimen results reported total • Total by type • Number of specimens reported as • Negative • Negative dilute • Number of of rejected specimens and the reason • Number of specimens reported as positive total and by drug • Adulterated specimens-total • Substituted specimens-total • Invalid results-total

12. Drug and Alcohol Program Overview • Post Accident Clarification • (655.44) The supervisor must document the testing decision and the decision-making process for each accident. • Be sure to train supervisors to use the post-accident form for every accident whether they test the employee or not.

13. Drug and Alcohol Program Overview • Collection Site Procedure • Develop a procedure for notifying site regarding employee’s arrival time and information regarding notifying the DER • Review prior to collection • All water sources turned off and bluing in the receptacle • Secure toilet tank top or use bluing • Ensure undetected access is not possible • No chemicals (soap, bleach etc) in the toilet area • Secure areas suitable for concealing contaminants • Donor instruction in specimen area • Secured area for specimens and collection procedures

14. Drug and Alcohol Program Overview Site Audit • Has the site received documented training? • Does the site have a copy of the new regulations and is the collector familiar with them? • Are the supplies readily available? • Are the your CCFs available? Non-DOT Forms? • Does the collector inspect the voiding area prior to the collection • Is there a procedure for contacting the DER • Is the donor asked for a photo ID? • Is the employee asked to wash his/her hands prior to giving a specimen?

15. Drug and Alcohol Program Overview • Is there a locked area for the donor’s personal items • Does the specimen stay in sight of the donor and collector until the process is finished and the samples are sealed? • Does the donor initial the bottle seal after it is placed on the specimen bottle? • Does the collector understand what to do if there is insufficient volume? • Are the specimens kept in a secure location while waiting for the courier? • Does the collector understand the observed specimen collection protocols?

16. Drug and Alcohol Program Overview • Employer - Mandatory observed collections no advanced notice to the employee • The Lab reported to the MRO an invalid specimen and there is no medical reason • The MRO reports the original positive, adulterated, or substituted result was cancelled due to the split being unavailable • You may require a Return to duty or follow-up test to be observed

17. Drug and Alcohol Program Overview • Collector – Mandatory Observed Collections • Directed by the DER • Observed materials brought to the collection site • Employee’s conduct clearly indicates a clear attempt to tamper or adulterate • Temperature on the original specimen was out of range • Original specimen appears to have been tampered with

18. Drug and Alcohol Program Overview • SAP Responsibilities • Evaluate type and amount of assistance needed by employee • Determine if employee successfully completed recommended treatment • Confer with treatment professionals • Conduct face to face interview • Provide a written report to the DER • Specific guidelines for reports are in 40.311 • Determines when employee is ready to return-to-work and follow-up testing duration and frequency • Referrals are required for all positive tests

19. Drug and Alcohol Program Overview • Auditing your SAP • Does the SAP conduct a face to face evaluation with the donor? • Does the SAP always recommend some assistance, either treatment or education? • Does the SAP evaluate if an employee successfully complied with the recommended assistance? • Does the SAP provide a written report to the you? • Does the SAP establish the appropriate time for a return to duty test? • Does the SAP recommend the duration and frequency of the follow-up tests?

20. Drug and Alcohol Program Overview • Test Results-Paper Trail • Employer Copy of the Custody and Control Form • Sent immediately from the collection site • MRO Final Drug Test Result • A copy (not the original) of the MRO Copy of the CCF • May generate a report including (40.163) • Full name of the donor • Specimen ID number • SSN or Employee number • Reason for the test • Date of collection • Result of the test and the date the result was verified • For a positive, the drug(s) for which the test was positive • For cancelled,refusal, the reason for the determination

21. Drug and Alcohol Program Overview • Verified test results • Negative:no action • Negative dilute:employer may retest (be consistent) • Positive: rule violation • Positive dilute: rule violation • Test refusal:rule violation • Insufficient volume (medical explanation): cancelled • Insufficient volume (no med explanation): test refusal • Insufficient volume (long term disability): Negative • Fatal flaw rejected for testing: cancelled • Fatal flaw (pre-employment/ rtn to duty): cancelled, retake

22. Drug and Alcohol Program Overview • Invalid result (medical explanation): cancelled • Invalid result (no medical explanation): cancelled and retest under direct observation • Primary positive/split fails to reconfirm: cancelled • Primary adulterated/substituted, split fails to reconfirm adulteration or substitution: cancelled • Primary positive/ adulterated/substituted and split unavailable or invalid: cancelled: retest under direct observation • Primary positive, split fails to reconfirm but isadulterated: test primary for adulteration

23. Drug and Alcohol Program Overview • Employee notification – non negative • Notify employee of confirmed positive, adulterated, etc. • 3 attempts in 24 hours • If unable to contact, notify the DER • Results not discussed • The DER should instruct employee to contact MRO • If no contact within 24 hours, DER to leave message and notify the MRO • Verify test results without interview • Employee refuses to discuss results with MRO • After contacted by DER, Employee does not get in contact with MRO. Result in 72 hours • No contact with donor in ten days after a good faith effort

24. Drug and Alcohol Program Overview • Random Testing • *New Minimum Random Drug Testing Rate of 25% (FTA) • Less than 12 employees should test at 50% • Be sure to document the time of the employee notification • Document the reason why an employee would be chosen but not tested within the testing period • Spread testing throughout the hours of operation, days of the week, etc. • Be sure to get a hard copy of the random selections

26. Drug and Alcohol Program Overview • Be sure to review your CCF to ensure that: • The employer’s name (your name) is in the appropriate space on the upper left hand corner of the CCF • Also the employer’s, phone and fax number is required in the same area. • The MRO’s name, address, fax and phone number must appear in the appropriate section • The C/TPA may have their name on the CCF • All custody and control forms must be reviewed for errors in documentation even if they do not cause fatal flaws i.e. “ghost initials”

28. Drug and Alcohol Program Overview • Employer’s Responsibilities • (40.15) Ensuring that the service agents you use meet the qualifications. “Your good faith use of a service agent is not a defense in an enforcement action initiated by a DOT agency “ • (40.345) A C/TPA may act as an intermediary in the transmission of drug and alcohol testing IF the employer chooses. • Security system must be in place to receive results or speak with the MRO • Employer must receive positive alcohol results • (40.351) On your request a C/TPA must transfer all records immediately.

29. Drug and Alcohol Program Overview • Self Audit • Review your procedures for all testing events and the accompanying forms • Review your paper-trails and accompanying documentation • “DOT tests must be completely separate from non-DOT tests in all respects.” • Graph the times and days of your random tests • Be sure your MRO is sending signed (or stamped for negatives) complete results for each test which include: • Be sure you have documentation of your employee education and supervisory training, including the content of the training

30. Drug and Alcohol Program Overview • The employee education component of the program shall include • display and distribution to every covered employee of: • informational material and a community service hot-line telephone number for employee assistance, if available.” (655.14)

31. Drug and Alcohol Program Overview • Program Forms • Pre-employment acknowledgment • Previous employers records • Policy Acknowledgment • Accident/incident decision making form • Referral to SAP • Reasonable Suspicion documentation form • Collection site request for test with DER information • Collection site audit form

32. Drug and Alcohol Program Overview • Resources • 49 CFR part 40 • www.dot.gov/ost/dapc/regulations.html • 49CFR part 655 • www.transit-safety.volpe.dot.gov/safety/DATesting/Regulations • Back issues of the FTA Updates • www.transit-safety.volpe.dot.gov/Safety/DATesting/Newsletters • Collection Procedures • www.dot.gov/ost/dapc • Employee Education Video and Handbook • http://www.cutr.usf.edu/byrnessamsite • Supervisory Awareness Training Video & Handbook • http://transit-safety.volpe.dot.gov/safety/datesting/reasonablesuspicion.asp • SAP Guidelines • WWW.dot.gov/ost/dapc/prog_guidance • Organizations that train SAPs • www.dot.gov/ost/dapc/testingpubs/sapexam-sources_200605_alpha.pdf