HOW TO WRITE A COMPLIANT ANTI-DRUG AND ALCOHOL MISUSE POLICY

1. HOW TO WRITE A COMPLIANT ANTI-DRUG AND ALCOHOL MISUSE POLICY Ed VanderPloeg FTA Auditor - Cahill Swift, LLC April 16-17, 2014

2. Introduction • Session topics/format • Functions of the policy • Required elements of the policy • Mechanics of developing a policy • Policy Review Exercise • Q & A – as we proceed, or at the end • Session goal • Equip everyone in the room to write a compliant policy, or analyze and fix a non-compliant policy

3. Functions of the Policy • Provide clear, concise guidance to employees regarding the DOT/FTA substance-abuse prevention program • Rights • Responsibilities (i.e., when testing will be done) • Prohibited actions • Function as a guide for the DAPM for program implementation • Protect the employer in case of employee objections/grievance following a positive test or other regulatory violation

4. Functions of the Policy (cont.) • Comply with 49 CFR 655.15 and 655.16 • Section 655.15: “The local governing board of the employer or operator shall adopt an anti-drug and alcohol misuse policy statement.” • Section 655.16: “Each employer shall provide written notice to every covered employee and to representatives of employee organizations of the employer’s anti-drug and alcohol misuse policies and procedures.”

5. Key Requirements of the Policy • Describe the categories of covered employees (i.e., define safety-sensitive function) • Operating a revenue service vehicle, whether in or out of service • Maintaining a revenue service vehicle or equipment used in revenue service • Controlling the dispatch or movement of a revenue service vehicle

6. Key Requirements of the Policy (cont.) • Describe the categories of covered employees (i.e., define safety-sensitive function) – cont. • Operating a non-revenue service vehicle that requires a CDL • Carrying a firearm for security purposes • Volunteers: Must drive a vehicle that requires a CDL, or be compensated in excess of actual costs incurred, in order to be considered safety-sensitive.

7. Key Requirements of the Policy (cont.) • Describe Prohibited Behaviors - Drugs • Employees are prohibited from using the five listed drugs at all times; an employee may be tested for these drugs any time while on duty • Marijuana • Cocaine • Amphetamines • Opiates • Phencyclidine

8. Key Requirements of the Policy (cont.) • Describe Prohibited Behaviors - Alcohol • No performance of safety-sensitive function while having an alcohol concentration of 0.04 or greater • No usage four hours before performing, while performing, or while on-call to perform a safety-sensitive duty • No usage for eight hours following an accident or until a post-accident alcohol test is performed

9. Key Requirements of the Policy (cont.) • Describe Circumstances of Testing • Pre-Employment • Random • Post-Accident • Reasonable Suspicion • Return-to-Duty / Follow-Up • State that random & reasonable suspicion alcohol testing is only permissible just before performing a safety-sensitive function, during that performance, or just after that performance

10. Key Requirements of the Policy (cont.) • Pre-Employment Testing • Verified negative test result required before first performance of safety-sensitive duty • If out of safety-sensitive duty for 90+ days and out of random pool, a DOT pre-emp test with verified negative result required before resuming SS duty • Applicant who previously failed or refused a DOT pre-employment test must show evidence of having completed SAP referral/evaluation/treatment process • Alcohol testing (if done) will be performed for all covered positions and follow Part 40 requirements

11. Key Requirements of the Policy (cont.) • Random Testing • Selections will be made using a scientifically valid method • Each employee will have an equal chance of selection each time selections are made (i.e., no discretion by supervisors) • Testing will be unannounced and immediate • Testing will be reasonably spread (i.e., conducted on all days and hours throughout the year)

12. Key Requirements of the Policy (cont.) • Post-Accident Testing - Thresholds • Fatality (testing mandatory) • Immediate medical treatment away from scene (testing required unless employee discounted) • Disabling damage to one or more vehicles (testing required unless employee discounted)

13. Key Requirements of the Policy (cont.) • Post-Accident Testing – Requirements • Driver, as well as any other covered employee(s) whose performance could have contributed to the accident, subject to testing • Employee must remain readily available • Testing is stayed while employee assists in resolution of the accident or receives medical attention

14. Key Requirements of the Policy (cont.) • Reasonable Suspicion Testing • Determination will be made by a trained supervisor • Contemporaneous observation of physical signs and symptoms of possible drug/alcohol use required

15. Key Requirements of the Policy (cont.) • Return-to-Duty and Follow-up Testing • Will be conducted in accordance with process set forth in Part 40, Subpart O • All tests will be conducted under direct observation

16. Key Requirements of the Policy (cont.) • Identify Actions that Constitute a Refusal to Test • Failure to appear in a timely fashion (except for pre-employment tests) • Failure to remain until the testing process is complete • Failure to attempt to provide a breath or urine specimen

17. Key Requirements of the Policy (cont.) • Identify Actions that Constitute a Refusal to Test – cont. • Failure to provide a sufficient quantity of urine or breath without a valid medical explanation • Failure to undergo a medical evaluation as required by the MRO or DER • Failure to cooperate with any part of the testing process • Failure to permit monitoring or observation for drug testing

18. Key Requirements of the Policy (cont.) • Identify Actions that Constitute a Refusal to Test – cont. • Failure to follow an observer's instructions to raise and lower clothing and turn around during a directly-observed test • Possessing or wearing a prosthetic or other device used to tamper with the testing process

19. Key Requirements of the Policy (cont.) • Identify Actions that Constitute a Refusal to Test – cont. • Failure to take a second test as directed by the collector or employer for drug testing • Admitting the adulteration or substitution of a specimen to the collector or MRO • Verification of a test by the MRO as adulterated or substituted

20. Key Requirements of the Policy (cont.) • Identify Actions that Constitute a Refusal to Test – cont. • Refusal to sign the certification at Step 2 of the ATF • Failure to remain readily available following an accident

21. Key Requirements of the Policy (cont.) • Describe Consequences of a Non-Negative Test Result • Positive or refused drug or alcohol test: employee will be removed immediately from his or her safety-sensitive function and referred to a qualified substance abuse professional

22. Key Requirements of the Policy (cont.) • Describe Consequences of a Non-Negative Test Result – cont. • Alcohol test between 0.02 and 0.039: employee will be removed immediately from his or her safety-sensitive function for at least 8 hours or until the beginning of their next scheduled shift, whichever is longer, or until a re-test shows a BAC of less than 0.02

23. Key Requirements of the Policy (cont.) • Required “Administrative” Elements of a Compliant Policy • List all covered job titles (i.e., safety-sensitive positions) • Identify the contact person who will answer questions about the drug and alcohol program (by name or title/position) • Differentiate FTA requirements from any additional employer-specific elements • May include Drug Free Workplace Act provisions, but they must be so identified

24. Key Requirements of the Policy (cont.) • Required “Administrative” Elements of a Compliant Policy – cont. • Include a statement that all drug and alcohol testing will be conducted in accordance with 49 CFR Part 40 procedures (i.e., protect the employee and the integrity of testing process) • Include a statement that each covered employee is required to submit to drug and alcohol tests administered in accordance with Part 655

25. Key Requirements of the Policy (cont.) • Required “Administrative” Elements of a Compliant Policy – cont. • Documentation of policy approval/adoption (i.e., effective date, signatures) • No provisions in the policy may be inconsistent with or have the effect of thwarting the FTA regulations • Documentation of distribution to safety-sensitive employees

26. How Long Should the Policy Be? • Long enough to be compliant (i.e., include all of the elements we’ve discussed thus far). • Good policies can be as short as 12-15 pages or as long as 50 – it’s all a matter of style. • Issues with longer policies: • Increases the chance that something will be worded incorrectly or confusingly. • Decreases the chance that employees will actually read it.

27. Methods of Developing a Policy • Start from scratch – the auditors’ policy review checklist can be found on the FTA website • (http://transit-safety.fta.dot.gov/DrugAndAlcohol/TechnicalAssistance/Checklist/PolicyReqsChecklist.aspx) • Checklist can be used to conduct your own policy review while you write

28. Methods of Developing a Policy (cont.) • Obtain a model policy from another similar transit provider, Best Practices Manual, or auditor: edit, customize, finalize, adopt • Finished product must actually describe local policies (e.g., second chance) • Must do a complete entity name search-and-replace throughout document • Pay someone to develop one for you

29. In Conclusion… • Your policy is the bedrock upon which your entire drug and alcohol program rests…so it is well worth your time to get it right • 49 CFR Part 655 dictates the specific elements that need to be included • Don’t just file it away once it is done: • Learn it completely • Review it frequently • Update it as needed

30. Policy Review Exercise • Spend 10 minutes reviewing the handout • Group Discussion to follow

31. Questions and Answers • I will be available to answer questions now, or you can track me down later.