Drug and Alcohol Testing in Accordance with DOT and FTA Regulations

1. Drug and Alcohol Testing in Accordance with DOT and FTA Regulations Presented by: Esther Avalos, Director of Compliance, MV Transportation, Inc.

2. Regulation Updates • DOT’s “Medical Marijuana” Guidance – October 2009 • Bottom Line: Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana. • Public Interest Exclusion – Published November 17, 2009

3. Regulation Updates • The DOT revised 49 CFR Part 40 in a Federal Register published • June 25, 2008.   • The DOT changed the observed collection procedures because there was ample evidence suggesting that more and more devices are available in • the market place designed to tamper with specimens • The same gender observer enters the restroom or facility where urination occurs with the employee. The observer must request the employee to • raise his or her shirt, blouse, or dress/skirt, as appropriate, above the • waist, just above the navel; and lower clothing and underpants to • mid-thigh; and to show the observer – by turning around – that the employee • does not have a prosthetic device. After the observer has determined that the employee does not have such a device, the observer may permit the employee to return clothing to its proper position and then conduct the observed collection. • The observer must watch the employee urinate into the collection container. Specifically, the observer must personally and directly watch the urine go from • the employee’s body into the collection container (use of mirrors or video cameras is not permitted).

4. Regulation Updates • MDMA Testing – We added this under the category of Amphetamine testing • See 49 CFR sections 40.87 and 40.97 • Lowering Laboratory Cutoff Criteria for Cocaine and Amphetamines • See 49 CFR sections 40.87 and 40.97 • Laboratory Testing for 6-Acetylmorphine (6-AM) • See 49 CFR sections 40.87, 40.97, 40.139, 40.140 • Remember, there is “no legitimate medical explanation for the presence of PCP, 6-AM, MDMA, MDA, or MDEA in a specimen” – 49 CFR section 40.151 • If you would like to view the full scope of these changes you can go to: • http://www.dot.gov/ost/dapc/frpubs.html 4

5. Regulation Updates Still considered a 5-Panel under DOT Regulations

6. ECSTASY, MDMA • Ecstasy, MDMA is a synthetic, psychoactive drug that is chemically similar to the stimulant methamphetamine and the hallucinogen mescaline. MDMA causes an increase in serotonin which plays an important role in the regulation of mood, sleep, pain, appetite, and other behaviors. • Ecstasy users make extremely dangerous drivers. They can exhibit the same impairments as amphetamine, heroin, cocaine, and hallucinogen users. Some ways driving ability is affected by ecstasy use include: • Slowed thinking and reflexes- making reacting difficult • Distorted visual and depth perception • Difficulty making complex decisions • Lengthened glare recovery time • Overly confident in driving skills and judgment • Lapses in attention and concentration – • driver is unable to display continuous attention • Distorted vision • Auditory and visual hallucinations

7. The Drug Testing Process

8. The Things You Need to Do

9. The Pre-Employment Test • Contingent upon offer • Negative result must be in hand prior to SS duty • Pre-employment Alcohol Testing • You may choose to do this • (it’s an IQ test!) • If you do, you must do it with Federal forms, and for all SS applicants/employees. • If SS emp is away 90+ days, and out of random testing pool, perform a pre-employment test!

10. Pre-employment Testing

11. Background Checks • 49 CFR Part 40 Section 25 requires Backgrounds • Make your requests under 40.25, not 382! • SS employers from last 2 years • Within 30 days of hire • You must ask the employee: • “have you, in the last two years, failed or refused a DOT pre-employment test?” • You must ask this because, had he failed/refused, you would have no employer of whom to make the above request! • You must return requests made of you

12. Your Policy- have you updated it since Oct 1, 2010? • Check compliance annually • 49 CFR Part 40 changed in October of 2010– have you updated your policy? • Do you have a model policy? • Make sure it’s localized! • Make sure your Board/GM knows! • Disseminate & Explicate • Your job is to help employees get it! • Get a receipt from each employee (it’s proof!)

13. Policy – Refusal Conditions • Failure To: • Appear at all, or in a timely manner* • Remain until the testing process is complete** • Provide a sample** • Provide a full sample w/o medical reason • Undergo a medical evaluation • Cooperate w/ any part of the process • Permit monitoring/observation • Take a second test, as ordered • Sign step 2 of the Alcohol Testing Form • The submission of a verified adulterated/ substituted test *Not a refusal for pre-employment testing **Not a refusal for pre-employment testing, provided testing has not yet begun (Cup handed to donor)

14. Policy – Refusal Conditions Cont. • On August 25, 2008, the following refusals were added (§40.191(a)(9-10)): • The possession or wearing of a prosthetic or other device that could be used to interfere with the collection process • Failure to follow an observer’s instructions to raise/lower clothing and underpants, and to turn around to permit the observer to ascertain the presence/absence of interfering paraphernalia • Admission to the collector/MRO of adulteration or substitution

15. Local Policy Decisions • Decisions you must make locally: • “2nd Chance” Policy • Negative-Dilute Policy • A second negative-dilute is always negative • You must treat all employees the same • You may have different policies for different test types

16. Training • 60 min of Training for each Safety-sensitive Employee – Effects of Drug Use • 120 min of Training for each Supervisor authorized to make Reasonable Suspicion Determinations: • 60 min on Drug Use • 60 min on Alcohol Use • Training Video is available free from FTA • There is no official certification for this: self-certify! Make sure your training now includes information on Ecstasy (MDMA)

17. Random Testing • Determine your draw period • Cannot be less frequent than quarterly • Determine your rate (FTA Minimum is 25%/10%) • A percentage of the number of safety-sensitive staff you employ throughout the year, on average • You can test at a higher rate • Your policy should indicate your rate

18. Random TestingDeter, Detect, Deter

19. Year-Spread – Not so Good

20. The Random Draw (or “pull”) • This year, you must test 25%/10% of the • average number of safety-sensitive employees • An example: • Q1: 336 SS emps • Q2: 342 SS emps • Q3: 361 SS emps • Q4: 341 SS emps • Average  (1380/4)=345 (this is the # of emps for MIS); • Test for Drug: 25% = 86.25 (87+ tests  22/q) • Test for Alcohol: 10% = 34.5 (35+ tests  9/q)

21. Keep your roster up to date • Use payroll, log, or other consistent mechanism • US DOT covered employees only! • Get this info to your C/TPA (as applicable) on time • Ensure that your C/TPA gets it back to you! • Selection Lists must be securely • maintained (2yrs+) • Locked cabinet, minimal distribution • Secure fax line, email, etc. • Notification of Random Testing • Chain of Notification (Supervisors? Dispatchers?) • Who ensures spreading of random tests? • Constraints on random alcohol testing You may only perform random alcohol testing just before, during, or just after safety-sensitive duties.

22. Random Testing Continued - Spread • Random Testing must be spread: • Throughout the Year • Throughout the Week • Throughout All Hours of Safety-Sensitive Duty • Spread may be proportional; it is not an even spread • The goal of spreading tests is to increase deterrence through unpredictability

23. The Deterrent Spread • Remember: • The spread is proportional to service • Alcohol Testing may only be performed • Just before safety-sensitive duty • During safety-sensitive duty • Just after safety-sensitive duty • Drug testing may be performed at any time • If only one employee works on Sundays, and that employee is not selected for testing, then it’s fine to not test on Sunday during that period Track your spreads!

24. Post accident testing, do you know how to make the call? Accident: Associated with the operation of a revenue service vehicle, whether or not the vehicle is in revenue service (includes in the yard) • Fatality • Disabling Damage to any Vehicle • Injuries requiring immediate medical treatment away from scene

25. Post accident testing, do you know how to make the call? • The police clear the scene of the accident and the driver of the other vehicle has been sent to the hospital in the ambulance from the scene, your driver was rear ended and the police are citing the other driver. • -Do you test your driver?

26. Post accident testing, do you know how to make the call? Nonfatal Accidents – As soon as practicable following an accident NOT involving the loss of human life in which a vehicle is involved, you must drug and alcohol test the operator at the time of the accident … UNLESS you can determine using the best information available at the time of the decision, that the operator’s performance can be completely discounted as a contributing factor to the accident.

27. Post accident testing, do you know how to make the call? Factors that do not trigger P.A. tests • Dollar amount of damage • Driver citation • Insurance or Company requirement • “Just to be safe” • Reasonable Suspicion implications

28. Contacts for FTA • Jerry Powers, FTA D&A Program Manager • (617) 494-2395 • Gerald.Powers@dot.gov • Mike Redington, RITA/Volpe Center • (617) 494-2197 • Michael.Redington@dot.gov • Eve Rutyna, RITA/Volpe Center • (617) 494-3447 • Eve.Rutyna@dot.gov • FTA Drug and Alcohol Hotline • (617) 494-6336 • Fta.damis@dot.gov • For questions regarding an audit, contact the audit team leader

29. Resources • FTA Safety & Security: • http://transit-safety.fta.dot.gov • FTA D&A MIS Reporting: • http://transit-safety.fta.dot.gov/Safety/DAMIS.asp • DOT Office of Drug & Alcohol Policy & Compliance: • http://www.dot.gov/ost/dapc • FTA Drug & Alcohol Forum: • http://transit-safety.fta.dot.gov/Safety/BBS/default.asp

30. Questions & Answers