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Omnibus Transportation Employee Testing Act (OTETA). A Basic Course in DOT Drug & Alcohol Testing Programs Dr. Donna Smith FirstLab, Inc. www.firstlab.com. History & Rationale.

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Omnibus Transportation Employee Testing Act (OTETA)

A Basic Course in DOT Drug & Alcohol Testing Programs

Dr. Donna Smith

FirstLab, Inc.

www.firstlab.com


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History & Rationale

  • 1991 Omnibus Transportation Employee Testing Act mandated drug and alcohol testing for all Commercial Driver’s Licensed (CDL) employees

  • Requirements for testing are detailed in FMCSA regulation 49 CFR Part 382 and the procedures for conducting the testing are found in 49 CFR Part 40

  • OTETA was aimed at preventing illicit drug use and alcohol misuse by employees in public transportation occupations to promote and protect public safety


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Program Basics

  • Each employer must:

    • Have a written substance abuse policy

    • Appoint a Designated Employer Representative (DER)

    • Conduct required drug and alcohol testing in accordance with Part 40 procedures

    • Conduct Reasonable Suspicion Training for supervisors

    • Provide drug and alcohol education materials or training for all CDL employees

    • Maintain records and documents as required by DOT regulations

    • Conduct a check for previous drug and alcohol violations with prior employers for all CDL applicants


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Substance Abuse Policy

  • Identify prohibited drug and alcohol-related conduct

  • Explain drug and alcohol testing requirements and testing procedures

  • Define safety-sensitive duty and positions

  • State consequences and disciplinary actions for violation of policy

  • Provide a copy of the policy to each employee and maintain documentation that employee has received and understands the policy


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Designated Employer Representative (DER)

  • Serves as point of contact for the testing program

  • Receives test results from the Medical Review Officer and Breath Alcohol Technician (BAT)

  • Ensures that drivers who violate the policy are removed from driving duties and meet return to duty requirements, if they return to work

  • Ensures that drivers are in a random testing pool


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DOT Testing Procedures

  • 49 CFR Part 40

  • Applies to Employers. Employees, Service Agents

  • Specimen Collection, Laboratory analysis, MRO, Alcohol Testing

  • SAP and Return to Duty Process

  • TPA functions

  • Confidentiality and Release of Information


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Reasonable Suspicion Training

  • Required for all supervisors of CDL employees

  • Minimum of 2 hours

    • Signs and symptoms of drug/alcohol misuse

    • Criteria for reasonable suspicion testing

    • Procedures for documenting R/S testing and getting employee tested

  • Training can be classroom, video, computer-based


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Employee Drug and Alcohol Awareness Information

  • Educational materials or training classes must be provided to all CDL employees

  • Information must include:

    • Prohibited conduct

    • Testing requirements and procedures

    • Consequences and disciplinary actions

    • Employee rights and responsibilities in testing program

    • Alcohol and drug abuse awareness information

    • Information on getting help with a substance abuse problem

  • Employee must sign acknowledgment of receipt of information/materials


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DOT Employee Booklet

Available at www.dot.gov/ost/dapc


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Record Keeping

  • Employers or their TPA must keep extensive records

    • Test results, including CCFs

    • Random testing documents

    • P/A and R/S testing documentation

    • Prior Employer checks

    • Supervisor and employee training records

    • SAP & RTD documents


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Check for Previous Drug & Alcohol Violations

  • Required at time of application or transfer to a CDL position

  • Applicant must sign release, identifying employers in past 2 years

  • Prospective employers must contact prior employers, provide signed release and request info on D & A violations

  • If previous employers report a DOT violation and applicant is hired, new employer must ensure SAP process is complete and FU testing is conducted


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FMCSA 49 CFR Part 382

  • Safety-sensitive positions: CDL drivers

  • Pre-employment, reasonable suspicion, post-accident, random, return to duty and Follow-up testing

    • For pre-employment only a drug test is required

  • 24 out-of-service for 0.02—0.039 BrAC


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Pre-employment Test

  • Negative result on a PE drug test required

    • Applies to employees transferring into a CDL position, as well as new-hires

    • PE test exception allowed if applicant has been in a DOT testing program with a prior employer for past 12 mos.

  • Applicants who are positive or refuse to test cannot be hired and must be provided SAP referral information

    • If reapplication is allowed, completion of SAP process must be documented


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Reasonable Suspicion Testing

  • Based on the observations of a supervisor who has completed R/S training

  • Supervisor’s observations must be documented on a form or written report

  • R/S tests must be completed ASAP after decision to test is made

    • If both alcohol and drug tests are indicated, the alcohol test should be conducted first

  • Employee should be escorted to testing site

  • Employee should not be permitted to return to work after testing; transportation home should be offered

    • RTW only after test results are received


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Post-Accident Testing

  • Post-Accident testing required if:

    • Fatality

    • Driver citied for violation and

      • Injuries requiring medical treatment away from scene, or

      • Disabling damage to vehicle requiring towing

  • Law enforcement P/A tests can be used in lieu of employer’s test

  • Post-accident tests must be conducted ASAP

    • Alcohol—within 2 hrs, if longer must document and complete by 8 hrs

    • Drug—ASAP—but within 32 hrs.


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Random Testing

  • Selection for random testing must use a scientifically valid random number selection process

  • Selections must be made at least 4 times per year and spread reasonable throughout the year

  • All CDL drivers must be in the random pool from which selections are made

  • Once notified of selection for random test, the driver must proceed immediately to complete the test

  • Number of random drug tests conducted must be at least 50% of CDL population; random alcohol tests must be at least 10%

  • If a selected driver is not available for testing during the selection period (month, quarter, etc.), the reason for not testing must be documented

    • If alternates were selected, they may be tested instead of unavailable drivers

  • If drivers are removed from the random pool for more than 30 days, they must have a pre-employment drug test when they return to driving duties

  • If a test result is cancelled, the test does not count toward the annual percentage.



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Return to Duty and Follow-up Testing

  • Occur only when there has been a DOT violation (positive, refusal to test, etc.)

  • RTD test conducted after SAP has provided follow-up evaluation report stating that employee has complied with treatment requirements

  • Follow-up testing determined by SAP

    • Begins when employee returns to safety-sensitive duties

    • Minimum of 6 FU tests in first 12 months after return to duty

    • FU testing may extend for up to 60 months as ordered by SAP

    • Number of tests and duration of testing determined by SAP

    • Employer sets schedule for “no notice” FU tests

    • Employee is also in CDL random pool


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Urine Specimen Collection

  • All DOT tests require:

    • Use of Federal custody and control form (CCF)

    • Split specimen collection

    • Shy bladder procedure for inability to provide specimen

  • Direct observation collections required in specific circumstances

    • Specimen temperature out-of range

    • Specimen suspected of adulteration

    • Previous test canceled because specimen invalid

    • Previous test canceled because split not available

    • Previous test “very” dilute—creatinine 2-5


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Urine Specimen Collection II

  • Collectors must complete training and proficiency demonstration

  • Supervisors of employees should not act as collectors

  • Most collections conducted at laboratory patient service centers (PSC) or medical clinics (3rd Party sites)

  • Specimens packaged in specimen bottles, sealed, and placed in plastic bag with CCF

  • Collector must distribute CCF copies to MRO, employer, and donor


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Laboratory Analysis

  • DOT testing must be conducted at a DHHS/SAMHSA certified laboratory

  • Screening test conducted using immunoassay

  • Confirmation required for all positive screens using GC/MS

  • Cut-off levels establish positive result (ng/mL)

  • Laboratories authorized to conduct specimen validity testing

  • Laboratories must review CCF for flaws prior to testing specimen


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Specimen Validity Testing

  • Creatinine & Specific Gravity

    • Dilute--creatinine <20; SG <1.0030

      • “Ultra-dilute”—2-5 creatinine

    • Substituted—creatinine <2; SG <1.0010 or >1.0200

  • Adulterated

    • Ph: Acid or base added (<3 or >11)

    • Nitrites >500 mcg

    • Specific substance added (soap. bleach, etc)

  • Invalid

    • Interfering substance but cannot identify it

    • Medication interference


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Drugs Detected

  • THC

    • Metabolite of marijuana and cannabis products

  • Cocaine

    • Benzaegoline is metabolite of cocaine, including crack

  • Amphetamines

    • Amphetamine and methamphetamine (MDMA—Ecstasy)

  • Opiates

    • Morphine, codeine, and heroin (6AM)

  • PCP

    • Phencyclidine (Angel Dust)


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Urine Testing Facts

  • Positive does not establish impairment or intoxication

  • All drugs except THC are only detected in urine 2-3 days after use

  • THC can be detected in urine up to 20 days after use for chronic, regular user

  • Over half of all positives are for THC

  • Cut-off levels rule out passive inhalation or “incidental exposure” causes

  • Laboratories must report results to MRO, not employer or TPA


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Medical Review Officer

  • MROs must be physicians who have special MRO certification

  • All results must be verified by MRO prior to release to employer or TPA

  • Must have CCF copy from collection site prior to reporting results

  • Non-negative results must have donor interview with MRO prior to verification

  • MRO cannot give employer (or TPA) any information prior to final verification of result


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MRO Results

  • Negative—No drugs present above cut-off level

  • Negative Dilute—No drugs present above cut-off level and low specific gravity & creatinine

  • Positive—Drugs present and no medical explanation

  • Refusal to Test—Adulterated (contains exogenous substance or excessive level of endogenous substances) or Substituted (SG & creatinine not consistent with human urine)

  • Canceled Test—Invalid specimen, flawed collection/specimen, Shy bladder with medical explanation


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MRO Safety Concern

  • Issued by MRO when laboratory positive drug test is due to use of a prescribed or medically administered drug and MRO believes:

    • Use of prescribed medication poses a significant safety risk, or

    • Medical condition for which medication is prescribed may pose a significant safety risk

  • Test result will be reported as “Negative” with MRO comment of a safety concern

  • Employee is informed by MRO that safety concern is being reported to employer


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MRO Notice to Donor

  • MRO notifies donor that he/she can submit (within 5 days) documentation from prescribing physician that demonstrates:

    • Medication has been discontinued, or

    • changed to one that does not cause concern

  • If MRO receives such documentation, employer will be notified that safety concern is removed


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Employer Actions on MRO Safety Concern

  • Options for resolving safety-concerns

    • Have prescribing physician provide statement that employee is able to perform safety-sensitive duties while taking medications

    • Have employee undergo “fitness for duty” evaluation by employer designated physician

  • Important for employer to have medication policy and procedures in place

  • MRO cannot make “fitness for duty” recommendation based on donor interview and urine drug test result


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Split Specimens

  • MRO must offer split specimen analysis to any donor with a positive, adulterated or substituted result

  • Employee cannot be required to pre-pay for split analysis

  • Employee has 72 hrs to decide if he/she wants split analyzed

  • MRO processes split request in writing to laboratory

  • Split musty be tested at a different SAMHSA certified laboratory

  • Split results reported to MRO

  • Employee must be removed from duty based on primary specimen result; cannot delay removal pending split outcome


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Split Specimen Outcomes

  • Result reconfirmed

    • Drugs present at limit of detection

    • Adulteration & substitution criteria met

  • Failed to Reconfirm

    • Drugs not detected

    • Adulteration or substitution criteria not met

    • Split specimen not available or not suitable for testing


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Alcohol Testing

  • Pre-employment alcohol testing not required

  • 0.04 or greater BrAC is a rule violation (positive test)

  • 0.02—0.039 BrAC requires temporary removal from safety-sensitive duty

  • Screening test uses breath or saliva specimen

  • Confirmation test required within 30 minutes of >0.02 screening result

    • Confirmation must be an evidential breath test (EBT)


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Alcohol Testing II

  • Tests must be conducted by trained technicians (STTs or BATs)

  • DOT Alcohol Test Form (ATF) must be used for all DOT tests

  • BAT notifies employer or TPA of result (no MRO review of alcohol test results)

  • EBT detects only ethanol

  • Waiting period (15—30 min) between screen and confirmation test eliminates “mouth alcohol”

  • Procedures for “shy lung” or inability to complete test


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Third Party Administrator (TPA)

  • Service agent for employers in implementing testing programs

  • Can maintain all records for employer

  • Can perform all tasks except DER, medical review and laboratory functions

  • TPA must conform to Part 40 and DOT agency rules


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SAP & Return To Duty

  • Employers must provide SAP information to all individuals who violate DOT rules, even if they terminate employment

  • Employees cannot return to duty unless they have:

    • Been evaluated by a SAP

    • Complied with recommended treatment/rehab

    • Undergone a follow-up evaluation by the SAP

    • Passed a return to duty test

    • Been prescribed a follow-up testing program (at least 6 tests in first 12 months)


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Significant Compliance Issues

  • Random testing

    • Must do random selections at least quarterly

    • Must document reasons for not testing selected employees

    • Must complete tests within testing period

    • Cancelled and “late” tests do not count toward percentage

    • Cannot “discontinue” random testing once the required percentage is achieved

    • Must update random pool to include all safety-sensitive employees


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Significant Compliance Issues

  • MIS reports

    • Must provide annual statistical data as required by DOT rule

    • Jan-Dec calendar year

  • Pre-employment tests on all s-s employees before they are hired or perform s-s duties

  • Prior Violations check ( 2yrs) on all new hires

  • Post-accident testing documentation on all qualifying accidents

    • Including missed and delayed alcohol and drug tests


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Commonly Asked Questions

  • What does a “pending” test result mean?

  • What do I do about a negative-dilute?

  • Can I change a non-DOT test to a DOT test?

  • I need a DOT MIS report?

  • What do I do about employees who are laid off or are on WC leave and are on my random list?

  • One of my employees got a DUI. Do I have to remove him from duty?

  • Do I need to do a drug test with my driver’s physical exam?


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Commonly Asked Questions

  • My random list is wrong. How do I get a new one?

  • What do I do about an employee who couldn’t provide a urine specimen at the collection site?

  • How do I get a laboratory statistical report?

  • My driver’s random test was reported as canceled. Do I send him in for another test?

  • It’s been five days and I don’t have a test result. Is it pending for the MRO review?


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Employer Guide to DOT Testing

Available at www.dot.gov/ost/dapc


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  • Stop By FirstLab’s Table and Meet FirstLab’s Florida Account Manager

  • Lisa Busse

    • 1364 Welsh Road

    • North Wales, PA 19454

    • 800-732-3784 Ext. 297

    • 706-835-1835

    • www.FirstLab.com

    • [email protected]


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