Module 3 - DRUG and ALCOHOL TESTING

1. 1 Module 3 -DRUG and ALCOHOL TESTING

2. 2 THE DAPM’S WORLD

3. 3 The Five Types of Test Pre-Employment Before 1st performance of SS Function After 90+ day absence + Out of random pool (never a RTD!) Random Deters use among community; Must be unpredictable Post-Accident FTA testing after serious accidents Reasonable Suspicion Specific, articulable reason for testing Return-to-Duty/Follow-up Only after a positive/refusal, and after SAP referral

4. 4 PRE-EMPLOYMENT

5. 5 Pre-Employment Testing §655.41(a)(1): “Before allowing a covered employee or applicant to perform a safety-sensitive function for the first time, the employer must ensure that the employee takes a pre-employment drug test administered under this part with a verified negative result.”

6. 6 Pre-Employment Tests Job offer contingent on passing Negative result must be in hand prior to SS duty Must retest if test is canceled Pre-employment Alcohol Testing Employer may choose to do this (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!

7. 7 Background Checks 49 CFR Part 40 Section 25 requires Backgrounds Make requests under 40.25, not 382! Request info from SS employers from last 2 years DAPM must make these requests 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 Cannot use after 30 days unless can document diligent attempt to responses from previous employers

8. 8 Negative Result May not use the employee in safety-sensitive service until you are in receipt of a verified negative Non-safety-sensitive training, orientation, etc. is fine A canceled test must be made up Employer must maintain this negative result for at least one year Many choose to maintain this throughout emp’s period of service (impresses auditors!)

9. 9 Service Periods If: more than 90 days pass after the receipt of a verified negative pre-employment result, and the applicant/employee is not yet in the random testing pool, then Another pre-employment negative must be received prior to service (never a return-to-duty!) Keep track of the date an employee/applicant enters into safety-sensitive service (as opposed to a payroll “hire” date)

10. 10 RANDOM TESTING

11. 11 Random TestingDeter, Detect §655.45(f): “The employer shall randomly select a sufficient number of covered employees for testing during each calendar year to equal an annual rate not less than the minimum annual percentage rates for random drug and alcohol testing determined by the Administrator.”

12. 12 Update the Pool Before Each Selection Remember! Before each random selection... Employees out of the pool for 90 days must have a verified pre-employment test before they can be reinstated in the random pool and perform safety-sensitive duties Add all new safety-sensitive employees who have passed their pre-employment testing Remove employees who are no longer with the company No non-safety-sensitive employees in the pool of covered employees

13. 13 Random Testing Pools Keep the roster up to date Use payroll, log, or other consistent mechanism US DOT covered employees only! Get this info into your software or to your C/TPA (as applicable) on time

14. 14 Random Selections

15. 15 Random Testing Determine the draw period Cannot be less frequent than quarterly Determine the rate (FTA minimum is 25%/10%; FMCSA is 50%/10%; Mixed pools must be higher of the two) Assure that the selections are available at the beginning of the draw period - testing cycle

16. 16 Random Testing & TPAs A Third Party Administrator (C/TPA) may perform numerous functions: Random Selection MRO Services Collection Sites/Collection Site Oversight Records Maintenance & Retention A C/TPA may not: Transmit Laboratory Reports from the Lab to the MRO Transmit Alcohol Results of 0.02 + from BAT to Employer

17. 17 Random Testing Scheduling 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? Recording completed tests, reasons for incomplete Constraints on random alcohol testing You may only perform random ALCOHOL testing just before, during, or just after safety-sensitive duties

18. 18 IMMEDIACY Immediate and Unannounced Immediately proceed for collection Each employer must decide how much time a notified employee has to report for testing. An employee’s failure to arrive at the collection site in the allotted time constitutes a Refusal to Test **Refusals Are Treated as Positive Tests!**

19. 19 Unpredictable 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 You must plan schedules ahead

20. 20 Deterrent Spread of Testing §655.44 (g):“Each employer shall ensure that random drug and alcohol tests conducted under this part are unannounced and unpredictable, and that the dates for administering random tests are spread reasonably throughout the calendar year. Random testing must be conducted at all times of day when safety-sensitive functions are performed.”

21. 21 Year - Spread - Good

22. 22 Year-Spread - Not So Good

23. 23 Year - Spread - Bad

24. 24 The Deterrent Spread Spread testing throughout days & hours of Service FTA stressed this in a ‘98 interpretation:

25. 25 Week Spread - Good

26. 26 Week Spread - Not So Good

27. 27 Week Spread - Bad

28. 28 Hour Spread - Good

29. 29 Hour Spread - Not So Good

30. 30 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 you have only one employee who works on Sunday, and that employee is not selected for random testing, then it’s fine to not test on Sunday that period

31. 31 Receive & Review Results Random Testing Result Processing DAPM should receive the employer copy of the CCF/ATF within two (2) days of the test DAPM should receive a result from the MRO/TPA within a few business days Do Not assume that “no news is good news” Keep track of results due, chase them down if necessary Random selection lists are two (2) year records, five (5) year if any persons test non-negative

32. 32 Random Testing Self-Audit Three questions to ask yourself: Who was sent for testing? When were they selected? What safety-sensitive function do they perform? Were they selected & tested for drugs, alc, or both? When did they go for testing? During the period in which they were selected? Were they available and notified as expected? At an optimally deterrent time? Did they go for collection immediately? If not, was their unavailability documented?

33. 33 Random Testing Self-Audit Is the test complete? Did you receive your copy of the CCF/ATF? Did you receive a result in a timely fashion? Did you take action, if necessary? Did you record and file the complete testing event? During an audit, we would look for: A selection list A notification form A CCF/ATF A result

34. 34 POST-ACCIDENT TESTING

35. 35 Post-Accident Testingtraining, analysis, timeliness §655.44: “As soon as practicable following an accident… an employer shall conduct drug and alcohol tests on each covered employee operating the mass transit vehicle at the time of the accident.”

36. 36 Supervisors need training Training Who The program manager should be familiar with all aspects of the Federal Requirements Road Supervisors, as the primary on-scene decision makers Other supervisors/dispatchers/managers

37. 37 Testing Thresholds Post-Accident Testing Thresholds The event must be “associated with the operation of a vehicle” The event must have resulted in one or more of the following conditions:

38. 38 Testing Thresholds Cont. Thresholds: Fatality (within 32 hours) Injury requiring immediate medical attention away from the scene of the accident Disabling Damage to any vehicle if the RSV is a bus, sedan, etc The RSV is a rail vehicle and is removed from revenue service

39. 39 More on Thresholds More on Thresholds: Injured parties must receive medical attention away from the scene of the accident Assistance on-the-scene from EMS does not count Disabling damage can occur to the transit vehicle or to a privately-owned vehicle Disabling damage (§655.4) does not include: Damage that can be remedied temporarily at the scene Tire disablement without other damage Headlamp or tail light damage Damage to turn signals, horn, or windshield wipers (or mirrors!)

40. 40 Test All Contributory Employees 655.44 (a)(2) That the “employee's performance be completely discounted as a contributing factor to the accident.” (d) The decision not to administer a drug and/or alcohol test under this section shall be based on the employer's determination, using the best available information at the time of the determination that the employee's performance could not have contributed to the accident. This is a stronger criteria than “Not At Fault”

41. 41 Best Available Information If you document: “they’re ok now,” then… they’re ok now If you document: “he had nothing to do with it,” then… he had nothing to do with it FTA Will Back You Up One of the most common audit findings is: Over-testing after an accident

42. 42 Time Frames Key Time-frames in Post-Accident Testing Alcohol Testing: BEFORE DRUG TESTING! (2) hours after accident If not, you must document reason for delay If (8) hours pass, you must cease attempts to conduct test and update documentation Drug Testing: Within 32 hours of accident Medical Treatment/Accident Resolution comes first

43. 43 Company-Mandated Testing If the FTA threshold is not met: Or if you test after all accidents with no employee contribution - Test under own authority (should be in policy) OR -Do not test Examples: testing after receipt of traffic citation; testing after “fender bender”; testing after damage reaches a certain dollar amount

44. 44 FTA, COMPANY, No Test?

45. 45 Check the Collection Site Forms What is the time on the Alcohol Testing Form (ATF)? (Is the time off by an hour??) What is the time on the Drug Testing Custody & Control Form (CCF)? Did the alcohol test come first? Is this a regular practice?

46. 46 Use a Post-accident Testing Form? Does it contain: Time of Accident? Time of Test? FTA thresholds met / not met? Can safety-sensitive employee be completely discounted? Responding supervisors name? Notations for delays in testing? Have your supervisors been trained with it? Are they being completed fully?

47. 47 REASONABLE SUSPICION

48. 48 Reasonable Suspicion Testing §655.43(a): “An employer shall conduct a drug and/or alcohol test when the employer has reasonable suspicion to believe that the covered employee has used a prohibited drug and/or engaged in alcohol misuse.”

49. 49 Reasonable Suspicion Basics One or more company officials and/or supervisors trained to conduct: Specific, contemporaneous, and articulable observations concerning appearance, behavior, speech, or body odors of the employee Company official must be trained on the facts, circumstances, physical evidence, physical signs and symptoms, or patterns of performance and/or behavior associated with drug use and/or alcohol misuse

50. 50 Reasonable Suspicion Testing Required Steps: Documented reasonable suspicion interview by trained official Reasonable suspicion test, if needed

51. 51 Decision-maker Trained Supervisor or Company Official Only one (1) supervisor is required Can require that two or more are present, but the initiating supervisor must make “final call” Training must meet the requirements of §655.43 and §655.14(b)(2) 60 minutes on observable signs of drug use 60 minutes on observable signs of alcohol use Keep training records two (2 years It’s up to you to decide who is a “supervisor”

52. 52 Testing Triggers Reasonable Suspicion Testing must be based on “specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the covered employee (§655.43(b)).” Investigate anonymous tips Not on “gut feelings”, “declining performance”, “belligerent employee” An accident is not a symptom (it may trigger an interview)

53. 53 Common Observations appearance, behavior, speech, or body odors Common observations include: Bloodshot, glassy, or dilated eyes Slurred or unusually mumbled/stuttered speech Unusual or erratic gait Odor of alcohol, marijuana on person or clothes

54. 54 Time of notification Reasonable suspicion drug testing - observation any time the employee is on duty Reasonable suspicion alcohol testing only just before, during or just after: “An employer may direct a covered employee to undergo reasonable suspicion testing for alcohol only while the employee is performing safety-sensitive functions; just before the employee is to perform safety-sensitive functions; or just after the employee has ceased performing such functions. (§655.43(c)).”

55. 55 Time Frames for Testing Time-frame in Reasonable Suspicion Alcohol Testing: Should be conducted within two (2) hours of the observation If not, you must document reason for delay If more than eight (8) hours pass, you must cease attempts to conduct test and update documentation Drug Testing: 32-hour rule

56. 56 Reasonable Suspicion Records Documentation relating to reasonable negative suspicion determinations must be maintained for two (2) years (§655.71(c)). Five (5) years if positive. Use forms! Remember to maintain documentation relating to reasonable suspicion training as well

57. 57 Dispatchers are often the “First Line of Defense” for Reasonable Suspicion Testing

58. 58 Final Thoughts Back to service? Some systems return their employees to service right away, many wait until a test result comes back… Question: Is this also allowed with post-accident testing?

59. 59 RETURN-TO-DUTY and FOLLOW-UP

60. 60 Return-to-Duty Testing §655.46: “Where a covered employee refuses to submit to a test, has a verified positive drug test result, and/or has a confirmed alcohol test result of 0.04 or greater, the employer, before returning the employee to duty to perform a safety-sensitive function, shall follow the procedures outlined in 49 CFR Part 40 [Subpart O].”

61. 61 Referral Requirements Referral – after a DOT violation, you must refer the employee to a qualified SAP This includes a failed Pre-Employment Test You must provide a listing of SAPs with names, addresses, and telephone numbers. Part 40, Subpart O outlines the duties of the Substance Abuse Professional (SAP) and the return-to-duty and follow-up testing processes.

62. 62 Event Narrative and Chronology Records related to a positive or refusal should clearly detail circumstances, actions, and outcomes Initial testing event Immediate Action Policy and Consequences SAP Referral

63. 63 Event Narrative and Chronology Initial testing event Reason for the test Notification dates/times Related documents CCFs/ATFs Test Results MRO Correspondence Immediate Action Action Taken (e.g., Removal from Duty) Internal Correspondence

64. 64 Narrative and Chronology Policy and Consequences Terminated Second Chance A good time to check that you have a policy receipt !! SAP Referral Record of the referral You must make this referral even if you have a zero-tolerance policy!

65. 65 SAP Credentials The Substance Abuse Professional must meet the requirements of §40.281: (a) Credentials (Nationally Licensed Social Worker, Counselor, Psychologist, etc.) (b) Knowledge of Part 40, and experience in the diagnosis and treatment of related disorders (c) Qualification training (a test) pursuant to this Part from an accredited agency (d) Continuing education (12 CEUs per 3 years)

66. 66 SAP Duties Initial Evaluation and Recommendation: SAP interviews the employee and recommends a course of education and/or treatment, evaluates after completion, provides two written reports SAP must always recommend some kind of education and/or treatment Neither you nor the employee may seek a “2nd opinion” Employer must receive and maintain a copy of the SAPs two reports Five (5) year records. Return-to-duty test must be directly observed!

67. 67 Returning to Duty Follow-up Evaluation & Recommendation: SAP interviews employee after education-treatment has been completed, you must receive and maintain a copy of this report SAP decides to release for return-to-duty test Only you, the employer, may make “fitness for duty” determination The employee can not return to safety-sensitive duty until you are in receipt of RTD negative(s) Return-to-duty test must be directly observed!

68. 68 FOLLOW-UP TESTING §655.47: “An employer shall conduct follow-up testing of each employee who returns to duty, as specified in 49 CFR Part 40, subpart O.” §40.309(a): “As the employer, you must carry out the SAP's follow-up testing requirements. You may not allow the employee to continue to perform safety-sensitive functions unless follow-up testing is conducted as directed by the SAP.”

69. 69 Follow-up Testing Plan The Substance Abuse Professional determines the number and frequency of follow-up tests - in the second SAP report SAP must require at least 6 tests in the first year SAP may not prescribe “at least 6 tests,” the number must be fixed Tests will be drug, alcohol, or both Testing may continue for up to 60 months (5 years) of safety-sensitive service

70. 70 Follow-up Schedule While the SAP is the sole determiner of the number and frequency of follow-up tests, you, the DAPM, must actually schedule the tests Like random testing, Follow-up Tests must be unannounced and unpredictable You may not substitute other tests for these tests You may not go above and beyond the SAP’s plan Follow-up tests must be observed Continues to be subject to (unobserved) random testing The SAP’s follow-up testing plan “follows” the employee to any other DOT-regulated employer

71. 71 Follow-up Schedule The DER schedules Follow-up Tests Directly Observed Drug Tests + Alcohol Conducted per SAP’s plan Spread out, unpredictable, and immediate Employee remains in the random testing pool Other types of testing can not be a substitute for follow-up testing If a new hire has not completed their SAP’s plan, new employer must see it through

72. 72 Q&A and Lunch Questions on Drug and Alcohol Testing