Best Practices in FTA Drug and Alcohol Testing Program

ImplementationPresented by Diana Byrnes, C-SAPA

About the Presenter

Diana Byrnes, C-SAPA Project manager for the FDOT Substance Abuse

Management Oversight and Technical Assistance Program with CUTR

Senior Associate Staff Instructor for the Transportation Safety Institute

Specializes in the training and education of FTA covered employers and employees, in the field of substance abuse management

Today’s session will:

Describe best practices in the following program areas: Identifying covered employers and covered employees Policy Training Pre-employment Testing Random Testing Post Accident Testing Record Maintenance Vendor and Contractor Compliance Monitoring

FDOT SAM Program description

What’s on the horizon in DOT testing

Applicability of Regulations

FTA Covered Employers

Each recipient (grantee) or sub recipient (indirect grantee) receiving Section 5311, 5307, 5309 funding

Contractors- when any of the above funding sources are used to compensate contractor s , they are “covered contractors” and the same regulations that are applicable to your agency are applicable to the contractor. As the funding recipient– your agency is responsible for the contractor’s compliance NOTE: Medicaid contractors that only receive Section

5310 funding are EXEMPT (see next slide)

FTA Covered Employees

Performs or could be called upon to perform these functions: Operate a revenue service vehicle (regardless of in

or out of service) Operate a non-revenue service vehicle when a CDL

is required to operate Perform maintenance on a revenue service vehicle Control the movement of a revenue service vehicle

(as determined by the employer) Carries a firearm as part of transit securitydetail

Regulations

49 CFR Part 655-

The FTA regulations that tells us “when and why” drug and alcohol tests are required to be conduct specific to FTA covered employers.

49 CFR Part 40-

The US DOT regulations that tell us “how” drug and alcohol testing must be conducted. These regulations cover all DOT modes.

Record Maintenance and Retention

Testing conducted in accordance with

49 CFR Part 40 and Part 655

Education and Training

Policy Development and Dissemination

Policy Statement Requirements

Policy Statement Requirements

• FTA Regulation- 49 CFR Part 655.15• Policy must be approved and adopted by

governing board and must include the following:• The agency contact, aka Designated Employer

Representative (DER)• The categories of employees that are subject

to testing (job titles and positions that are deemed safety-sensitive)

• Prohibited behaviors and conduct• Circumstances (reasons) for testing• Procedures that will be used for testing (can

reference Part 40)

Policy Statement Requirements Continued

• The requirement that a covered employee must submit to testing in accordance with Part 655

• The actions and behaviors that constitute a refusal to test

• Consequences of positive results and refusals to test

Employer may not impose requirements that are inconsistent with, contrary to, or frustrate the provisions of this part

All covered employees must receive a copy of the substance abuse policy and any subsequent revisions

Documentation of employee policy receipt must be obtained and kept on file for at least 2 years.

Florida Model Policies

• FDOT issued new substance abuse policy templates in October 2011• 5311 sub-recipient agencies (and/or contractors)

are required to adopt the FDOT• Available on the FDOT SAM Website• http://sam.cutr.usf.edu

Training and Education

Requirements

Training Requirements 49 CFR Part 655.14

Display and distribute informational material including hot line telephone numbers for assistance

60 minutes of drug awareness training provided to all covered employees (alcohol awareness training not required, but is a best practice)

Supervisor Training for Reasonable Suspicion Determinations (60 minutes on signs and symptoms of alcohol misuse AND 60 minutes on signs and symptoms probable drug use) Supervisors must receive this training prior to making a referral for

testing

Training Tools

To meet the Display and Distribution requirement: FDOT’s Drug and Alcohol Testing Program Manual

for FTA Covered Employees US DOT’s What Employees Need to Know About

DOT Drug and Alcohol Testing Posters, fliers, postcards,

Restrooms Driver’s lounge Timeclock area Memo in paycheck

Training Tools Continued

To meet the Employee Drug Awareness Training Requirement (60 minutes) FDOT’s Clean, Sober and Safe video (only 23 minutes,

must supplement!) FDOT’s Clean, Sober and Safe Web-based Training (time

varies based on user) Classroom style training incorporating the videos and

other material regarding the detriments of prohibited drug use on the mind, body and the workplace dangers.

DO NOT use policy review to fill the 60 minutes If you include a segment on alcohol misuse, DO NOT

count it toward the 60 minutes

Training Tools Continued

Supervisors must meet the training requirement prior to making a referral

Training is only required once during the tenure of employment but annual refresher training is highly recommended

To meet the FTA Supervisor Training Requirement: FTA video training package available on Safety and

Security Website: http://transit-safety.volpe.dot.gov/ FDOT agencies: REACT video training package (new)

Mailed to all Florida transit systems in March

Additional Training Best Practices

FTA Post Accident Testing Determination Training

Prescription and Over the Counter Medication Awareness

Substance abuse training topics to safety meetings

DER training to keep abreast of regulatory changes

Test Types and Potential Areas of

Non-Compliance for Each

Test Types

1 Pre-employment

2 Random

3 Post Accident

4 Reasonable Suspicion

5 Return to Duty

6 Follow Up

Note: Most frequent areas of non-compliance are underlined in yellow

Pre-employment Testing

• All new safety-sensitive employees and transferees must have a negative pre-employment drug test on file PRIOR to the performance of any safety-sensitive duty.

• Employee can not take part in any behind the wheel training until negative result is obtained

• Pre-employment alcohol testing is authorized but not required• A pre-employment test must be administered to an employee

returning from an extended leave of 90 days or more, IF they have been removed from the random testing pool. ( this is NOT a return to duty test)

Drug and Alcohol Background Checks

49 CFR Part 40.25

Must obtain employee consent to inquire with all DOT employers within the previous 2 years (no consent, cannot hire) Any positive drug or alcohol tests conducted under DOT

authority? Any refusals to submit to DOT testing?

Must make a good faith effort to receive information

If response is “yes”, must ensure that RTD process has been completed

Random Testing

• Random testing must be spread throughout all hours of operation and all days of the week that safety-sensitive duties are performed

• Failure to conduct testing in this manner will be deemed a “finding” if audited- no excuses

• Alcohol test only just before, during or just after the performance of s/s duties

• Current annual minimum testing rates:• 25% of the average # of employees must be tested for

prohibited drug use annually• 10% of the average # of employees must be tested for

alcohol misuse annually

Random Testing Continued:

Random testing must be conducted in manner that does not develop a predictable pattern of testing that could be identified by employees No group testing Spread testing throughout the entire testing period Test on weekends and holidays if your agency

performs safety-sensitive duties on weekends and holidays

Post Accident Testing

• Must follow FTA criteria to test- refer to form

• If FTA accident “definition” is not met, DO NOT perform a DOT post accident test• Fatality- Test without question• Transport away from scene for medical treatment- test

unless driver’s actions can be completely discounted• Vehicle REQUIRES towing due to disabling damage-

test unless driver’s actions can be completely discounted

Post Accident Testing Continued

Cannot test an employee who is unconscious

Must conduct test as soon as practical following an event that meets the testing criteria but no more than: 8 hours after the event for alcohol 32 hours after the event for drugs

Document any delays in testing after the first two hours following the event* see form

Reasonable Suspicion Testing

• Supervisors must have received required training before making a referral for testing

• Supervisors must use specific and contemporaneous indicators as a determining factor (no rumor or second hand information)

• Only ONE supervisor is required to make a referral. Employer can not require more than one supervisor to concur with decision.

• Must document the observations and the referral process- See Form

Return to Duty and Follow Up Testing

• Return to Duty and Follow Up tests ONLY apply to employees who have previously violated the DOT drug and alcohol policy• Return to Duty is the test type conducted on an

employee after they have completed the SAP evaluation and treatment program

• Employee’s who return to duty after a violation are subject to Follow Up tests. SAP determines number and frequency of tests

• BOTH test types must be Directly Observed Collections

Collection Site Compliance

Monitoring Your Collection Site

The collection site’s compliance to regulations is directly tied to your agency’s compliance to the regulations

Monitoring your collection site is highly recommended Start by developing a rapport with the site manager Bring a current copy of Part 40 and US DOT Specimen

Collection Guidelines to the site Suggest scenarios and ask questions about how problem

collections are handled Conduct an inspection of the site Ask the collector to walk you through their procedures

Monitoring Your Collection Site Continued

Conduct clandestine inspections

Solicit information from employees after they return from the site

When areas of concern are noted, bring it to the attention of your TPA (if applicable) and the site manager.

Point out that collections for ALL DOT modes are to be conducted uniformly– so deeming them non-compliant for an FTA covered employer applies to the FMCSA regulated employers as well (often more clients are FMCSA)

Alcohol Misuse

Although alcohol is a legal substance for those of legal age, the misuse of alcohol among safety-sensitive employees can be an extreme safety risk.

All covered employees are prohibited from consuming alcohol within 4 hours of the performance of safety-sensitive functions and while on call to perform safety-sensitive duties

DOT Alcohol testing can only occur just before, during or just after the performance of safety-sensitive duties

Alcohol Testing

Technicians must meet qualification training in accordance with Part 40.213

Saliva tests are authorized for initial screening only– not confirmation tests

Evidential Breath Testing Devices must be used for confirmation testing Must be on National Highway Traffic Safety

Administration’s Conforming Products List

Record Maintenance and Retention

Retention Requirements

Five Year All records related to positive results

SAP Referrals Return to Duty Process, Follow Up testing

documentation Documentation of employee refusals to test DAMIS Reports

Three Years Previous employer background checks Good faith efforts

Retention Requirements Continued

Two Years Testing documentation

Collection log books, if used Random selection process Reasonable suspicion documentation Post accident testing documentation MRO documents verifying existence of a medical

explanation for insufficient volume Records of inspection, maintenance, and calibration of

EBT

Retention Requirements

One Year Cancelled drug test results Negative test results

Alcohol test results less than 0.02 Alcohol test form with results Employer’s copy of the federal CCF.

BEST PRACTICE: KEEP ALL RECORDS FOR 5 YEARS.

Record Maintenance

Ensure that all records are kept in a locked file cabinet with access limited to only the DER and Alternate

Keep drug and alcohol testing records stored separately from other types of employment records

If records are kept electronically, ensure that they are password protected

FDOT SAM Program

Expansion for 2012-2013

FDOT SAM Program

Program was initiated August 1, 2003 as a compliance oversight tool for FDOT’s Section 5311 sub-recipient agencies

In February 2004 FDOT underwent its first FTA Drug and Alcohol Program audit SAM Program was immediately expanded in February

2004 to assist agencies in preparing and responding to the audit

Further expansion to the technical assistance and training aspects of the program were made in 2005, but the primary focus was still on the rural agencies

FDOT SAM Program Cont.

FTA audit of FDOT August 2011 emphasized the importance of the SAM program

May 1, 2012 FDOT expanded the SAM program to to all Florida transit systems, regardless of size. Compliance reviews of rural systems are still conducted,

however the training and technical assistance benefits are available to all agencies, statewide

Regional outreach training sessions and webinars are being coordinated (see next two slides)

Regional Outreach Training Sessions

Region A- Districts 1 and 7 was held on July 18th, 2012

Region B- Western portion of District 2 and District 3: November 13, 2012

Region C- Districts 4 and 6: March 27, 2013

Region D- Eastern portion of District 2 and District 5: August 23, 2012 Full day interactive workshop style sessions (not just

lectures!) All sessions are open to all agencies (you must register for

the session though.) Training session information is posted on SAM website,

registration is coordinated through Molly Buffington at CUTR.

Webinars

Monitoring Collection Site Compliance: September 12th, 2012

Record Maintenance Best Practices and DAMIS Reporting Instructions: January 10th, 2013

Developing Compliant and Effective In-house Training Programs: April 24th, 2013

Additional topics will be added, please feel free to contribute topic suggestions!

In-House Training Opportunities

Supervisory Training for Reasonable Suspicion and Post Accident Drug and Alcohol Testing Thresholds

Employee Drug Awareness refresher training

Prescription and Over-the-Counter Medication Awareness training

One-on-One Drug and Alcohol Program Management training for new DERs or back-ups

Contact me directly to set up in-house training: byrnes@cutr.usf.edu

FDOT Substance Abuse Website

• FDOT Substance Abuse Management Resource Website: http://.sam.cutr.usf.edu

• Training Tools• Training Announcements• Videos• FTA Regulatory Updates Newsletter• “Quick Regs”- regulatory references• Links to additional web resources

On the HorizonForthcoming Changes to Regulations

On the Horizon

On January 26, 2012, the Department of Health and Human Services accepted the Drug Testing Advisor Board’s recommendations: to expand the drug testing panel for Federal Workers to

include Schedule II drugs (oxycodone, hydrocodone, etc.) to recognize oral fluid as an alternative specimen for

Federal workplace drug testing programs. 

The USDOT is required by law to follow HHS procedures, so as soon as the guidelines are established, Part 40 will be amended in accordance with the new guidelines. 

On the Horizon Cont.

We can anticipate a revision to Part 655 in the near future (within the next couple of years), according to Jerry Powers

Electronic CCFs

National database for violators is being developed (will start first with FMCSA)

Statewide Testing Services Contract

New TPA Contract Awarded

Benefits of using statewide contract with FirstLab: Scope of Service includes provisions for collection

site monitoring and minimum collection site availability

FDOT support (assurance that contract obligations will be met)

No state interference with your individual testing account

BEST PART: Significant cost reduction for volume pricing

DOT urine drug tests – 25.00!

Contact

Please do not hesitate to contact me for information about drug and alcohol testing regulations or to schedule training

Diana Byrnes 813-426-6980 byrnes@cutr.usf.edu

Thank you for your attendance today.

Contacts

Diana Byrnes, C-SAPASubstance Abuse Management Specialist

CUTR

813-426-6980

http:// sam.cutr.usf.edu