21. DRUG AND ALCOHOL PROGRAM

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					21. DRUG AND ALCOHOL PROGRAM

      BASIC REQUIREMENT
      Grantees receiving Urbanized Area Formula             2.   49 CFR Part 40, “Procedures for
      Program (Section 5307), Nonurbanized Area                  Transportation Workplace Drug Testing
      Formula Program (Section 5311), or Capital                 Programs.”
      Investment Program (Section 5309) funds
      must have a drug and alcohol testing
      program in place for all safety-sensitive
                                                            USEFUL WEB LINKS
      employees.
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                                                            Drug and Alcohol MIS Reporting
      AREAS TO BE EXAMINED
      1.   Drug and Alcohol Testing of Safety-              Drug and Alcohol Training
           sensitive Employees
                                                            Technical Assistance
      2.   Policy Statement on Prohibited Drug
           Use and Alcohol Misuse in the
                                                            Drug and Alcohol Publications
           Workplace
                                                            Implementation Guidelines for Drug and
      3.   Types of Tests and Substances
                                                            Alcohol Regulations in Mass Transit
      4.   Rate of Random Testing
                                                            Drug and Alcohol Program Compliance Audit
                                                            Questionnaires
      5.   Post-accident Determinations

      6.   New Hire Data
                                                            APPLICABILITY
                                                            FTA program funds can be segregated from
      7.   Records Control
                                                            other funds. Therefore, FTA drug and alcohol
                                                            testing requirements may not apply to
      8.   MIS Reporting                                    grantees that receive FTA funds exclusively
                                                            for facilities if these funds can be segregated
      9.   Monitoring Program Vendors (e.g.,                from other program funds. If a question
           Collection Sites, MROs, and SAP)                 arises whether FTA funds can be
                                                            segregated, please contact your project
                                                            manager, who can contact the FTA Drug and
      REFERENCES                                            Alcohol Program Manager, Jerry Powers at
      1.   49 CFR Part 655, “Prevention of Alcohol          gerald.powers@dot.gov.
           Misuse and Prohibited Drug Use in
           Transit Operations.”




Drug and Alcohol Program                             21-1                                       FY2010
QUESTIONS FOR THE REVIEW
                                                                     •   operating a revenue vehicle including when not
1.     Has FTA conducted a drug and                                      in revenue service
       alcohol program compliance audit in                           •   operating a non-revenue vehicle when required
       the past two Federal fiscal years? If                             to be operated by a holder of a CDL
       yes, when was the site visit? Is an                           •   controlling dispatch or movement of a revenue
                                                                         service vehicle
       audit scheduled for the current Federal
                                                                     •   maintaining,     repairing,   overhauling,   and
       fiscal year?
                                                                         rebuilding a revenue service vehicle or
                                                                         equipment used in revenue service with the
EXPLANATION                                                              exception of:
As part of its project oversight functions, FTA                               - all maintenance contractors of grantees
periodically conducts Drug and Alcohol Audits of
                                                                                in UZAs under 200,000; and
selected grantees.
                                                                              - subcontractors        of     maintenance
Even if such an audit is scheduled for the current fiscal                       contractors
year or has been recently conducted, all questions in                    Note that contractors that provide maintenance
this section are still asked. If an audit has been                       services to an operations contractor are subject
recently conducted, a copy of the most recent report                     to FTA's drug and alcohol testing regulations.
may be requested for input into the review.                          •   carrying a firearm for security purposes

REFERENCE                                                          Grantees that operate a commuter railroad regulated
None                                                               by the Federal Railroad Administration (FRA) must
                                                                   follow FRA regulations for its railroad operations and
                                                                   follow FTA regulations for its non-railroad operations.
SOURCES OF INFORMATION
                                                                   Grantees that operate a ferry system are considered
None
                                                                   to be in compliance with FTA regulations when they
                                                                   comply with the U.S. Coast Guard's (USCG's)
DETERMINATION                                                      chemical and alcohol testing requirements. However,
None                                                               those ferry operations are subject to FTA's random
                                                                   alcohol testing requirement for employees considered
SUGGESTED CORRECTIVE ACTION                                        safety-sensitive by the USCG (crew members with a
None                                                               merchant mariners document or under a certificate of
                                                                   inspection), since the USCG does not have a similar
                                                                   requirement.
2.     Does the grantee have a drug and
                                                                   Grantees that have employees, subrecipients,
       alcohol testing program for safety-                         contractors, subcontractors or lessees that are subject
       sensitive employees as defined by                           to drug and alcohol testing as part of a Federal Motor
       FTA? Do subrecipients, contractors,                         Carrier Safety Administration (FMCSA) program must
       subcontractors and lessees with                             ensure that any individual who also provides services
                                                                   to the transit system is subject to FTA regulations
       safety-sensitive employees have drug                        while    performing    FTA-defined      safety-sensitive
       and alcohol testing programs?                               functions. For example, a municipal transit system
                                                                   may have maintenance performed by a mechanic
EXPLANATION                                                        employed by the city government who repairs transit
Grantees and their subrecipient, contractors,                      vehicles as well as other city-operated equipment. At
subcontractors and lessees that have safety-sensitive              times when this employee works on transit vehicles,
employees are required to have a drug and alcohol                  he or she would be subject to FTA regulations.
testing program for these employees. For grantees
that use volunteer drivers, the volunteers are not                 Contractors performing safety-sensitive work, such as
subject to testing unless the volunteer is required to             tire maintenance, overhaul or rebuild of vehicles,
hold a commercial driver’s license (CDL) or receives               engines and parts or body work are subject to FTA
remuneration in excess of expenses incurred while                  regulations, unless the work is done on an ad-hoc
engaged in a safety-sensitive function. Safety-                    (non- routine) basis. Warranty work performed by
sensitive employees are employees that perform the                 employees of the bus manufacturer is not subject to
following functions:                                               the regulations. Also, vendors from whom grantees
                                                                   purchase or exchange rebuilt engines or other



Drug and Alcohol Program                                    21-2                                                FY2010
components are not subject to the regulations unless                      lessees have a drug and alcohol policy
that work is regular and on-going.                                        as required by FTA drug and alcohol
                                                                          regulations? Do the policies contain
If a grantee utilizes taxicab companies to provide
transit services (e.g., paratransit), the applicability of                the required elements?
drug and alcohol testing depends on the nature of the
service. If a grantee has a contract with one or more               EXPLANATION
taxicab companies and schedules and dispatches the                  The grantee and its subrecipients, contractors,
trips, then the drug and alcohol testing regulations                subcontractors and lessees covered by 49 CFR Part
apply. However, FTA regulations do not apply if a                   655 must have a drug and alcohol policy detailing the
transit patron (or broker) chooses the taxicab                      provisions of their drug and alcohol program. The
company, even if there is only one company available.               policy should cover all the provisions noted below and
The regulations do not apply to taxicab maintenance                 should reflect all updates and regulation amendments.
contractors, provided the primary purpose of the
taxicab company is not public transit service.                      The following checklist identifies the minimum
                                                                    requirements of a policy as defined by 49 CFR 655.15:
Off-duty police officers under contract to the grantee                •    Proof of policy adoption by the appropriate
or a contractor to a grantee are subject to FTA drug                       governing body with effective date indicated
and alcohol testing. Police officers who as part of their
                                                                      •    Identity of the person designated by the
normal duties patrol public transit facilities are not
                                                                           employer to answer questions about the anti-
subject to FTA testing. When a grantee contracts the
                                                                           drug and alcohol misuse program
local police department but does not supervise the
officers and the officers also respond to nontransit-                 •    Categories of employees who are subject to
related police calls, the officers are not subject to                      testing
FTA’s drug and alcohol rules.                                         •    Prohibited behavior, including when the
                                                                           regulations prohibit the use of alcohol and
REFERENCE                                                                  drugs
49 CFR 655.3 and 655.4                                                •    Testing circumstances for drugs and alcohol
Body work interpretation letter                                            (i.e., pre-employment, random, post-accident,
Police officer interpretation letter                                       reasonable suspicion, return-to-duty, and
                                                                           follow-up testing)
SOURCES OF INFORMATION                                                •    Drug and alcohol testing procedures consistent
The grantee will be asked to provide evidence that all                     with 49 CFR Part 40, as amended
safety-sensitive employees (including subrecipients,                  •    The requirement that covered employees
contractors, subcontractors and lessee employees)                          submit to drug and alcohol testing administered
are covered by a drug and alcohol testing program. A                       in accordance with FTA regulations
list of all contractors and subcontractors should be
                                                                      •    Description of the behavior and circumstances
provided in order to determine if the requirement
                                                                           that constitute a refusal to take a drug and/or
applies.
                                                                           alcohol test and a statement that a refusal
                                                                           constitutes a verified positive test result. The
DETERMINATION                                                              following describes refusals under the DOT
If the grantee or any of its subrecipients, contractors,                   program:
subcontractors or lessees has not adopted an FTA
program, as applicable, the grantee is deficient.                         1.   Fail to appear for any test (except a pre-
                                                                               employment test) within a reasonable time,
                                                                               as determined by the employer, consistent
SUGGESTED CORRECTIVE ACTION
                                                                               with applicable DOT agency regulations,
The grantee will be directed to develop and implement
                                                                               after being directed to do so by the
a drug and alcohol testing program for all covered
                                                                               employer
employees and submit evidence of such to FTA. The
grantee can include the contractor’s employees in its                     2.   Fail to remain at the testing site until the
program or require the contractor to have its own                              testing process is complete (an employee
program based on FTA requirements. If a contractor is                          who leaves the testing site before the
lacking a drug and alcohol testing program, the                                testing process commences for a pre-
grantee will be directed to ensure that the contractor                         employment test is not deemed to have
implements a program and to provide evidence of                                refused to test)
such to FTA.
                                                                          3.   Fail to provide a urine specimen for any
                                                                               drug test required by this part or DOT
                                                                               agency regulations
3.     Do the grantee and its subrecipients,
                                                                          4.   In the case of a directly observed or
       contractors,  subcontractors     and                                    monitored collection in a drug test, fail to



Drug and Alcohol Program                                     21-3                                                FY2010
          permit the observation or monitoring of                        concentration of 0.02 or greater but less than
          your provision of a specimen                                   0.04
     5.   Fail to provide a sufficient amount of urine
          when directed, and it has been determined,              In addition to the requirements listed above, the policy
          through a required medical evaluation, that             should include the grantee’s policy toward retesting of
          there    was     no     adequate    medical             negative dilute urine collections as required by
          explanation for the failure                             49 CFR 40.197 which states that if the MRO informs
                                                                  the agency that a negative drug test was dilute, the
     6.   Fail or decline to take an additional drug              agency may (but is not required to) direct the
          test the employer or collector has directed             employee to take another test immediately. All
          you to take                                             employees must be treated the same for this purpose.
                                                                  For example, the grantee must not retest some
     7.   Fail to undergo a medical examination or                employees and not others. The policy should state
          evaluation, as directed by the MRO as part              whether or not immediate retesting for negative dilutes
          of the verification process, or employer. In            is required and, if required, that the second test will be
          the case of a pre-employment drug test,                 the test of record.
          the employee is deemed to have refused to
          test on this basis only if the pre-
          employment test is conducted following a                Some grantees may have modeled their testing
          contingent offer of employment. If there                programs after FMCSA regulations (49 CFR Part 382).
          was no contingent offer of employment, the              FMCSA regulations do not meet FTA requirements.
          MRO will cancel the test                                For example, FMCSA only covers CDL holders. If the
                                                                  program refers to “covered employee” as an employee
     8.   Fail to cooperate with any part of the                  with a commercial driver’s license, the program is
          testing process (e.g., refuse to empty                  probably fashioned after FMCSA regulations.
          pockets when directed by the collector,
          behave in a confrontational way that                    REFERENCE
          disrupts the collection process, fail to wash           49 CFR 655.15
          hands after being directed to do so by the              49 CFR 40.191; 40.197; 40.261
          collector)                                              49 CFR Part 382
     9.   For an observed collection, fail to follow the
          observer's instructions to raise your                   SOURCES OF INFORMATION
          clothing above the waist, lower clothing                The grantee’s drug and alcohol policy and up to three
          and underpants, and to turn around to                   policies    of   any    subrecipients,    contractors,
          permit the observer to determine if you                 subcontractors or lessees with safety-sensitive
          have any type of prosthetic or other device             employees will be reviewed. If the grantee is covered
          that could be used to interfere with the                by FRA or USCG, it should document that it complies
          collection process                                      with FRA or USCG regulations. In these situations, the
                                                                  grantee should confirm that there are no employees
     10. Possess or wear a prosthetic or other                    subject to FTA requirements.
         device that could be used to interfere with
         the collection process
                                                                  DETERMINATION
     11. Admit to the collector or MRO that you                   If the policies reviewed do not include any of the
         adulterated or substituted the specimen                  above provisions required by the regulations, the
                                                                  grantee is deficient.
     Instead of listing all the refusals, the policy may
     state that refusals to test are listed in 40 CFR
     Part 40, as amended, or 49 CFR 40.161 as                     If a grantee or its subrecipient, contractor,
     amended for urine collections and 49 CFR                     subcontractor or lessee has not updated its policy to
     40.261 as amended for breath tests. The policy               reflect updates and/or amendments to the regulations,
     should then state that a copy of 49 CFR Part 40              the grantee is deficient.
     is available upon request.
 •   Description of the consequences for a covered                SUGGESTED CORRECTIVE ACTION
     employee who has a verified positive drug test               The grantee will be directed to correct the policy to
     result or a confirmed alcohol test with an                   bring it into compliance, obtain governing board or
     alcohol concentration of 0.04 or greater. If the             other “final authority” approval, and re-communicate
     system has a second chance policy, a                         the policy to all affected employees. The grantee will
     description of the evaluation and treatment                  be directed to submit the new or revised policy to FTA,
     processes must be included.                                  and/or submit to FTA the amended policy of the
                                                                  subrecipient, contractor, subcontractor or lessee.
 •   Description of the consequences for covered
     employees found to have an alcohol




Drug and Alcohol Program                                   21-4                                                  FY2010
4.    Do     the    grantee,    subrecipients,                   DETERMINATION
      contractors,     subcontractors     and                    If the policy omits the required information, tests are
                                                                 not being conducted, or substances are not being
      lessees conduct the following types of                     tested, the grantee is deficient.
      drug and alcohol testing:
      a. Pre-employment (alcohol optional)                       SUGGESTED CORRECTIVE ACTION
      b. Random                                                  The grantee will be directed to correct the policy to
      c. Post-accident                                           bring it into compliance, obtain governing board
      d. Reasonable suspicion                                    approval and re-communicate the policy to all affected
                                                                 employees. The grantee will be directed to implement
      e. Return-to-duty (only for employers                      the testing program immediately if any requirement is
          with 2nd chance programs)                              lacking and to submit the revised policy to FTA.
      f. Follow-up (only for employers with
          2nd chance program)?
                                                                 6.     Are the random testing rates of 25
5.    Do    the    grantee,    subrecipients,                           percent for drugs and 10 percent for
      contractors,    subcontractors     and                            alcohol achieved?
      lessees test for the following
      substances:     marijuana,    cocaine,                     EXPLANATION
      opiates, phencyclidine, amphetamines,                      Random testing rates of safety sensitive employees
                                                                 for drugs and alcohol must be conducted at levels
      and alcohol?                                               specified by FTA. The current minimum random
                                                                 testing rate for drugs is set at 25 percent. The
EXPLANATION                                                      minimum random testing rate for alcohol is 10 percent
Six types of testing are required by the drug and                of the number of safety sensitive employees annually.
alcohol    testing     regulations.  Pre-employment
(mandatory for drugs and optional for alcohol),                  Grantees that have their own random pool of safety
random, post-accident, and reasonable suspicion                  sensitive employees must be able to document that
under certain conditions must be conducted by all                they are meeting the required rates for random drug
grantees. If the grantee offers rehabilitation and the           and alcohol tests. Grantees that are part of a larger
opportunity for an employee who tested positive to               consortium random pool must be able to document
return to work, it must conduct return to duty and               that the consortium’s random testing meets the FTA
follow up testing also. Note that employees returning            required rates.
to duty from an absence of 90 days or more and that
have been removed from the random testing pool
must pass a pre-employment test(s) (not a return-to-             REFERENCE
duty) before being placed back into safety-sensitive             49 CFR 655.45
duty.
                                                                 SOURCES OF INFORMATION
The grantee is required to test for the following                The reviewer will determine the appropriate number of
substances:      marijuana,   cocaine,   opiates,                random tests for the most recent calendar year.
phencyclidine, amphetamines and alcohol.
                                                                 DETERMINATION
If the grantee conducts pre-employment alcohol tests             As of the date of the site visit, if the number of random
of covered employees, the testing is conducted under             tests is below 90 percent of the required number for
FTA authority and the grantee must follow Part 40                the year, the grantee is deficient.
testing procedures.
                                                                 SUGGESTED CORRECTIVE ACTION
REFERENCE                                                        The grantee will be directed to develop and implement
49 CFR 655.31, 655.33, 655.34, 655.41, 655.42,                   a plan to bring the random testing rate to the required
655.43, 655.44, 655.45, 655.46, and 655.47                       level.

SOURCES OF INFORMATION
The grantee’s drug and alcohol policy will be reviewed
to ensure that it indicates clearly when and under what
circumstances employees will be tested for drugs and
alcohol.    Specific employee records will not be
examined.




Drug and Alcohol Program                                  21-5                                                 FY2010
7.     Do     the   grantee,   subrecipients,                       REFERENCE
       contractors,    subcontractors    and                        49 CFR 655.44
       lessees conduct post accident testing
                                                                    SOURCES OF INFORMATION
       under FTA authority only when the                            Provide a copy of a post-accident form, if used. During
       conditions set forth in Part 655 are                         the site visit, the reviewer may examine a sample of
       met?                                                         accident reports in which post accident testing was
                                                                    performed as well as copies of accident reports in
EXPLANATION                                                         which post accident testing was not performed.
FTA requires that a DOT post accident test be
administered under two circumstances: 1) in the event               DETERMINATION
of a fatal accident and 2) in the event of a non-fatal              If a covered employee was not tested following a
accident.                                                           nonfatal accident and the grantee cannot properly
                                                                    document its determination, the grantee is deficient. If
A fatal accident is defined as an occurrence                        the grantee conducted a post-accident test under
associated with the operation of a transit revenue                  FTA’s authority for an accident that does not meet the
vehicle or ancillary vehicle (non-revenue requiring a               Part 655 definition of accident, it is deficient.
CDL or transit police), which results in the loss of a
life.                                                               SUGGESTED CORRECTIVE ACTION
                                                                    The grantee will be directed to develop and implement
A non-fatal accident is an occurrence associated with               a process to make proper post accident
the operation of a transit revenue vehicle or ancillary             determinations including procedures to document the
vehicle, defined by the following:                                  decision-making process. The grantee will be directed
  •    One or more individuals is immediately                       to develop and implement a process to ensure that
       transported for medical treatment away from                  only accidents that meet the definition of an accident
       the accident                                                 under Part 655 are done under FTA’s authority. The
  •    Any vehicle incurs disabling damage requiring a              grantee will be directed to submit the new process and
       tow truck                                                    documentation of its implementation to FTA.
  •    A rail transit vehicle is taken out of service as a
       result of the accident
                                                                    8.     Do     the    grantee,     subrecipients,
Following a fatal accident involving a transit vehicle,                    contractors,     subcontractors      and
grantees and/or their contractors and subcontractors
with safety-sensitive employees are required to test all                   lessees check on the drug and alcohol
surviving covered employees operating the vehicle at                       testing record of new hires and
the time of the accident and, using the best available                     transfers that they are intending to use
information at the time of the decision, any other                         to perform safety-sensitive duties?
covered employee whose performance may have
contributed to the accident.
                                                                    EXPLANATION
                                                                    Grantees, subrecipients, contractors subcontractors
Following a nonfatal accident involving a transit                   and lessees, after obtaining an employee's written
vehicle, grantees and/or their contractors and                      consent, request information on the DOT drug and
subcontractors with safety-sensitive employees are                  alcohol testing history of any employee who is seeking
required to test all covered employees operating the                to begin performance of safety-sensitive duties for the
vehicle and, using the best available information at the            grantee for the first time (i.e., a new hire, or if an
time of the decision, any other covered employee                    employee transfers into a safety-sensitive position).
whose performance may have contributed to the                       Grantees must request the following information from
accident unless the employer determines that an                     DOT-regulated employers who have employed the
employee’s     performance     can     be    completely             employee during any period during the two years
discounted as a contributing factor to the accident. A              before the date of the employee's application or
decision not to test is made using the best information             transfer:
available at the time of the decision and must be
                                                                       •   Alcohol tests with a result of 0.04 or higher
documented in detail, including the decision-making
                                                                           alcohol concentration
process used to make the determination.
                                                                       •   Verified positive drug tests
                                                                       •   Refusals to be tested (including verified
Post-accident testing for “accidents” that do not meet
                                                                           adulterated or substituted drug test results)
the definition of an accident under Part 655 must be
                                                                       •   Other violations of DOT agency drug and
done under the grantee’s own authority and non-DOT
                                                                           alcohol testing regulations
custody and control forms and alcohol testing forms
must be used.




Drug and Alcohol Program                                     21-6                                                FY2010
  •    The employee's successful completion of DOT                    SUGGESTED CORRECTIVE ACTION
       return-to-duty requirements (including follow-up               The grantee will be directed to submit to FTA a
       tests), if applicable                                          process to ensure that the previous drug and alcohol
                                                                      testing records of first-time safety sensitive employees
If the previous employer does not have information                    are reviewed.
about the return-to-duty process (e.g., for an employer
who did not hire an employee who tested positive on a
pre-employment test), the grantee must obtain this                    9.     Are drug and alcohol testing program
information from the employee.
                                                                             records maintained in a secure
The grantee must obtain and review this information                          location with controlled access?
before the employee first performs safety-sensitive
functions, if feasible. If this is not feasible, the grantee          EXPLANATION
must obtain and review the information as soon as                     The grantee must maintain records on program
possible. After 30 days, the grantee must not permit                  administration and the test results of individuals for
the employee to perform safety-sensitive functions                    whom it has testing responsibility. The records must
unless it has obtained or made and documented a                       be maintained by the grantee in a secure location with
good faith effort to obtain this information.                         controlled access. If a consortium is used to
                                                                      administer the testing program, the consortium can
If the employee refuses to provide this written consent,              maintain some or all of the records. It is necessary,
the grantee must not permit the employee to perform                   under this circumstance, for the grantee to maintain a
safety-sensitive functions. If the grantee obtains                    duplicate set of records. It is the responsibility of the
information that the employee has violated a DOT                      grantee to exercise and document oversight activities
agency drug and alcohol regulation, it must not use                   to ensure that records are accurate and current and
the employee to perform safety-sensitive functions                    that they comply fully with FTA regulations.
unless it also obtains information that the employee
has subsequently complied with return-to-duty                         As an example, the grantee should maintain program
requirements.                                                         records in locked file cabinets and a locked file room,
                                                                      with a limited number of keys that cannot be
Grantees must also ask the employee whether he or                     duplicated without proper authorization. In addition,
she has tested positive, or refused to test, on any pre-              only the program manager and his/her designee(s)
employment drug or alcohol test administered by an                    should have access to the keys.
employer to which the employee applied for, but did
not obtain, safety-sensitive transportation work                      REFERENCE
covered by DOT agency drug and alcohol testing rules                  49 CFR 655.71
during the past two years. If the employee admits that
he or she had a positive test or a refusal to test, the               SOURCES OF INFORMATION
grantee must not use the employee to perform safety-                  The grantee should be able to document how records
sensitive functions until and unless the employee                     are stored.
documents successful completion of the return-to-duty
process. The employee records must be maintained
for three years.                                                      DETERMINATION
                                                                      If the drug and alcohol testing program records are not
                                                                      maintained in a secure location with controlled access,
REFERENCE                                                             the grantee is deficient.
49 CFR 40.25
                                                                      SUGGESTED CORRECTIVE ACTION
SOURCES OF INFORMATION                                                The grantee will be directed to submit to FTA
The reviewer may request a copy of the applicant                      documentation that is has moved program records to
consent form and the letter requesting drug and                       a secure location with controlled access.
alcohol testing information from prior DOT employers.
The reviewer should not request to see copies of
employee drug test results, consent forms, and/or any
other potentially confidential material.                              10.    Has the grantee submitted annual
                                                                             calendar       year       Management
DETERMINATION                                                                Information System (MIS) reports for
If the grantee does not obtain an applicant’s consent,                       itself,  subrecipients,    contractors,
obtain the required information, or obtain the
information for the past two years, the grantee is
                                                                             subcontractors       and       lessees
deficient.                                                                   summarizing drug and alcohol test
                                                                             results as requested by FTA? Were
                                                                             the reports submitted by March 15?


Drug and Alcohol Program                                       21-7                                                 FY2010
EXPLANATION                                                      12.   If the grantee contracts private
The grantee must prepare, maintain and submit to                       carriers, how does it ensure that they
FTA annual MIS reports for itself and collect, maintain
and submit annual MIS reports for Section 5307,
                                                                       comply with FTA drug and alcohol
5309, and 5311 subrecipients, contractors and                          requirements?
lessees and their contractors with safety sensitive
employees summarizing drug and alcohol program                   EXPLANATION
testing results. The reports cover the prior calendar            Grantees are responsible for passing through drug
year. Grantees must submit to FTA the reports for                and alcohol testing requirements, providing technical
FTA funded ferry operations. Grantees must retain                assistance in understanding and meeting the
copies of the reports for five years.                            requirements, and overseeing the drug and alcohol
                                                                 programs of subrecipients, contractors, subcontractors
The standard MIS report forms, which are on the web,             and lessees with safety-sensitive employees. The
must be used “as-is;” they may not be combined or                oversight program must ensure that all aspects of the
modified by a grantee and must be filled out                     drug and alcohol programs, including use of vendors
completely. The MIS reports must be submitted to the             and vendor activities, are in compliance with 49 CFR
FTA Office of Safety and Security or its designated              Part 655 Prevention of Alcohol Misuse and Prohibited
agent by March 15 following the calendar year for                Drug Use in Transit Operations, as amended, and 49
which the reports were prepared. While paper reports             CFR Part 40 Procedures for Transportation Workplace
are still accepted, FTA strongly encourages grantees             Drug and Alcohol Testing Programs, as amended.
to submit via the Internet at http://damis.dot.gov/.
                                                                 FTA does not dictate how grantees must oversee the
REFERENCE                                                        programs. However, elements of an effective oversight
49 CFR 655.72                                                    program will ensure:
MIS report forms                                                   •   Drug and alcohol policies include required
                                                                       elements and are approved by the governing
SOURCES OF INFORMATION                                                 body
The reviewer may request documentation that the MIS                •   Employees         performing     safety-sensitive
reports were submitted as required, and discuss the                    functions are covered
grantee’s process for obtaining MIS reports from                   •   Marijuana, cocaine, opiates, phencyclidine,
subrecipients, contractors, subcontractors and lessees                 amphetamines, and alcohol are tested for
with safety sensitive employees and ensuring the
                                                                   •   Pre-employment,        random,    post-accident,
reports are forwarded to FTA by March 15. MIS
                                                                       reasonable suspicion, return-to-duty, and
reports for the grantee and a sample of reports for
                                                                       follow-up testing is conducted properly
subrecipients, contractors, subcontractors and lessees
also may be reviewed.                                              •   Proper forms are used, the forms are
                                                                       completed correctly, the records are stored in a
                                                                       secure location with limited access, and the
DETERMINATION
                                                                       records are maintained for the required amount
If the MIS reports for the grantee, subrecipient,
                                                                       of time
contractor, subcontractor or lessee were not
submitted, the grantee is deficient.                               •   Employees and supervisors have received the
                                                                       required training
SUGGESTED CORRECTIVE ACTION                                        •   Testing performed under the employer’s own
The grantee will be directed to prepare or collect and                 authority is segregated from the testing done
submit all delinquent MIS forms and to develop a                       under FTA’s authority (separate random testing
procedure for timely reporting of MIS forms. The                       pool, separate specimens, non-DOT forms
grantee will be directed to submit the new procedure,                  used)
documentation of its implementation and copies of the              •   MROs, SAPs, and collection site personnel
MIS reports to the FTA regional office.                                have the required credentials and training
                                                                   •   Collections are performed properly and the
                                                                       employer ensures that CCFs are reviewed and
11.   How does the grantee monitor                                     that collection site procedures and security are
                                                                       in compliance
      subrecipients, contractors and lessees
      with safety sensitive employees to                         If a private intercity bus operator, such as Greyhound,
      ensure that their drug and alcohol                         receives FTA operating assistance or operates FTA
      testing programs are administered in                       funded buses, the operator may be subject to FTA
      accordance with the regulations?                           drug and alcohol requirements. Private carriers are
                                                                 already covered by FMCSA drug and alcohol testing
                                                                 requirements (49 CFR Part 382) as drivers hold
                                                                 commercial driver’s licenses (CDLs). However, if



Drug and Alcohol Program                                  21-8                                                FY2010
employees that perform safety-sensitive functions as                      administrators, collection sites, MROs)
defined by Part 655 (e.g., operating a revenue service                    that support its program and the
vehicle, maintaining a revenue service vehicle,
controlling dispatch or movement of a revenue service                     programs of subrecipients, contractors,
vehicle) spend more than half of their time in FTA                        subcontractors and lessees to ensure
purchased vehicles or FTA funded operations, then                         compliance          with        program
Part 655 applies. Once determined, the employee will                      requirements?
be subject to pre-employment and random testing
under FTA authority. The assignment of regulatory
authority for reasonable suspicion and post-accident               EXPLANATION
testing depends on the function an employee is                     The grantee is responsible for the integrity of the drug
performing at the time of the incident/accident. Return-           and alcohol testing program and the quality of testing
to-duty and follow-up tests are assigned to the modal              services provided by vendors. Consequently, the
administration that generated the initial positive test            grantee should have a written contract that references
result. If subject to Part 655, the grantee must collect,          49 CFR Part 40 with each vendor and should monitor
retain and submit MIS reports annually for the private             the quality of its testing service vendors, including
carrier.                                                           collection sites, MROs, and SAPs. Grantees need only
                                                                   ensure that testing laboratories are HHS certified.
REFERENCE                                                          The grantee should not assume that its vendors are
49 CFR 655.81                                                      following the correct procedures or that they are
49 CFR 40.15                                                       knowledgeable about FTA regulations. Note that the
Implementation Guidelines for Drug and Alcohol                     FTA does not prescribe how a grantee must monitor
Regulations in Mass Transit                                        its vendors. The grantee simply must show evidence
Drug and Alcohol program compliance audit                          that monitoring is being performed at some level.
questionnaires                                                     Examples of monitoring activities include maintaining
                                                                   on file copies of vendor qualifications, conducting
SOURCES OF INFORMATION                                             periodic mock collections, investigating reports of
Subrecipient agreements, contracts, leases and                     employees or subrecipients of flawed procedures,
monitoring documents (reports, questionnaires, site                requiring detailed explanations for cancelled tests, and
visit checklists) may be reviewed for a description and            documenting error correction training.
the details of the grantee’s drug and alcohol oversight
program. The grantee’s program will be discussed and               REFERENCE
the files for the subrecipients, contractors and lessees           49 CFR 40.15
to be visited may be reviewed during the site visit.               HHS certified laboratories

DETERMINATION                                                      SOURCES OF INFORMATION
If the grantee does not oversee the drug and alcohol               Copies of contracts and monitoring reports will be
programs or if its oversight program is inadequate to              reviewed.
ensure minimal compliance, it is deficient.
                                                                   DETERMINATION
SUGGESTED CORRECTIVE ACTION                                        If there are no written contracts and/or the grantee
The grantee will be directed to submit to FTA a drug               cannot show that it is monitoring vendor operations,
and alcohol oversight program for its subrecipients,               the grantee is deficient.
contractors, subcontractors and lessees.
                                                                   SUGGESTED CORRECTIVE ACTION
                                                                   The grantee will be directed to submit to FTA
13.    How does the grantee monitor vendors                        executed contract(s) with vendor(s) and/or monitoring
       (e.g.,  consortia,    third    party                        procedures.




Drug and Alcohol Program                                    21-9                                                FY2010