transit safety fta dot gov DrugAndAlcohol Training by MikeJenny

VIEWS: 7 PAGES: 72

									Module 3 -
DRUG and
ALCOHOL
TESTING

             1
THE DAPM’S WORLD




                   2
   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
                                                            3
PRE-EMPLOYMENT




             4
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.”




                                                 5
   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!
                                                    6
    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         7
         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!)
                                                        8
             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)
                                                                 9
RANDOM TESTING




             10
          Random Testing
                Deter, 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.”




                                                11
 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
                                               12
 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

                                         13
Random Selections




                    14
          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
                                               15
 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


                                                          16
          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

                                                          17
           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!**
                                              18
         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
                                                19
     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.”


     So, what do random spreads look like?

                                                      20
                         Year - Spread - Good

                                   Chart 1: Random Tests Are Reasonably Spread Throughout
                                                      The Calendar Year
                     Jan-01

                     Nov-00

                     Sep-00
Date of Collection




                      Jul-00

                     May-00

                     Mar-00

                     Jan-00

                     Nov-99

                     Sep-99
                               0      5      10       15      20       25      30   35
                                            Cumulative Random Tests Examined


                                                                                            21
                     Year-Spread - Not So
                            Good
                                  Chart 1: Random Tests Not Reasonably Spread
                                          Throughout The Calendar Year
                     Nov-00


                     Aug-00
Date of Collection




                     May-00


                     Feb-00


                     Nov-99


                     Aug-99
                              0         5             10              15        20

                                        Cumulative Random Tests Examined




                                                                                     22
                           Year - Spread - Bad
                               Chart 1: Random Testing Not Reasonably Spread Across All
                                         Calendar Days: No Testing Early in Year,
                                             Catch-up Testing at End of Year
                  Dec-00



                  Sep-00
Collection Date




                  Jul-00



                  Apr-00



                  Jan-00
                           0         5              10             15        20           25
                                          Cumulative Random Tests Examined

                                                                                          23
      The Deterrent Spread

  Spread testing throughout days & hours
     of Service
      FTA stressed this in a „98 interpretation:
  “A grantee's drug and alcohol program manager must schedule
  random testing for any time a safety-sensitive function is being
  performed. In addition, random testing must occur throughout the
  period when safety-sensitive functions are being performed.
  Employees performing safety-sensitive functions after normal
  business hours or on the weekends remain subject to random
  testing. The fact that random testing during "off hours" may be an
  administrative inconvenience is not an acceptable reason not to
  test.” (Casper „98)

So what do Weekday and Hourly Spreads Look Like?
                                                                   24
                        Week Spread - Good
                            Chart 2: Random Testing Reasonably Spread Across All Days
                                                   of the Week
                    7
          7 = Sun
 Weekday of Test:




                    6

                    5
1 - Mon




                    4

                    3

                    2

                    1
                        0      10          20        30        40      50   60          70


                                    Cumulative Random Tests Examined

                                                                                   25
        Week Spread - Not So
               Good
                           Chart 2: Random Testing Is Not Reasonably Spread Across
                                   All Service Days (No Testing on Weekends)
                   7


                   6
Weekday of Test:
1 = Mon 7 = Sun




                   5


                   4


                   3


                   2


                   1
                       0      5       10        15        20       25       30   35
                                           Cumulative Random Tests Examined



                                                                                      26
                            Week Spread - Bad

                                    Chart 2: Random Testing Is Not Reasonably Spread
                                                 Across All Service Days
                        5
1 = Monday 5 = Friday




                        4
   Weekday of Test:




                        3



                        2



                        1
                            0   1       2        3        4       5        6   7       8
                                            Cumulative Random Tests Examined

                                                                                       27
                           Hour Spread - Good

                               Chart 3: Random Testing Reasonably Spread Across All
                                                Hours of Operation
                   12 AM

                   9 PM

                   6 PM
Time of the Test




                   3 PM

                   12 PM

                    9 AM

                    6 AM

                    3 AM

                   12 AM
                           0       10       20      30        40       50      60     70
                                            Cumulative Random Tests Examined
                                                                                           28
                      Hour Spread - Not So
                             Good
                               Chart 3: Random Testing Not Reasonably Spread Across All
                                                    Service Hours
                   8 PM

                   6 PM
Time of the Test




                   4 PM

                   2 PM

                   12 PM

                   10 AM

                    8 AM

                    6 AM
                           0        2     4     6      8     10     12     14    16   18   20
                                              Cumulative Random Tests Examined

                                                                                                29
      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



                                                           30
      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
                                                       31
          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?

                                                            32
           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:
            oA   selection list
            oA   notification form
            oA   CCF/ATF
            oA   result
                                                      33
POST-ACCIDENT
      TESTING




            34
Post-Accident Testing
training, 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.”



                                            35
     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
                                          36
    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:


                                    37
   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
 TheRSV is a rail vehicle and is
  removed from revenue service
                                       38
       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!)

                                                          39
    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”
                                                             40
         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
                                         41
                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

                                                            42
     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
                                                     43
 FTA, COMPANY, No
       Test?


                 Driver Given Citation?



Slip and Fall?



                                      44
   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?
                                        45
      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?
                                                 46
REASONABLE
  SUSPICION




          47
  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.”




                                            48
  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                                   49
  Reasonable Suspicion
        Testing

Required Steps:

• Documented reasonable suspicion
 interview by trained official

• Reasonable suspicion test, if needed

                                     50
          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”


                                                         51
       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)
                                               52
 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
                                              53
     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)).”



                                                            54
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



                                                                 55
  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


                                              56
  Dispatchers are often the “First Line of
Defense” for Reasonable Suspicion Testing




                                         57
       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?

                                       58
RETURN-TO-DUTY and
        FOLLOW-UP




                 59
  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].”




                                               60
  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.
                                                61
   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
                                    62
      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
                                             63
         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!

                                                64
          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)




                                                                65
                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!

                                                              66
           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!


                                                               67
     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.”


                                              68
  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
                                                   69
     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

                                                         70
    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

                                                   71
     Q&A and Lunch

 Questions on Drug and Alcohol
 Testing




                              72

								
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