Essentials for Safety-Sensitive Employee Onboarding Phyllis Walker (MARTA) & Joe Lofgren (Cahill Swift) FTA Drug & Alcohol Program National Conference Sacramento – March, 2016

About – Today’s Session Review the central elements of hiring and onboarding applicants/employees who will be covered by the requirements of FTA’s drug and alcohol testing regulation, 49 CFR Part 655, including:  Previous-employer Checks  Pre-employment Testing  Training  Policy Basics  Leave Management  Best Practices

About – Who We Are Phyllis Walker Occupational Medical Services Supervisor at the Metropolitan Atlanta Rapid Transit Authority More than 3000 covered employees ~500 FTA pre-employment tests per year PHR (Professional Human Resources) and SHRM-CP(SHRM-Certified Professional) designations Joe Lofgren Senior Analyst at Cahill Swift, LLC FTA Audit Team Leader since 2002 Led audits of over 100 grantees/state Departments of Transportation Frequent speaker/trainer at DOT D&A events throughout the country

About – Why this is Important Employees deserve to have clear understanding of:  FTA/DOT rules and requirements  Your rules and requirements Failing to conduct pre-employment drug testing of covered applicants – and employees returning from leave – is a serious violation  FTA may require you to pull your drivers off the road immediately! Previous-employer requests (§40.25) can be confusing, but are critical Handling employee leave and safety-sensitive status can be difficult, and can lead to serious violations

About – Goals of this Session Clear understanding of FTA’s requirements related to: 1.Pre-employment drug testing 2. Optional pre-employment alcohol testing 3.Basic policy compliance 4.Previous-employer checks 5.Training: a.Effects of drug use b.Reasonable suspicion 6.Employee leave

General Requirements FTA Drug & Alcohol Compliance is just one element of the onboarding process

Often begins with the hiring process Seeks to help employee perform job better Connect with agency’s culture and way of doing things Extends beyond New Employee Orientation May continue during career What is Onboarding?

HIRING OVERVIEW Identify Staffing Needs Post Jobs External Internal Transferee Requirements Must Be Met Suitable Candidate Interview Employment Testing Reference Checking/ Screening Release of Information Selection

HIRING OVERVIEW, Cont. Employment Offer Made Contingent Post-offer Physicals DOT/Medical Certification Exams Physical (Job Description) Physical Abilities Assessments Pre-Employment Drug Testing Candidate Hired Start Date Confirmed Orientation Policy Training Agency specific procedures for drug & alcohol testing Substance Abuse Education

FTA Pre-employment Requirements Requirements for hiring/transferring employees, per Parts 655 & 40

§ – Pre-employment Drug 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.”

12 Testing Sequence Offer MadeTest GivenNegative result received Safety-sensitive function performed Question: What is not listed here?

16 Pre-Employment Test Timing After Offer of Job (alcohol only) Before first safety-sensitive duty  Includes any movement or control of covered vehicle, anytime, anywhere (e.g., in the yard) Negative result good for 90 days Don’t assume “no news is good news” Canceled test must be redone

17 Pre-Employment Testing Refusals Not same as Random, Post-Accident, etc. NOT a refusal if applicant:  fails to appear for test  arrives late to the collection site  leaves the collection site prior to commencement of the test

Pre-Employment Testing Refusals Refusal occurs once the collection has commenced For Pre-employment tests only :  collection commences when the collector hands the donor the cup

Pre-employment Alcohol Testing Separate section of regulation - § Testing is optional However, if you choose to do it: 1.Before SS duty (includes transferee, just like drug testing) 2.Result of less than 0.02 BAC 3.Must occur for all covered applicants/employees  Not just drivers, not just applicants whose last name starts with W or L, etc. 4.Must occur after an offer of employment/transfer is made 5.Must be performed per Part 40 (e.g., a DOT ATF must be used)

Pre-employment Alcohol Testing Two important notes! 1. Your policy must offset company requirements from FTA/DOT requirements  Company-required tests must be performed under company authority, using Non-DOT forms  That said, if your company chooses to require pre-employment alcohol testing of covered employees, these are DOT tests, not company tests 2. You may not require that non-Covered personnel submit to pre-employment alcohol tests using DOT forms

Policy § requires each covered employer to adopt and disseminate an anti-drug use and alcohol misuse statement

Policy Importance Policy is keystone guidance document for your company and your employees Applicants and employees must understand weight of FTA requirements (and company requirements, as applicable) Prohibitions  Consequences  “What can’t I do?”  “What will happen to me if I do?” /

Policy - Key Requirements Testing required by Part 655, conducted per Part 40 Who is covered? What types of conduct are prohibited, and when?  Use of prohibited drugs at all times  Use of alcohol:  While performing covered functions  W/in four hours prior to performing covered functions  For eight hours after an accident (or until test is performed)  Refusing a required test  Policy must list refusal behaviors set forth by Part 40

Policy - Key Requirements Consequences of refusal, positive drug test, or alcohol result of 0.04 or greater, including:  Removal  Referral  Return-to-Duty Consequences of alcohol result of 0.02 to  Removal until < 0.02 or  Removal until next shift (at least 8hrs later)

Policy - Key Requirements Circumstances of Testing  Pre-employment  Reasonable-suspicion  Post-accident  Random  Return-to-Duty/Follow-up

Policy – Onboarding Implications How do you provide policy (or written notice of availability) to new employees/transferees? When is policy provided?  Before hire?  During training?  Before SS duty?

Previous-employer Checks §40.25 requires that you request from previous employers who used the employee/applicant in a covered position five (5) pieces of information about their testing history

Previous-employer Checks Applies to all covered DOT positions  Bus drivers  Truck drivers  Transit dispatchers  Ship captains  Commercial airplane pilots  Many more! So do not ask simply “have you worked at a transit agency before?”

Previous-employer Checks Before SS duty, or w/in 30 days of first SS duty Applies “only to employees seeking to begin performing safety-sensitive duties for you for the first time”  See January, 2002 ODAPC Q&A for more info Must provide written consent to previous employer  No blanket consent forms  No extraneous info  Consent is for the previous employer to release info

Previous-employer Checks Request the following information: 1. Alcohol tests with a result of 0.04 or higher 2. Verified positive drug tests 3. Refusals to be tested (including verified adulterated or substituted drug test results) 4. Other violations of DOT agency drug and alcohol testing regulations 5. SAP/RTD/FU documentation

Previous-employer Checks Section 40.25(j) also requires that you ask the employee if they have refused to test or tested positive on any DOT pre-employment test conducted during the past two years  Because failed pre-employment test = no previous employer Determine the mechanics of asking this question Very common audit finding! Regardless of discover method, employee/applicant who had previous violation must show proof of SAP process

Training § describes the types of education and training you must provide to each covered employee, and to personnel who may make reasonable-suspicion testing determinations

Training – Education Program Section (a) “The education component shall include display and distribution to every covered employee of: informational material and a community service hot-line telephone number for employee assistance, if available.”

Training – Covered Employees One time only 60 minutes on Effects and Consequences of drug use No specific requirement for alcohol misuse training If alcohol training (or policy training) included:  Must not infringe on 60 minutes of drug training

Training – Reasonable Suspicion Supervisors… Or other company officers 60 minutes:  physical, behavioral, and performance indicators of probable drug use 60 minutes:  physical, behavioral, speech, and performance indicators of probable alcohol misuse These are in addition to regular SS training, if applicable

Training – Onboarding Implications When will you provide this training? Will you require refresher training? Employees may be hired before you receive negative pre- employment result, but may not perform SS functions  Many employers provide training during this waiting period

Leave Management §655.41(d) requires pre-employment testing of employees who have been removed from the random testing pool for 90+ days

90-day Leave Employee has not performed SS function AND Employee is out of random testing pool Can keep employees in pool during absence  If selected, document lack of availability

90-day Leave Negative DOT pre-employment result Never a return-to-duty test!  RTD occurs after violation, SAP process  RTD tests are directly-observed! Unfortunate common finding!

Tips & BPs Some Tips and Best Practices for Onboarding covered employees

Best Practices Consistent, documented procedure Continuity plan Communication w/ other departments Periodic review of policy  Ensure GM/Board aware of policies Records maintenance plan compliant with §655.71

Tips Strong partnership with Recruiting and your clinic  Accountability  Continuous Improvement Partnership Meetings Be transparent Follow your policy and be consistent Renew your Drug Awareness campaign regularly

Tips Know Human Resources’ short/long term strategies  Hiring/Transfers  RIFs Communicate with Operations  Attend staff meetings, offer customized training  Audit yourself. Evaluate pre-employment testing and dates of hire

Thank you!