Sandra D. Sullivan, M.Ed., LADC1, CEAP Massachusetts Bay Transportation Authority Assistant Director Occupational Health Services Substance Abuse Professional FTA Drug & Alcohol Conference Atlanta April, 2015

Why Bother? 2 Your company is a microcosm of society. “If it’s out there…….it’s in here.” Some of your employees are using and abusing substances. Ignoring this is DANGEROUS

Goals Review overall technical requirements 49 CFR part 40; 49 CFR part 655 Employer responsibilities first AND second chance Subpart O, Importance and Role SAP’s responsibilities follow-up testing and aftercare recommendations What makes an effective vs. ineffective Second Chance Program? Why or why not have a second chance program? Benefits vs. drawbacks 3

Technical Requirements 49 CFR Part CFR Part CFR Part 40 Subpart O 4

Second Chance Program The Employer MUST: determine what types of testing violations you’re going to have a second chance for????? Pre-employment? Random? Reasonable suspicion? Post accident? 5

Second Chance Program Federal Follow the procedures of 49 CFR Part 40 Subpart O Proof of compliance with SAP recommendations Observed testing for all follow-up tests §40.63 (b) 6

Second Chance Program Have a Company Drug and Alcohol Policy which supports this decision compliant with § This may mean a re-write of, or addendum to, current policy to include a second chance program Must be disseminated in accordance with §

Follow-up Testing Program Typically the person who designed the random pool will also be able design your follow-up testing pool Depending on the type of draw your company does for random selection (daily, monthly, quarterly) the follow-up selection may be a different increment 8

Follow-up Testing Program § The number and frequency of follow-up tests and whether these tests are for drugs, alcohol, or both is determined solely by the SAP The decision on specific dates to test is the employer’s 9

Follow-up Testing Program Have well trained collectors. They must be versed in regulations and experience SPECIFIC to §40.67 Part of training your observers (who may also be your collectors) is to teach them to be observant One of the reasons there are directly observed collections is the likelihood of substitution/tampering is much greater. Monitor your testing sites for compliance frequently 10

Technical Requirements for the Employer §40.23(a), §655.61(a)(1) After a verified positive test result the employer shall require that the employee cease performing any Safety Sensitive Duty § Responsible for SAP referrals for ALL federal violations and refusals to test 11

Employer Responsibilities Ensure the SAPs on your list are valid Have qualifying credentials Demonstrate knowledge of DOT regulations Produce training records (SAP exam, continuing education) Review SAP letters for accuracy and compliance prior to agreeing to returning employee to duty 12

Interview Your SAP What is the SAP’s understanding of their role as it relates to safety-sensitive duties? How long have they been a SAP and how many evaluations have they completed? Does the SAP understand the DOT Regulations? 13

Interview Your SAP What types of recommendations does the SAP think are appropriate for education and treatment? Has the SAP ever found an employee ineligible to return to work? Why? 14

Regulation Violations When is a SAP evaluation required? DOT vs. Non-DOT 15

The Role of the SAP Gatekeeper for the return-to-duty process Protect public safety Thus, not a traditional counselor Recovery may or may or be the goal Not an advocate for employer or employee 16

What is the role of the SAP after a verified positive test result? § Face-to-face clinical assessment Referral to appropriate education and/or treatment Face-to-face follow-up evaluation 17

What is the role of the SAP after a verified positive test result? (cont.) Provide employer with follow-up observed testing plan Specific recommendations for continued education and treatment 18

Initial Clinical Evaluation § Clinical face-to-face evaluation Psychosocial History Family History Tools for Assessment 19

Referral §40.293(2)(c),(d) Role of SAP in referring (education & treatment) Appropriate referral Insufficient referral §40.299(b) No conflict of interest 20

SAP Initial Report to DER § Initial On SAP letterhead, including SAP phone number Employee’s name and Social Security Number Employer’s name and address 21

SAP Initial Report to DER (cont.) Specific violation type and date Date of assessment Education/treatment recommendations 22

SAP Follow-up Evaluations § Follow-up evaluation Face-to-face Documentation Determination of compliance Recommendations for continued education and/or treatment 23

Determination of Compliance Yes=Letter to DER No=Letter to DER Not yet=Now what? 24

SAP Follow-up Report to DER Employee’s name and Social Security Number Employer’s name and address Specific DOT violation and dates of initial and follow-up evaluations Initial assessment and synopsis of treatment plan Documentation from medical/clinical agencies providing the recommended education and/or treatment 25

Inclusive dates of employee’s program participation Clinical characterization of employee’s program participation SAP’s clinical determination as to whether the employee has demonstrated successful compliance Follow up testing plan Recommendations for Employee’s continuing treatment, education and/or support group services SAP’s telephone number 26 SAP Follow-up Report to DER (cont.)

Follow-up Testing Plan Must specify: Who What How How many How long Accompanying follow-up testing plan should be a separate document This follows the employee to any DOT regulated Employer/position 27

Continuing Education/Treatment Recommendations Post RTD What makes sense for Public Safety Provide the employee and employer with recommendations for continuing education and/or treatment Who monitors this? 28

Non-Compliance with SAP Recommendations § (d)(1) Follow-up report On SAP letterhead, including SAP phone number Employee’s name and Social Security Number Employer’s name and address Reason for initial assessment (specific violation type and date) 29

Non-Compliance with SAP Recommendations (continued) Name of practices or services providing recommended education/treatment and documentation of participation/lack thereof Clinical determination that employee has not demonstrated successful compliance Of course there is no established testing plan 30

Employer Responsibility when SAP Indicates Non-Compliance 31 § (d)(2) Can NOT return Employee to Safety Sensitive Duty until compliant § (d)(3) May choose to give employee more time to successfully comply with SAP recommendations § (d)(4) Can take personnel action consistent with policy and or labor/management agreements

Return-to-Duty Process § Written report to DER Successful compliance with education/treatment Followed by: Written follow-up testing plan Number and frequency of follow-up tests and whether these tests will be for drugs, alcohol, or both 32

The Employer’s Role in the RTD Process § If SAP has determined compliance: SAP writes report to DER indicating successful compliance Employer decides whether or not to order RTD test (observed) NOT the SAP Employer usually executes a Return to Duty or Last Chance Agreement with Union and employee 33

Technical Requirements for the Employer § (b) Final say over returning an employee to duty. This is a personnel decision you have the discretion to make § (a) Carry out return-to-duty and foll0w-up testing program as directed by the SAP § (4) Cannot impose additional tests over and above the SAP 34

Follow-Up Testing The SAP determines the number and type of tests as well as the duration of the testing program Must account for employees who are not performing safety sensitive functions and adjust their follow-up testing program accordingly 35

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Possible Pitfalls Lack of Management buy-in to program and importance of Drug and Alcohol testing in the workforce Cost Perceived or Real Possible Public Relations Nightmare 37

Possible Pitfalls Bias Failure to articulate cost benefit analysis to company Returning employees to work before they have demonstrated successful compliance 38

Benefits Safer employee-less accidents Improved employee after receiving treatment Decrease in absenteeism Increase workforce morale 39

Benefits Frontend costs vs. Long term costs Employee replacement costs vs. Rehabilitation costs Employee loyalty Overall effects on the community 40

Ineffective Second Chance Program Poorly managed and administrated from all points Collections Return to Duty SAPs Lacks creditability Is selectively implemented 3 rd, 4 th, 5 th 41

Ineffective Second Chance Program A policy and training program which fails to articulate procedures and consequences for violations Breaches confidentiality Management and supervisors unprepared to support the returning employee 42

Effective Second Chance Program Managed and administered Creditable Consistently implemented 43

Effective Second Chance Program Ensure follow-up testing pool is accurately administered Follow-up testing pool designed to test for drugs, alcohol or both Extensive research and training of collectors, observers and SAPs….don’t forget your supervisors 44

Effective Second Chance Program Ongoing auditing of providers and vendors Make the Drug and Alcohol Testing Program part of every management conversation Success stories return to duty and are best advocates for the program 45

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THANK YOU Sandra D. Sullivan, M.Ed., LADC1, CEAP Massachusetts Bay Transportation Authority Assistant Director Occupational Health Services Substance Abuse Professional 52