Cross Roads Drug and Alcohol Testing Decisions Road Supervisors Must Make Presented by Diana Byrnes, CUTR

Welcome Diana Byrnes Diana Byrnes Center for Urban Transportation Research Center for Urban Transportation Research FDOT Oversight and Technical Assistance Program FDOT Oversight and Technical Assistance Program C-SAPA C-SAPA

As a road supervisor you: Are the eyes and ears of your transit system Are the eyes and ears of your transit system Need to be vigilant Need to be vigilant Need to be empowered Need to be empowered Need to stay educated Need to stay educated Can be your transit system’s greatest asset! Can be your transit system’s greatest asset!

Today we are going to examine two test types that require a supervisor to make testing decisions: Reasonable Suspicion and Post Accident

Making Reasonable Suspicion Determinations

What is Reasonable Suspicion Testing? Reasonable suspicion testing is NOT a diagnostic tool. Reasonable suspicion testing is NOT a diagnostic tool. Testing is used only to rule out the possibility that the unusual behavior or appearance being observed may be caused by prohibited drug use or alcohol misuse Testing is used only to rule out the possibility that the unusual behavior or appearance being observed may be caused by prohibited drug use or alcohol misuse Most underutilized test type Most underutilized test type Often too few trained supervisors Often too few trained supervisors

Supervisory Role When it comes to reasonable suspicion testing; any one who has met at least the minimum FTA training requirements for Reasonable Suspicion Determinations is able to “make the call” When it comes to reasonable suspicion testing; any one who has met at least the minimum FTA training requirements for Reasonable Suspicion Determinations is able to “make the call” Job title is not a factor Job title is not a factor Dispatchers are excellent candidates for this authority! Dispatchers are excellent candidates for this authority! Frequently interact with operators Frequently interact with operators

FTA Training Requirements Minimum of 60 minutes of training on the signs and symptoms of probable prohibited drug use AND Minimum of 60 minutes of training on the signs and symptoms of probable prohibited drug use AND Minimum of 60 minutes of training on the signs and symptoms of probable alcohol misuse Minimum of 60 minutes of training on the signs and symptoms of probable alcohol misuse The training is only required ONCE during the tenure of employment The training is only required ONCE during the tenure of employment More than the minimum is highly recommended More than the minimum is highly recommended Refresher training is highly recommended also Refresher training is highly recommended also

Requirements Regulations require that only one trained company official needs to witness the behavior to “make the call” Regulations require that only one trained company official needs to witness the behavior to “make the call” The referral must be based on specific, contemporaneous, observations concerning the appearance, behavior, speech or body odor of the covered employee The referral must be based on specific, contemporaneous, observations concerning the appearance, behavior, speech or body odor of the covered employee

Prohibited Behavior Safety sensitive employees are prohibited from consuming alcohol four hours prior to performing a safety sensitive function Safety sensitive employees are prohibited from consuming alcohol four hours prior to performing a safety sensitive function Safety sensitive employees are prohibited from using drugs at all times while employed Safety sensitive employees are prohibited from using drugs at all times while employed

Recognizing Signs and Symptoms Clean, Sober and Safe identifies the five prohibited drugs and the associated signs and symptoms Clean, Sober and Safe identifies the five prohibited drugs and the associated signs and symptoms Let’s take a look Let’s take a look

Making the Call to Test

Criteria for Making Testing Referral Consider only objective facts; your personal opinions do not count Consider only objective facts; your personal opinions do not count Apply the “reasonable and prudent rule.” Ask yourself; “Would another similarly-trained supervisor having observed the same indicators come to the same conclusion? Would it be irresponsible of me not to order the test and allow the employee to perform safety/sensitive work?” Apply the “reasonable and prudent rule.” Ask yourself; “Would another similarly-trained supervisor having observed the same indicators come to the same conclusion? Would it be irresponsible of me not to order the test and allow the employee to perform safety/sensitive work?”

Criteria for Making Testing Referral (Cont’d) Consider employee fitness for duty. In his/her present condition, could the employee present a safety risk to himself/herself or others by continuing to perform safety-sensitive work? Consider employee fitness for duty. In his/her present condition, could the employee present a safety risk to himself/herself or others by continuing to perform safety-sensitive work?

How to “Make the Call” Remove employee from safety/sensitive duties Remove employee from safety/sensitive duties Isolate employee and conduct interview/evaluation in a private setting Isolate employee and conduct interview/evaluation in a private setting Be confident, diplomatic, polite, and mindful of the privacy and dignity of the employee. Be confident, diplomatic, polite, and mindful of the privacy and dignity of the employee.

How to “Make the Call” (Cont’d) Be objective - your personal opinions are not the issue Be objective - your personal opinions are not the issue Inquire, not accuse Inquire, not accuse Use tone of voice and body language that does not make the employee defensive. Use tone of voice and body language that does not make the employee defensive.

How to “Make the Call” (Cont’d) Observe and document unusual behavior, appearance, or odor Observe and document unusual behavior, appearance, or odor Give employee opportunity to explain behavior or event from his/her perspective and respond with respect (avoid or limit “you” statements) Give employee opportunity to explain behavior or event from his/her perspective and respond with respect (avoid or limit “you” statements) Expect denial, do not lose focus Expect denial, do not lose focus Consider medical condition Consider medical condition

How to “Make the Call” (Cont’d) Make reasonable suspicion determination to test or not to test Make reasonable suspicion determination to test or not to test If employee refuses, explain the consequences of refusal to comply If employee refuses, explain the consequences of refusal to comply Escort employee to collection site and arrange to have him/her transported to home (under employer authority). Escort employee to collection site and arrange to have him/her transported to home (under employer authority).

What the Supervisor Must Not Do Do NOT confront employee in front of co-workers Do NOT confront employee in front of co-workers Do NOT accuse employee of illegal drug use or alcohol misuse Do NOT accuse employee of illegal drug use or alcohol misuse Do NOT diagnose abuse or addiction Do NOT diagnose abuse or addiction Do NOT identify the specific drug associated with the behavior or appearance. Do NOT identify the specific drug associated with the behavior or appearance.

Documentation of Testing Referral Required under FTA rule Section (c) (iii) Required under FTA rule Section (c) (iii) Must be maintained for a minimum of two (2) years Must be maintained for a minimum of two (2) years Document delay (after 2 hours) or inability to test (after 8 hours) for alcohol Document delay (after 2 hours) or inability to test (after 8 hours) for alcohol See sample “Reasonable Suspicion Testing Referral Form”. See sample “Reasonable Suspicion Testing Referral Form”.

Sample

Testing Scenario and Role Play Exercise

Scenario During lunch break you enter your company’s restroom. As you approach the door, you hear muffled laughter and coughing. As soon as you enter the door, the laughter abruptly stops and you hear a sudden flurry of activity. There are three safety/sensitive employees in the restroom standing by the window – Karen, Dee, and Janet

Scenario Continued There is no noticeable smoke in the restroom, but you smell the faint odor of marijuana. As soon as you walk in, you see Janet stuff what appears to be a small pipe in the back pocket of her pants. All three of them refuse to make eye contact with you when you say hi. They belatedly mumble hi. You notice that Karen and Dee’s eyes looked glazed and slightly red

Scenario Questions As a trained supervisor, what is your responsibility in this situation? As a trained supervisor, what is your responsibility in this situation? Is a reasonable suspicion referral necessary for any or all of the three employees in this situation? If yes, on what grounds? Is a reasonable suspicion referral necessary for any or all of the three employees in this situation? If yes, on what grounds?

Empowerment

Potential Excuses Difficult to detect substantial proof of impairment Concern about union involvement or possible discrimination lawsuit For supervisors who rose through the ranks, the employee may sometimes be an “old buddy”

More Excuses Testing is time-consuming and requires other employees for transporting Testing is time-consuming and requires other employees for transporting A suspected employee is often a good worker with high seniority A suspected employee is often a good worker with high seniority Lack of support from upper level management Lack of support from upper level management Inadequate supervisor training. Inadequate supervisor training.

Encouraging Factors for Supervisors Your employer expects supervisor intervention; your policy spells it out Your employer expects supervisor intervention; your policy spells it out Supervisor could be held personally liable if someone was hurt Supervisor could be held personally liable if someone was hurt Employee’s performance is not dependable Employee’s performance is not dependable Desire to see employee get help Desire to see employee get help

Encouraging Factors for Supervisors (Cont’d) Employees who abuse drugs or misuse alcohol have a bad effect on co-workers Employees who abuse drugs or misuse alcohol have a bad effect on co-workers Such employees often require a lot of supervision Such employees often require a lot of supervision Helping the employee get professional assistance also helps the employee’s family. Helping the employee get professional assistance also helps the employee’s family.

Supervisor Role and Liability Concerns More and more civil and even criminal courts are holding the front line supervisor and the employer itself responsible for the actions of employees who may be impaired due to substance abuse or alcohol misuse. More and more civil and even criminal courts are holding the front line supervisor and the employer itself responsible for the actions of employees who may be impaired due to substance abuse or alcohol misuse.

Empowerment Training is not effective if supervisors are not empowered to “make the call to test” Training is not effective if supervisors are not empowered to “make the call to test” Management needs to foster a “safety culture” Management needs to foster a “safety culture” Emphasis should be on “fitness for duty” Emphasis should be on “fitness for duty” Remove the accusatory stigma that is attached with reasonable suspicion testing Remove the accusatory stigma that is attached with reasonable suspicion testing Increase awareness of other possible factors that can lead to impairment (e.g. Rx and OTC meds) Increase awareness of other possible factors that can lead to impairment (e.g. Rx and OTC meds)

How to Empower Management must support supervisors Management must support supervisors Follow through with testing when supervisor has brought the matter to mgmt.’s attention Follow through with testing when supervisor has brought the matter to mgmt.’s attention Support supervisor’s decision to test-regardless of the results Support supervisor’s decision to test-regardless of the results Implement policy consistently!! Implement policy consistently!! Conduct refresher training annually Conduct refresher training annually Frequently remind supervisors of the importance of their role in protecting the safety of the traveling public and fellow employees Frequently remind supervisors of the importance of their role in protecting the safety of the traveling public and fellow employees

Making Post Accident Decisions

Responsibilities Road supervisors are often charged with determining when an accident meets the threshold for conducting FTA required post accident drug and alcohol testing. They: Road supervisors are often charged with determining when an accident meets the threshold for conducting FTA required post accident drug and alcohol testing. They: are often the first company official on the scene are often the first company official on the scene should be well versed in post accident testing criteria should be well versed in post accident testing criteria should be authorized to consider all safety- sensitive employees who may have contributed to an accident should be authorized to consider all safety- sensitive employees who may have contributed to an accident

FTA Post Accident Criteria Fatality of any party involved: TEST Fatality of any party involved: TEST If any party immediately receives medical treatment away from the scene: TEST* If any party immediately receives medical treatment away from the scene: TEST* If one or more vehicles is required to be towed away from the scene: TEST* If one or more vehicles is required to be towed away from the scene: TEST* *Unless employee’s actions can be completely discounted *Unless employee’s actions can be completely discounted Please see form provided

Making the Decision to Test Use the best information available to you at the time Use the best information available to you at the time Use a Post Accident Decision and Documentation Form Use a Post Accident Decision and Documentation Form Use only FTA established criteria (DO NOT use a “better safe than sorry mantra”) Use only FTA established criteria (DO NOT use a “better safe than sorry mantra”) Consider all safety-sensitive employees (such as mechanics) Consider all safety-sensitive employees (such as mechanics)

Executing Decision to Test First: ensure that any injured employee receives prompt medical attention First: ensure that any injured employee receives prompt medical attention Inform employee of requirement to test (if employee does not remain readily available it’s a refusal to test ) Inform employee of requirement to test (if employee does not remain readily available it’s a refusal to test ) Allow law enforcement to complete investigation Allow law enforcement to complete investigation Transport employee to testing facility or arrange for on-site urine collector and breath alcohol technician Transport employee to testing facility or arrange for on-site urine collector and breath alcohol technician

Testing Windows Both drug AND alcohol testing must always be conducted when criteria is met Both drug AND alcohol testing must always be conducted when criteria is met Make every attempt to conduct tests within 2 hours of event Make every attempt to conduct tests within 2 hours of event Document cause of delay if tests are not conducted within 2 hours of event Document cause of delay if tests are not conducted within 2 hours of event Cease attempts to conduct alcohol test after 8 hours- document cause Cease attempts to conduct alcohol test after 8 hours- document cause Cease attempts to conduct drug test after 32 hours- document cause Cease attempts to conduct drug test after 32 hours- document cause

Refusal to Test Employees must remain readily available for testing- refusing to do so may be deemed a refusal to test Employees must remain readily available for testing- refusing to do so may be deemed a refusal to test Other actions that constitute refusal: Other actions that constitute refusal: Failure to cooperate with any part of the testing process (including being medically evaluated or submitting to an additional test or being monitored or directly observed during testing) Failure to cooperate with any part of the testing process (including being medically evaluated or submitting to an additional test or being monitored or directly observed during testing) Attempting to adulterate or substitute a specimen or wearing a prosthetic device Attempting to adulterate or substitute a specimen or wearing a prosthetic device

Removal from Duty Under Employer Policy Some employers have made it their policy to remove employees from safety-sensitive duty until the results of the urine drug test are received Some employers have made it their policy to remove employees from safety-sensitive duty until the results of the urine drug test are received Can only be done under agency authority (not authorized by FTA or DOT) Can only be done under agency authority (not authorized by FTA or DOT) Must be part of employer policy Must be part of employer policy

Any Questions?