1. 11 th Annual FTA Drug & Alcohol National Conference Sacramento, CA March 2016

2. Today’s Objectives Challenges facing small agencies. Compliance Regulations Best Practices (BP) Possible Solutions for your agency Brainstorming your challenges

3. Department of Transportation 49 CFR Part 40 Procedures for Transportation Workplace Drug and Alcohol Testing Programs FMCSA 49 CFR Part 382 FAA 14 CFR Part 120 FRA 49 CFR Part 219 Pipeline 49 CFR Part 199 FTA 49 CFR Part 655 Federal Regulations That Apply To You

4. Most Useful Resources For Compliance Pertinent website links for your computer access. 49 CFR Part 40- https://www.transportation.gov/odapc/part40https://www.transportation.gov/odapc/part40 49 CFR Part 655- http://transit- safety.volpe.dot.gov/DrugAndAlcohol/Regulations/Regulations/49CFR655/49cfr655.pdf http://transit- safety.volpe.dot.gov/DrugAndAlcohol/Regulations/Regulations/49CFR655/49cfr655.pdf Regulation Updates- http://transit- safety.volpe.dot.gov/DrugAndAlcohol/Newsletters/Topics.aspxhttp://transit- safety.volpe.dot.gov/DrugAndAlcohol/Newsletters/Topics.aspx What Employers Need to Know- http://transit- safety.volpe.dot.gov/publications/substance/whatemployersneedtoknow/2015_06 /ODAPC_Employer_Guidelines_June_1_2015_0.pdfhttp://transit- safety.volpe.dot.gov/publications/substance/whatemployersneedtoknow/2015_06 /ODAPC_Employer_Guidelines_June_1_2015_0.pdf

5. Most Useful Resources For Compliance cont. Pertinent website links for your computer access. Urine Specimen Guidelines- https://www.transportation.gov/odapc/urine- specimen-collection-guidelineshttps://www.transportation.gov/odapc/urine- specimen-collection-guidelines National Highway Traffic Safety Administration (NHTSA) Conforming Products List (CPL) - https://www.gpo.gov/fdsys/pkg/FR-2012-06-14/pdf/2012-14582.pdfhttps://www.gpo.gov/fdsys/pkg/FR-2012-06-14/pdf/2012-14582.pdf FTA Tools and Resources - http://transit- safety.fta.dot.gov/DrugAndAlcohol/Tools/http://transit- safety.fta.dot.gov/DrugAndAlcohol/Tools/

6. FTA Policy Compliance 655.15 Policy Requirement Checklist- http://www.fta.dot.gov/TSO/about_FTA_16052.html http://www.fta.dot.gov/TSO/about_FTA_16052.html Designated Contact Identified and Board Adoption Covered Employees (Positions at your company) Prohibited Substances Prohibited Behavior Testing Events (Pre-employment, Random, Post Accident, Return to Duty and Follow-up) Procedures in accordance to 49 CFR Part 40 Test Refusal

7. FTA Policy Compliance 655.15 cont. Consequences Positive Drug or Alcohol (>0.04) Result or Refusal BAC 0.02 -0.039 Dilute Negative Policy Additional Employer Provisions Policy must delineate between FTA and company prohibitions May incorporate the Drug Free Workplace Act of 1988 but must be identified

8. FTA Policy Compliance 655.15 cont. FTA Policy Model- https://transit- safety.fta.dot.gov/DrugAndAlcohol/Tools/PolicyBuilder/Create Policy.aspxhttps://transit- safety.fta.dot.gov/DrugAndAlcohol/Tools/PolicyBuilder/Create Policy.aspx Written notice or posting of the availability of employer’s drug and alcohol policy and revisions. 655.16

9. Who is safety sensitive? Duties/job description Operating a revenue service vehicle, including when not in revenue service Controlling dispatch or movement of a revenue service vehicle Operating a nonrevenue service vehicle, when required to be operated by a holder of a Commercial Driver’s License Carrying a firearm for security purposes Maintaining (including repairs, overhaul and rebuilding) a revenue service vehicle or equipment used in revenue service. 5311 contracted mechanics (exemption) 50% rule DOT coverage (How reported on MIS report)  Staff Members – Remember, only if the staff member is called upon at any time to perform safety sensitive duties  Volunteers – Only if receiving remuneration or driving a vehicle that requires a CDL

10. Written Standard Operating Procedures (BP) Step by step procedures for each testing Events (BP) FTA sample forms and checklists and protocols for the DER/DAPM’s http://transit-safety.fta.dot.gov/DrugAndAlcohol/Tools Other staff protocols related to the program (Human Resources, Employment Agency, Safety Manager, etc.) Guidelines for your Back-up person (i.e. Change of personnel, vacation sick leave) Contacts within the system (safety, management, maintenance) Who influences the program?

11. Written Standard Operating Procedures (BP) cont. Contacts outside the transit agency Service Vendors (Collection site, TPA, Police Department, Hospital, etc.) Confidential Record Protocols – Are you getting your copies for review? Are you receiving them in a confidential manner? It is your responsibility to ensure that the correct test is performed.

12. DAPM and/or DER Often the same person! Drug and Alcohol Program Manager ( DAPM) Is responsible for administering the program. The DAPM responsibilities are often assigned to an existing employee with other related duties in human resources, personnel, or risk management. Often the DAPM is responsible for record keeping, preparation of the annual Management Information System (MIS) report, administering and scheduling the random testing process, and serving as the Designated Employer Representative (DER), or liaison with the drug and alcohol testing service agents. Designated Employer Representative (DER) The DER is "An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs."

13. Service Vendor Challenges Consortium/Third Party Administrators (C/TPA) Does the C/TPA provide the Collection Site? C/TPA should verify the qualifications of the collectors and evaluate the integrity of the collection sites? If not…its your job. Will the C/TPA act as an intermediary in resolving collection site issues? Provide Educational materials Is it applicable to FTA Chain of Custody Form (DOT and non DOT ) Employer document type of test and testing authority (FTA) prior to sending donor to collection site.(BP)

14. Service Vendor Challenges cont. C/TPA cont. Random selection list and secure communications Is random list updated prior to new random selection ( 655.45) When and how is your random selection list sent to agency? How quickly does the C/TPA’s MRO provide results after a test? The DER must have a means to confirm the identification of the MRO 40.167 How do you receive your results?

15. Service Vendor Challenges cont. Collection site Knowledge of regulations Compliance issues Which test is performed first, drug or alcohol? Which authority is checked? Explain and follow instructions on the back of the CCF? What are the “Hours of Operation”?

16. Service Vendor Challenges cont. Collection site cont. Are both drug and alcohol collections performed? If only STT alcohol testing is performed Is a confirmatory test available within 30 minutes of “Initial Test”? Other Resources Is a Hospital used for “After Hours Testing”? Who performs Federal collections for other covered local employers (the City, county, truckers, school buses, etc.)?

17. Necessary Donor Information For the collection site

18. Service Vendors ….Possible Solutions Alternative Alcohol Testing sources for DOT alcohol testing services within community. Local Law Enforcement Officers Problems: Must be certified by state or local governments to conduct breath alcohol testing. Not other officers. Not familiar with the DOT testing program, protocols, records keeping or testing circumstances. Do not have Alcohol Testing Forms. The equipment used needs to be on the National Highway Traffic Safety Administration (NHTSA) evidential testing device Conforming Products List (CPL) without an asterisk.

19. Service Vendors Possible Solutions, cont. The Evidential Breath Testing Device Equipment Must: Have the capability to provide printed results in triplicate. Assign a unique number to each test (not a case number). Print the device manufactures' name, serial number and time of the test. Distinguish alcohol from acetone and the 0.02 alcohol concentration level. Provide air blanks and perform external calibration checks. Additional Challenges (Law Enforcement) Should an employer choose to pursue this option, it is imperative the employer and law enforcement agency representative have a candid discussion about the requirements, expectations, documents and limits of the arrangement. Only after all issues have been satisfactorily addressed should this arrangement be pursued.

20. Service Vendors ….Possible Solutions cont. In House Solutions Train staff member as a Screening Test Technician (STT). Contact other DOT agencies in the area who have the same challenge. Share costs and train local person to perform testing for all. Online training available Consider cost of training and products. Must use approved saliva testing products. You may use an Alcohol Screening Device (ASD) that is on the NHTSA conforming products list for DOT alcohol tests only if there are instructions for its use in this part. 40.229 An ASD can be used only for screening tests for alcohol, and may not be used for confirmation tests. An STT can conduct only alcohol screening tests, but a Breath Alcohol Technician (BAT) can conduct alcohol screening and confirmation tests. 40.211

21. Service Vendor Oversite Solutions Monitoring Vendors (BP) Unannounced site visit Collection site audit form available Urine Collection Checklist http://transit-safety.fta.dot.gov/DrugAndAlcohol/Tools/http://transit-safety.fta.dot.gov/DrugAndAlcohol/Tools/ Credentials Keep a credential file (BP) Monitor original and refresher training dates Request the cooperation of your collection site to fax back documentation of the donors arrival time. (BP) Urine Specimen Collection Guidelines http://transit- safety.fta.dot.gov/publications/DocumentInfo.aspx?DocID=123 http://transit- safety.fta.dot.gov/publications/DocumentInfo.aspx?DocID=123

22. Education and Training Challenges Covered employees must receive 60 minutes of training on the effects and consequences of prohibited drug use on personal health, safety, and the work environment, and on the signs and symptoms that may indicate prohibited drug use. 655.14 Although Alcohol education is not mandated it is highly recommended. (BP) Training should occur as soon as possible. Before performance of safety sensitive duties (BP) Supervisors and/or other company officials authorized by the employer to make reasonable suspicion determinations shall receive 60 minutes of training on the physical, behavioral, and performance indicators of probable drug use and 60 minutes of training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse. 655.14 Training must be completed before the supervisor or staff member can make a reasonable suspicion determination. Training discussing the agencies internal reasonable suspicion protocol should be discussed in addition to the two hours of required training. (BP)

23. Additional Training Train supervisors on Post Accident instructions before performance of job duties that could require the supervisor to report to the scene of an accident. Available training: CUTR website for training requirements (BP) REACT- Part 2: Post Accident Testing Determination Training for Supervisors Define federal policy authority from local testing authority. (BP) Prescription and over the counter requirements (BP) FTA Prescription and Over-The-Counter Medication Toolkit http://www.fta.dot.gov/documents/Final_Rx-OTC_Report.pdf http://www.fta.dot.gov/documents/Final_Rx-OTC_Report.pdf Display and distribute information regarding prohibited drug and alcohol use and educational materials that explain the requirements 655.14 Toll free telephone number for employee assistance. 655.14 The name and contact information of persons assigned to answer questions about the program. 655.15

24. Pre-Employment Challenges Negative drug result must be received by the agency prior to the employees’ performance of a safety sensitive function. 655.41 Obtain written release for prior drug and alcohol records from applicants for safety-sensitive positions. Required from previous DOT covered employers. Request the information from all listed covered employers who have employed the individual within the past two years. 40.25 Ask the applicant whether they have ever been denied a position on the basis of a positive (or refusal) pre-employment drug or alcohol test result? 40.25 Sample forms found on FTA website http://transit-safety.fta.dot.gov/DrugAndAlcohol/Tools/http://transit-safety.fta.dot.gov/DrugAndAlcohol/Tools/ Forms should be part of SOP’s (BP)

27. Random Testing Challenges Each employer shall ensure that random drug and alcohol tests 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. 655.45 Employees cannot have advanced notice. 655.45 If the DER performs safety sensitive duties and is selected for a random test how are they notified? What is the protocol? 655.45 Use a spread sheet or a graph similar to those on the following slides to track of your random testing. (BP)

30. Post Accident Testing Challenges Testing thresholds 655.44 Fatality – Drug and Alcohol Testing Mandatory Disabling Damage to any vehicle involved in the accident, requiring the vehicle to be towed away from the scene  Unless the covered employee is eliminated as a contributing factor to the accident. Remember the “best information at the time” rule Any individual suffered a bodily injury and immediately received medical treatment away from the scene of the accident  Unless the covered employee is eliminated as a contributing factor to the accident. Remember the “best information at the time” rule The employer shall also drug and alcohol test any other covered employee whose performance could have contributed to the accident, as determined by the employer.

31. Post Accident Testing Challenges cont. Post Accident Testing Documentation Alcohol Testing: Must be performed as soon as possible but no later than eight hours following the accident; If not done within 2 hours, document, why? If alcohol test cannot be performed within eight hours, the employer must cease all attempts and document the reason. Drug Testing: Must be performed as soon as possible but no more than 32 hours after the accident; the employer must cease all attempts if 32 hours have passed and document the reason why the test was not performed.

33. Post Accident Testing Solutions Develop a Post-Accident Kit for all supervisors who may respond to an accident/incident. (BP) Decision Making Forms CCF (DOT and Non DOT) Contact names and numbers Company procedures Post accident documentation form Any other forms (insurance, etc.)  Train (and refresh) supervisors on accident response

34. Reasonable Suspicion Challenges Only those who have been trained can make a Reasonable Suspicion Determination. 655.14 Document confidential interview. FTA Reasonable Suspicion Video – https://transit- safety.volpe.dot.gov/DrugAndAlcohol/Tools/ReasonableSuspicion.aspxhttps://transit- safety.volpe.dot.gov/DrugAndAlcohol/Tools/ReasonableSuspicion.aspx

36. Medical/Recreational Marijuana Challenges Medical Marijuana or Recreational Marijuana is prohibited DOT Office of Drug and Alcohol Policy and Compliance Notice - https://www.transportation.gov/sites/dot.gov/files/docs/odapc -notice-recreational-mj.pdf https://www.transportation.gov/sites/dot.gov/files/docs/odapc -notice-recreational-mj.pdf

37. Substance Abuse Professional Challenges Provide the name of a qualified SAP to all covered employees. The SAP should be suitable to you and must be readily available to the employee. A referral is required whether the employee is discharged or given a second chance. Make sure your SAP meets all of the DOT’s Part 40 qualification requirements. This includes checking for credentials, training, and examination. SAP referral also applies to applicants who fail or refuse to take the pre-employment tests. Possible resource: SAPlist.com

38. Record Keeping Requirements Drug and Alcohol records must be kept in a secure location with controlled access DOT files must be kept separate from personnel records to protect confidentiality Employers are required to keep the following documents: 655.71 Policy including subsequent revisions 655.16 Employee and supervisor training records Drug and alcohol testing results Pre-employment drug and alcohol testing background check Documentation on decision to test All random selection documentation Annual DAMIS reports Other documents to keep in file: (BP) Employee acknowledgment of receipt of policy Semi annual laboratory statistical summaries  Maintain testing documentation for the tenure of their employment. (BP)

39. Keep in secured location Confidential Keep in secured location 2016- Filing Option for Small Agencies

40. All Testing Events Testing Spreadsheet Notice to Report to the Collection Site

41. Employer Copy of the Custody and Control Form MRO final Determination- Test Result Previous Employer Response Applicant Acknowledgment

42. Computer Generated Random List Employer Copy of the Custody and Control Form MRO Final Determination Drug Test Result Employer Copy of the Alcohol Testing Form (if applicable)

43. Testing Decision Making and Timing Documentation Employer Copy of the Custody and Control Form MRO Final Determination Drug Test Result Employer Copy of the Alcohol Testing Form

44. Reasonable Suspicion Documentation Employer Copy of the Custody and Control Form MRO Final Determination Drug Test Result Employer Copy of Alcohol Testing Form For Second Chance Policy Program SAP Recommendations Employer Copy of the Custody and Control Form Negative Drug and/or Alcohol Test Results

46. Collector Credentials BAT Credentials MRO Credential SAP Credentials

48. Sample of Employer Copy of the CCF Collection Site Audit Form Transit Agency’s Custody and Control Form