1. FTA & FMCSA FTA D&A NATIONAL CONFERENCE SACRAMENTO 2016 IYON ROSARIO & JUAN MOYA

3. COMPARING THE REGULATIONS, PRACTICES AND INDUSTRIES FTA FMCSA

4. GUIDING REGULATIONS FTAFMCSA 49 CFR Part 4049 CFR Part 65549 CFR Part 382

5. WHO IS COVERED? FTA Recipients of FTA funding under 5307, 5309 and 5311: covered Recipients of FTA funding under 5310: not covered (unless they receive other funds from a covered entity to provide safety-sensitive services) Regulation is of the employers only FMCSA “Every person and all employers of such persons” Includes fed, state, local government employers The testing rules cover drivers only Who hold a Commercial Driver’s License under 383 Actually drive, or are intended to drive, a Commercial Motor Vehicle on public roads 5

6. PROHIBITED DRUGS FTA Prohibited drugs Marijuana* Cocaine Amphetamines Opiates PCP FMCSA Prohibited drugs Marijuana* Cocaine Amphetamines Opiates PCP 6 *No Policy Changes at Federal Level

7. SAFETY-SENSITIVE FUNCTIONS FTA Operators, Dispatchers, Mechanics, CDL/Non- Revenue, Armed Security, Supervisors if may perform SS Includes trainees when driving, even if not in revenue service Volunteers if required to have a CDL or if receive remuneration in excess of actual expenses FMCSA CDL drivers operating CMVs on public roads when they are: Driving or required to be ready to drive Waiting to be dispatched Inspecting, repairing, securing assistance, loading or unloading the CMV Covers mechanics, dispatchers, etc. if they may be required to drive a CMV at any time 7

8. POLICY PROVISIONS: LARGE OVERLAP FTA Develop policy statement Disseminate policy or notice of availability to employees No explicit requirement for notice to employee organizations Adopted by local governing board No requirement for certification of receipt FMCSA SAME Provide educational material explaining policy and procedures to each CDL driver Written notice to employee organizations No adoption requirement Certification of receipt required 8

9. FTA Person, office, or position for questions Safety-sensitive categories Prohibited behavior Testing circumstances Testing procedures FMCSA Person who answers questions Categories of drivers subject to regs Covered safety-sensitive duties Prohibited behavior Testing circumstances Testing procedures 9 POLICY PROVISIONS: LARGE OVERLAP

10. FTA Requirement to submit to testing Refusal behaviors Consequences of positive/refused test including immediate removal Consequences of BAC 0.02 to 0.039 FMCSA SAME 10 POLICY PROVISIONS: LARGE OVERLAP

11. FTA Additional employer provisions FMCSA Effects of alcohol & drugs, signs and symptoms, methods of intervention, referral to EAP and/or management Additional employer provisions 11 POLICY PROVISIONS: LARGE OVERLAP

12. SPECIAL CASE: EMPLOYEES OF MULTI-MODAL EMPLOYERS Pre-employment Test: Only 1 Random Rate: Now easy to implement! (Rule: Mode regulating 50%+ of employee’s time) Modal Reg During Duty: Determines PA and RS test authority 12

13. Random Testing: Most Policy Provisions Similar FTA Random testing rate 25% drugs 10% alcohol Selection via scientifically valid method Unannounced and unpredictable Reasonable spread through calendar year At all times of day FMCSA Random testing rate 25% drugs (1/1/16) 10% alcohol Same No comparable requirement 13

14. CONSEQUENCES FOR FAILED OR REFUSED TESTS Violation Removal from safety-sensitive function SAP referral process Must comply with Part 40 Subpart O Return-to-Duty and Follow-Up Must comply with Part 40 Subpart O 655 reiterates Part 40 requirement for employer to advise employee of readily- available SAP-counseling-treatment program … 382 does not 14

15. POLICY PROVISIONS: AVAILABILITY FOR TESTING FMCSA Same May notify driver on off-duty status of a drug test Testing time counts against Hours of Service FTA Drug random testing anytime an employee is on duty Alcohol random testing only just before, during, just after performance May negotiate arrangements for employees who must leave at end of shift 15

16. POLICY PROVISIONS: REFUSAL TO SUBMIT FTA Description of behaviors constituting a refusal to test Statement such refusals constitute a violation of employer’s policy Part 655 does not list refusal behaviors FMCSA Explanation of what constitutes a refusal to test The attendant consequences Part 382 lists drug but not alcohol refusal behaviors 16

17. POLICY PROVISIONS: TESTING AFTER NOTIFICATION FTA If not performing safety- sensitive function, proceed immediately If performing safety- sensitive function, cease performing and proceed immediately FMCSA If driving, proceed immediately to the collection site, then cease performing safety-sensitive duty If performing any safety- sensitive function other than driving, cease performing and proceed as soon as possible 17

18. CRITICAL COMPARISON: COVERAGE FTA Regulation is applicable to employer Employer requires compliance from safety-sensitive employee FMCSA Regulation of employer Regulation of safety- sensitive employee Owner-operators must comply with employer and employee provisions 18

19. EXEMPTIONS FTA Contract maintenance for systems in areas of less than 200,000 Taxi operators if transit patrons are free to choose from 2+ taxi providers Recipients of 5310 funds Volunteers if no CDL or remuneration above expenses FMCSA Persons required to comply with Part 655, per 382.103(d)(1) Persons waived from CDL requirements by the licensing state Military personnel (mandatory) Operators of a farm vehicle (permissive) Firefighters and ambulance drivers (permissive) 19

20. CRITICAL COMPARISON: PRE-EMPLOYMENT FTA Employees working for two covered entities must take two pre- employment tests (and must be in both random testing pools) FMCSA Employers may use employees w/o pre- employment test if employees have been in a random testing program for a year and have not had a drug/alcohol violation Generally will take 2nd pre-employment test 20

21. PRE-EMPLOYMENT D&A TEST HISTORY COMMON CONFUSION FTA Review DOT testing history from prior employers an applicant worked for in last 2 years 49 CFR Section 40.25 Alcohol tests of >=0.04 Verified positive drug tests Refusals Other violations of DOT agency drug/alcohol regs Documentation of successful completion of SAP-required RTD/follow- up process FMCSA 3 year review of history for interstate drivers 49 CFR Section 391.23 Investigations & Inquiries 3-yr state driving records 3-yr safety performance from all employers 3-yr alcohol and controlled substance violations from all employers Same information as Part 40 requirements 2-year requirements for intra-state drivers (Section 40.25) 21

22. EMPLOYEES REMOVED FROM RANDOM POOL FMCSA Pre-employment test if employee is out of pool for more than 30 days FTA Pre-employment test if employee has not performed a safety- sensitive duty AND is out of pool for more than 90 consecutive calendar days 22

23. POST-ACCIDENT TESTING: DECISION MAKER IS KEY FTA Fatality – REQUIRED Non-Fatal: medical attention away from scene vehicle w/disabling damage TEST REQUIRED UNLESS: Employee’s performance can be completely discounted as contributing FMCSA Fatality – REQUIRED Non-Fatal: medical attention away from scene vehicle w/disabling damage TEST REQUIRED IF: Operator receives moving traffic citation 23

24. FTA

25. FMCSA

26. POST-ACCIDENT: TIME REQUIREMENT FTA As soon as practicable after SS employee dismissed from scene and medical attention provided Testing delayed until decision is made Alcohol 2/8 hour rule Drugs 32 hour rule FMCSA As soon as practicable following an occurrence, operator dismissed and medical attention provided AND Citation issued If 8 hours elapse (e.g. the citation is not promptly issued), no alcohol testing If 32 hours elapse, no drug testing 26

27. REASONABLE SUSPICION FTA For both drugs and alcohol, decision made ONLY on specific, contemporaneous, articulable observations concerning appearance, behavior, speech or body odors No required written report (everybody does) FMCSA Decision to test is for the same reasons Observations may include indications of chronic effects and withdrawal effects for drugs, not alcohol Written report w/in 24 hours of observed behavior or before results of test are released if earlier than 24 hrs 27

28. RETENTION OF TRAINING RECORDS FTA Records relating to supervisor and employee training Retain for at least two years Note: for an easy-to-use table of record-retention requirements for all DOT modes, see ODAPC’s Employer Guidelines FMCSA Records relating to education and training of BATs, STTs, supervisors and drivers Retain for two years after the person ceases performing these functions 28

29. ALCOHOL PROHIBITIONS FTA No performing covered activity if BAC 0.04 or greater No drinking 4 hrs before SS duties No drinking while on-call 8 hour off-duty after BAC between 0.02 and 0.039, or until <0.02 FMCSA SAME No corresponding on-call requirement 24-hour mandatory off- duty after BAC between 0.02 and 0.039 29

30. PRESCRIPTION MEDICATIONS FTA FTA advisory info and substantial technical assistance is provided No regulatory requirements FTA Prescription and Over-the-Counter Medications Toolkit well- regarded by MROs FMCSA Drivers can not operate unless advised by licensed medical practitioner that Rx/OTC prescription will not impact ability to safely operate 382.213(a) Employers may require drivers to inform the employer of any therapeutic drug use 382.213(c) – Include in policy 30

31. ENFORCEMENT & COMPLIANCE FTA Suspension or ineligibility for federal funding Annual certification of compliance (in Master Agreement) State DOTs certify compliance of sub- recipients FMCSA Fines and penalties on employer and/or employee Possibility of an Out of Service order No requirement to self-certify compliance except “New Entrant” companies 31

32. Another Issue: Exemptions From FMCSA §391 Medical Qualifications FMCSA §391 applies to interstate ops States establish medical qualifications for intrastate drivers (this covers most transit drivers) Applies to pre-employment records reviews (and possibly require periodic testing) Know your state’s adoption of FMCSA §391 Medical Qualifications 32

33. Thank you 33