1. 4th Annual FTA Drug and Alcohol Program National Conference Nashville, Tennessee April 7 – 9, 2009

2. ELEMENTS OF AN FTA-COMPLIANT SUBSTANCE ABUSE POLICY Presented by: Leila Procopio-Makuh, C- SAPA

3. Acronyms & Abbreviations ATF - Alcohol Testing Form BAT - Breath Alcohol Technician CCF- Custody and Control Form C/TPA - Consortium/Third Party Administrator DAPM - Drug and Alcohol Program Manager DER - Designated Employer Representative

4. Acronyms & Abbreviations (cont’d.) DOT- Department of Transportation EBT-Evidential Breath Tester FTA - Federal Transit Administration FMCSA -Federal Motor Carrier Safety Admin. HHS - Health and Human Services MOPAC -Marijuana, Opiates, PCP, Amphetamines, Cocaine MRO - Medical Review Officer NHTSA - National Highway Traffic Safety Administration

5. Acronyms & Abbreviations (cont’d.) NTSB - National Transportation Safety Board ODAPC - Office of Drug and Alcohol Policy and Compliance SAP - Substance Abuse Professional STT - Screening Test Technician SVT - Specimen Validity Testing

6. Federal D&A Testing Authorities for Public Transit Employers US Department of Transportation (DOT) 49 CFR Part 40 (Procedures for Transportation Workplace Drug and Alcohol Testing Programs) Federal Transit Administration (FTA) 49 CFR Part 655 (Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations)

7. FTA 49 CFR Part 655 Answers the questions: 1)Why is testing required? 2)Who is subject to testing? 3)When is testing authorized? 4)What are the consequences for non- compliance? 5)What are the training requirements?

8. DOT 49 CFR Part 40 Answers the questions: 1.What substances to test for? 2.How is testing conducted? 3.What are the return-to-duty requirements following a violation? 4.What are the qualification requirements and responsibilities of the service agents? 5.What are the record keeping and reporting requirements?

9. FTA Drug and Alcohol Program Requirements (Sec. 655.12) 1.Employer policy on prohibited drugs and alcohol misuse in the workplace that includes the elements specified in Sec. 655.15. Policy must be signed and dated 2.Education and training program for all covered employees and supervisors or company officials.

10. FTA Drug and Alcohol Program Requirements (cont’d.) 3.A testing program that meets the requirements of Part 40 4.Procedures for a SAP referral for any employee (or applicant) who has a verified drug test result, a confirmed alcohol test result of 0.04 BAC or above, or has refused to submit to a required drug or alcohol test.

11. FTA Minimum Policy Requirements (Sec. 655.15) 1.Identity of the contact person, office, or branch to answer questions about the D&A policy and program 2.Categories of safety-sensitive employees 3.Specific information concerning the behavior and conduct prohibited by Part 655 4.Testing circumstances

12. FTA Minimum Policy Requirements (cont’d.) 5.Testing procedures 6.Requirement that all covered employees submit to drug and alcohol testing required by Part 655 7.Behaviors that constitute test refusal 8.Consequences for positive drug or alcohol test results or test refusal

13. FTA Minimum Policy Requirements (cont’d.) 9.Consequences for an employee with an alcohol test result of 0.02 BAC or more but less than 0.04 10.Employer’s action concerning negative-dilute test results.

14. Additional Employer Requirements Employers can implement additional requirements as long as they are not inconsistent with, contrary to, or frustrate the provisions of Part 655 Must be clearly identified as employer requirements, as opposed to Part 40 or Part 655 requirements Non-DOT/FTA tests must be conducted on non-Federal CCFs or non-DOT ATFs using specimen from a separate void Must keep DOT records separated from company-authority test records.

15. Examples of Additional Employer Requirements Including testing for non safety-sensitive employees Testing for additional drugs beyond the “Big 5” (MOPAC) Post-accident testing beyond the FTA criteria Drug-Free Workplace Act provisions Prescription and OTC medications provisions

16. Recommended Policy Elements Definitions Description of education and training program Circumstances that result in directly- observed collections Requirements and limitations concerning split specimen testing.

17. Optional Policy Elements Pre-employment alcohol testing Retest after negative-dilute with higher creatinine level ( 5 – 20 mg/dL) Higher random testing rates Observed collections for all return-to- duty and follow-up tests Requirement for employee to pay for SAP services, return-to-duty and follow- up tests.

18. Policy Dissemination Employers must provide written notice of the policy to all covered employees and representatives of labor unions Should obtain acknowledgement or confirmation of employee receipt of policy.

19. Categories of Safety-Sensitive Functions 1.Operation of a revenue service vehicle even when not in revenue service 2.Operation of a non-revenue service vehicle that is required to be operated by a CDL holder 3.Maintenance of revenue service vehicle or equipment used in revenue service

20. Categories of Safety-Sensitive Functions (cont’d.) 4.Controlling movement or dispatch of a revenue service vehicle 5.Providing security by personnel that carry firearms.

21. Prohibited Behaviors - Drugs All 5 drugs in the DOT panel (MOPAC) are illegal; therefore, they are prohibited at all times Off-duty use may result in an on-duty positive Employees may be tested for illegal drugs anytime they are on duty or subject to duty.

22. Prohibited Behaviors – Alcohol NO alcohol consumption: - Within 4 hours of performing S/S functions; - While on-duty or on call; or - Within 8 hours following a vehicle accident that requires testing, or until the employee undergoes the tests.

23. Prohibited Behaviors – Alcohol (cont’d.) No covered employee with an alcohol test result of 0.02 – 0.039 BAC can perform any S/S work until the employee’s alcohol concentration measures less than 0.02 in a retest, or the start of the employee’s next regularly-scheduled work day, if at least 8 hours from the test.

24. Testing Circumstances 1.Pre-employment (Sec.655.41 and 655.42) 2.Reasonable Suspicion (Sec. 655.43) 3.Post-Accident (Sec. 655.44) 4.Random (Sec. 655.45) 5.Return-to-Duty (Sec. 655.46) 6.Follow-up (Sec. 655.47; Part 40, subpart O)

25. Pre-employment Testing Requirements Drug testing required; alcohol testing allowed Test all employment candidates for S/S positions and those transferring from non-S/S positions Employer must receive MRO report of verified negative drug test result before allowing employee to perform any S/S work. If first test is canceled, employee must retake and pass the test.

26. Pre-employment Testing Requirements (cont’d.) Employer must conduct pre- employment drug test for any employee who has been out of his/her safety- sensitive function for at least 90 consecutive calendar days (for any reason) and has been out of the random pool during that time.

27. Previous Employer Background Checks With individual’s written consent, employers must request the following D&A testing information about applicants for S/S positions from any DOT-regulated employer during the previous 2 years: - Alcohol test results of 0.04 BAC or higher; - Verified positive drug test results; - Test refusals (including adulteration or substitution; and - Other violations of DOT D&A testing rules.

28. Previous Employer Background Checks (cont’d.) If there’s a record of violation, employer must obtain proof of successful completion of DOT return-to-duty process before allowing the individual to perform any S/S work

29. Previous Employer Background Checks (cont’d.) In addition, employer also must ask the individual (preferably in writing) whether or not he/she has tested positive, or has refused a DOT pre-employment drug or alcohol test during the past two years. If answer is YES, employer must not assign individual to S/S work until he/she can show proof of successful completion of the DOT return-to-duty process.

30. Reasonable Suspicion Testing Required when employer has reasonable suspicion to believe that a covered employee has used a prohibited drug or misused alcohol RS testing is not a diagnostic tool. It is used only to rule out the possibility that the unusual behavior or appearance being observed may be caused by prohibited drug use and/or alcohol misuse

31. Reasonable Suspicion Testing (cont’d.) Shall be based on specific, contemporaneous, articulable observations concerning the employee’s appearance, behavior, speech, or body odors Testing referral must be made by a trained supervisor or company official Employer must document reason for RS testing referral and keep documentation for at least two years.

32. Reasonable Suspicion Testing for Alcohol Authorized only if the observation is made during, just before, or just after the employee’s performance of S/S work If not conducted within 2 hours of decision to test, employer must document reason for the delay If not conducted within 8 hours, cease all attempts to test and document reason for failure to test.

33. Post-Accident Testing Required after an accident involving the operation of a vehicle (bus, electric bus, van, automobile, rail car, trolley car, trolley bus, or vessel).

34. FTA Criteria for Post-Accident Testing When there is a fatality: - Test the surviving employee operating the vehicle at the time of the accident - Test any other S/S employee whose performance could have contributed to the accident Decision on who to test is based on the best information available at the time of the accident.

35. FTA Criteria for Post-Accident Testing (cont’d.) After non-fatal accidents involving: - Bodily injury requiring immediate medical treatment away from the scene, or - Disabling damage to any vehicle involved that requires a tow-away, or - Removal from service if the vehicle is a rail car, trolley car, trolley bus, or vessel.

36. FTA Criteria for Post-Accident Testing (cont’d.) After non-fatal accidents: - Test the driver unless his/her performance can be completely discounted as a contributing factor - Test any other S/S employee whose performance could have contributed to the accident, as determined by the supervisor or manager using the best information available at the time of the accident.

37. Post-Accident Testing Time Requirements Conduct alcohol test within two (2) hours of accident. If delayed, document reason for delay. If unable to test within eight (8) hours, cease all attempts and document reason for inability to test Conduct drug test within 32 hours of the accident.

38. Random Testing Random selection of employees to be tested must be made by a scientifically valid method, e.g., a computer-based number generator matched with a unique identifying number Each S/S employee must have an equal chance of being tested each time a selection is made No discretion by management on who to test and for which substance.

39. Random Testing Requirements Must meet the minimum random testing rates established by the FTA each year. Currently, the minimum rates are 25% for drugs and 10% for alcohol. Employers can exceed minimum requirements Must be unannounced, completely unpredictable, and spread reasonably throughout the calendar year, the testing period, days of the week, and all hours that S/S functions are performed.

40. Random Testing Requirements (cont’d.) Must require employees to report immediately to the test site after notification. An unreasonable delay may be deemed to be a test refusal Random alcohol testing may be performed only during, just before, or just after the employee performs any S/S work Random drug testing may be conducted anytime the employee is on duty.

41. Return-to-Duty Testing Before a covered employee is allowed to return to S/S duty following a policy/rule violation, the employee must: - Complete the SAP-recommended education and/or treatment program; and - Pass a return-to-duty test with a verified negative drug test result or alcohol test result below 0.02 BAC. If return-to-duty test is canceled, employee must retake and pass a second test.

42. Follow-up Testing SAP must decide on the frequency and duration of follow-up testing and submit the testing plan to the employer: - Minimum of 6 tests within the first 12 months - Maximum duration: 60 months or 5 years.

43. Follow-up Testing Requirements Employers must not go below or above the SAP recommendations concerning the frequency and duration of follow-up tests A canceled follow-up test must be recollected Follow-up testing is apart and separate from random testing The follow-up testing plan follows the employee through breaks in service or through subsequent employers.

44. Drug Testing Procedures Detailed discussion of Part 40 procedures is not required. Policy can simply state that drug testing is conducted in accordance with 49 CFR Part 40, and have a copy of detailed Part 40 available to interested parties upon request.

45. Drug Testing Procedures – Best Practices Statement that throughout the testing process the privacy of the employee will be protected and the integrity and validity of the process will be maintained Use of split collection method and a federal Custody and Control Form with unique ID number to ensure that the correct test result is attributed to the correct employee.

46. Drug Testing Procedures – Best Practices (cont’d.) Urinalysis - Initial screen - Confirmatory test using GC/MS Specimen validity testing - Must state employer action concerning negative-dilute test results MRO review and verification

47. Alcohol Testing Procedures As with drug testing procedures, discussion of detailed procedures is optional. Only breath or saliva is allowed for initial testing If initial test reads 0.02 BAC or higher, a confirmatory test using an evidential breath tester (EBT) on NHTSA’s Conforming Products List (CPL) must be conducted.

48. What Constitutes a Test Refusal? Any of the following circumstances: 1.Failure to appear for any test (except pre-employment) within a reasonable time after being notified to go 2.Failure to remain at the testing site until the testing process is complete 3.Failure to provide a specimen for any drug or alcohol test required by DOT/FTA rules.

49. What Constitutes a Test Refusal? (cont’d.) 4.Refusal to allow the observation or monitoring of a specimen collection when it is required 5.Failure to provide a sufficient urine or breath sample without an adequate medical explanation for the failure 6.Failure to take a second test that the employer or collector has directed the employee to take.

50. What Constitutes a Test Refusal? (cont’d.) 7.Failure to undergo a medical exam as directed by the employer or the MRO as part of the verification process, or “shy bladder” or “shy lung” procedures 8.Failure to cooperate with the testing process. (Examples: refusal to empty pockets when requested, behaving in a confrontational manner that disrupts the process, or failure to wash hands after being directed to do so by the collector).

51. What Constitutes a Test Refusal? (cont’d.) 9.For an observed collection, failure to follow the observer’s instructions to raise clothing above the waist, lower clothing and underpants to mid-thigh, and to turn around to allow the observer to see if employee is wearing a prosthetic or similar device that could be used to interfere with the collection process 10.Possession or wearing of a device as described above intended to help the employee pass the drug test.

52. What Constitutes a Test Refusal? (cont’d.) 10. Admitting adulteration or substitution of the specimen to the collector or the MRO If the MRO reports a verified adulterated or substituted test result In alcohol testing, refusal to sign Step 2 of the Alcohol Testing Form Leaving the scene of the accident without just cause prior to submitting to a required test. (Employer decision).

53. Consequences for Policy/Rule Violation Immediate removal from performance of S/S duties Referral to a SAP for evaluation and treatment resources Assessment of employer disciplinary policy.

54. Consequences After a Confirmed Alcohol Test Result at 0.02 but below 0.04 BAC Immediate removal from S/S duties for at least 8 hours, or Until the employee is retested and the BAC is less than 0.02.

55. Resources FTA Office of Safety & Security www.fta.dot.gov Click on “Safety & Security” Jerry Powers, FTA Drug and Alcohol Program Manager (617) 494-2395 DOT Office of Drug and Alcohol Policy and Compliance www.dot.gov/ost/dapc (202) 366-3784 Transportation Safety Institute www.tsi.dot.gov (405) 954-2336 – Course Manager

56. Free Publications from FTA Website 49 CFR Part 655 Best Practices Manual: FTA Drug & Alcohol Testing Program (December 2007) Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit (Revised November 2003) Prescription and Over-the-Counter Medications Tool Kit (March 2003)

57. Free Publications from FTA Website (cont’d.) Reasonable Suspicion Referral for Drug Alcohol Testing – Video and Trainer/Trainee Guide Drug & Alcohol Newsletter Updates (updated quarterly) FTA Post-Accident threshold cards

58. Free Publications from DOT Website 49 CFR Part 40 (updated as of 6/25/08) 49 CFR Part 40 Questions & Answers What Employers Need to Know About DOT Drug and Alcohol Testing(Revised August 25, 2008) What Employees Need to Know About DOT Drug and Alcohol Testing (January 2008)

59. Free Publications from DOT Website (cont’d.) Best Practices for DOT Random Drug and Alcohol Testing Employer Record Keeping Requirements for Drug and Alcohol Testing Information Urine Specimen Collection Guidelines (Revised effective 8/25/08) DOT’s 10 Steps to Collection Site Security & Integrity

60. Free Publications from DOT Website (cont’d.) Substance Abuse Professional Guidelines (Revised effective 8/25/08) List of HHS certified laboratories List of EBTs on NHTSA’s CPL ODAPC Dispatches (newsletters) ODAPC Reminders

61. QUESTIONS & ANSWERS Leila Procopio-Makuh will be available for questions immediately following this presentation Room 209-210