Drug and Alcohol Program

Management 101

Delivered by Diana Byrnes, C-SAPA

Good morning!✴ This is a double session (back-to-

back with a break at 10:15)

✴ We are covering regulatory information geared toward the new or ”newish” DER (Designated Employer Representative)

Course objectives:1.To provide the DER with the history and an

overview of the USDOT regulations

2.To familiarize the DER with the regulatory language of the drug and alcohol testing industry

3.To identify and outline the most important facets of 49 CFR Part 40

4.To briefly address DOT modal differences, with an emphasis on the structure of the regulations

The Backstory

✴ Clean, Sober and Safe

✴ Two fatal accidents

✴ January 4, 1987

✴ August 28, 1991

“OTETA”✴ The Omnibus Transportation Employee

Testing Act

✴ Signed by President Bush (Sr.) November 1991

✴ This directive required DOT administrations to develop and implement testing rules for safety-sensitive employees within each specific transportation industry

USDOT✴ The United States Department of

Transportation (USDOT):

✴ Prepares the rules for the “how” of testing:

✴ Which specimens are collected, how they are analyzed and how the results are reported

✴ The rule attempts to strike a balance between public safety and individual employee rights

USDOT: 49 CFR Part 40✴ Is applicable to all testing performed under

the authority of the DOT modes/administrations:

✴ Federal Transit Administration

✴ Federal Motor Carrier Administration

✴ Federal Aviation Administration

✴ Pipeline and Hazardous Materials Safety Administration

✴ Federal Railroad Administration

✴ USCG (in relation to the maritime industry)

Modal Regulations✴ Each DOT mode has industry specific rules

that explain the “who” and the “when” of the testing process:

✴ Who is covered? (defines which employees are “safety-sensitive” for that industry and thus covered by the regulation)

✴ When are we required to conduct testing? (defines the testing circumstances/reasons for testing, within each industry)

(We’ll cover more modal specifics later on)

Let’s focus on “Part 40”

✴ Urine collection process

✴ Laboratory analysis of urine

✴ Medical review process

✴ Employee protections/employee rights

✴ Breath/Saliva Screening Specimen for alcohol testing

✴ Evidential breath testing for confirmation in alcohol testing

Urine Collections✴ Collectors that meet DOT qualification

training requirements

✴ A collection site (or restroom) that meets the DOT standards for integrity and security

✴ Split specimen collection (A & B bottles)

✴ Procedures performed in accordance with the USDOT Specimen Collection Guidelines

✴ Collection documented on a Federal CCF

Guidelines for Common Non-Routine Urine Collections

✴ Shy bladder (most common)

✴ Clock starts when employees fails to provide an initial sample of 45mL or greater

✴ Donor is afforded a 3-hour window to produce specimen

✴ UP TO 40 ounces of fluid must be offered* (donor refusing to drink is not a refusal to test)

✴ No specimen = Donor must undergo a physician evaluation within 5 calendar days to determine if a legitimate medical explanation exists.*

✴ No legitimate medical explanation = Refusal to Test

Guidelines for Common Non-Routine Urine Collections

✴ Test Refusals

✴ There are 11actions that constitute an employee’s “refusal to test” under DOT rule: 40 CFR Part 191

✴ They are related to failure to appear, failure to cooperate and failing to fully complete the testing process (including any subsequent required tests or medical evaluations)

✴ Some actions would require the collector to immediately begin a recollection under direct observation procedures

✴ You must ensure that these actions are listed clearly in your substance abuse policy

Laboratory Analysis ✴ Lab process must include:

✴ Donor anonymous analysis performed by a Dept. Health & Human Services certified laboratory

✴ Analysis must be performed in accordance with Part 40 (procedures,cut-off levels,reporting requirements, etc.)

✴ Results can only be reported to a DOT qualified Medical Review Officer

Prohibited Drugs/Drug Metabolites

✴ Amphetamines (includes meth and ecstasy)

✴ Cocaine (includes the rock form of cocaine, known as “crack”)

✴ Marijuana (THC metabolites)

✴ Opiates (codeine,morphine and heroin [6am])

✴ PCP

Cut-off levels for initial and confirmation testing:

49 CFR Part 40.87

Medical Review Process ✴ Must include:

✴ Review of CCF and lab results performed by a DOT qualified Medical Review Officer

✴ Opportunity for donor (employee) to provide a legitimate medical explanation for the presence of a drug metabolite in their urine

✴ Medical Miranda

✴ Split Specimen testing offered

Employee Protections in Drug Testing Procedures-

Recap✴ Privacy while providing specimen

(exceptions apply once an individual has violated the program, more information to follow)

✴ Anonymous analysis of specimen at lab

✴ Opportunity for donor to provide a medical explanation for lab results that are non-negative, prior to results reporting to the employer

✴ Split specimen testing offered (independent and separate analysis of “b” bottle)

Results

DER Actions✴ Negative results require no action

✴ Negative dilute results require action, if policy dictates a retest following a negative dilute

✴ Your policy must be applied consistently and can be specific to test type ( such as random tests only, etc.)

✴ Note: a “super dilute” will require another specimen to be collected from that employee, using direct observation collection procedures. This type of dilute test result will come with instructions from the Medical Review Officer

DER Actions✴ Positive & positive dilute results require you to

immediately remove the employee from safety-sensitive duty.

✴ The employee must be given a referral to a DOT qualified Substance Abuse Professional (SAP)

✴ Zero Tolerance policies mean that the employee is terminated following a positive test result

✴ Second Chance policies allow the employee to return to safety-sensitive duty after successful completion of the return-to-duty process

DER Actions Cont.✴ Some less common results:

✴ Cancelled results are not positive nor negative- follow MRO instruction, which varies depending on the reason for test cancellation

✴ Invalid results are generally due to interference with the analysis process, follow MRO instruction (split specimen testing is not an option for invalid results)

✴ Refusal to Test due to adulteration/substitution requires the same response as a positive test result

Alcohol Testing

Alcohol Testing✴ Saliva testing is approved for screening

purposes only

✴ An evidentiary breath testing device must be used for confirmation purposes (why? : printed tape)

✴ Technicians must meet DOT qualification training requirements

✴ Part 40 procedures must be followed

✴ Result are immediate (therefore no lab or MRO process is involved)

Modal Regulations✴ Aviation (FAA) 14 CFR Part 120

✴ Commercial Motor Carriers (FMCSA) 49 CFR Part 382

✴ Maritime Industry (USCG) 46 CFR Parts 4 & 16

✴ Pipeline (PHMSA) 49 CFR Part 199

✴ Railroad (FRA) 49 CFR Part 219

✴ Transit (FTA) 49 CFR Part 655

Testing Circumstances✴ Pre-employment background

✴ Drug testing is required, alcohol testing authorized

✴ A negative drug test result (and alcohol if applicable) must be received prior to the new employee or transferee’s performance of any safety-sensitive function

✴ This includes any safety-sensitive training

✴ Pre-employment testing is also required by some administrations following an employee’s leave of absence*

Pre- Employment Cont.✴ Pre-employment testing following a leave of

absence:

✴ FTA- 90 days or more, if employee is removed from the random testing pool

✴ FMCSA- 30 days or more, if employee is removed from the random testing pool

✴ FAA- 180 days have lapse since s/s functions were performed and the employee has been removed from the random testing pool

✴ USCG (Maritime)- pre-employment test can be waived if individual has passed a drug test within the previous six months or has been subject to a random testing program in the previous 185 days for at least 60 days and did not fail or refuse

Random Testing✴ An Effective Random Testing Program Manager:

✴ Creates no predictable pattern of testing

✴ Does not perform “group testing”

✴ Requires employees to “drop everything and go” upon notification

✴ Is careful not to give non-verbal notification to employees

✴ Does not allow unauthorized access to selection lists, testing schedules, etc.

✴ Updates the employee pool prior to each new selection

✴ Ensures that at least the minimum annual percentages are met

Random Testing Cont.

Post-Accident Testing✴ Each DOT mode has established

criteria/thresholds that must be met in order for a DOT drug and/or alcohol test to be authorized

✴ Ensure that company officials understand the established criteria and only administer DOT testing when the criteria is met.

✴ NON-DOT testing (on non-Federal forms) can be part used under employer authority when accidents/events do not meet the testing thresholds

✴ Please be sure to attend our workshop session devoted exclusively to post-accident testing criteria

Reasonable Suspicion/Cause✴ Is only authorized when observations are

made by a company official that has received appropriate training

✴ Observations must be “specific, contemporaneous and articuable” signs and symptoms of prohibited drug use or alcohol misuse. Meaning that:

✴ You can define precisely what you have observed, i.e.; dilated pupils

✴ The observations were made in that moment, not previously

✴ You can clearly articulate what you have observed

Return to Duty Testing✴ Pre-employment tests following a leave of absence

are often miscoded as Return-to-duty tests

✴ Return-to-Duty tests are only applicable when an employee has tested positive (or refused to submit to testing), and has completed the Substance Abuse Professional’s course of treatment.

✴ The SAP determines satisfactory completion of the prescribed treatment and notifies the employer of the employee’s eligibility to undergo a Return to Duty test.

✴ Return to Duty tests must be conducted under direct observation collection procedures

Follow-Up Testing✴ Helps to ensure that an employee continues to

stay “clean”

✴ The frequency and duration of follow-up tests are determined by the SAP (a minimum of 6 in the first 12 months-- up to 60 months)

✴ The employer schedules the testing based on the SAP’s directive

✴ The employee must never be given advance notice of the testing (nor the frequency or duration)

✴ Follow-up testing is also conducted under D.O. collection procedures.

Administrative Duties✴ The DER is the Designated Employer

Representative and as such, he/she must have the authority to remove an employee from safety-sensitive duty upon notification of a policy violation

✴ Records related to drug and alcohol testing must be kept in a locked cabinet and a locked office and should not be combined with other personnel records. (Testing records should only be accessible by the DER and back-up).

✴ Compliance to the regulations falls to the DER, including compliance of the service agents used to administer the testing program

Best Practices✴ Use a testing notification form (aka Notice to Test) to

help communicate your testing needs to the collection site/collector

✴ Keep your records organized, review your employer copies of the CCFs as they come back from the collector

✴ Document, document, document (the training that you give, random testing details, post accident decisions, reasonable suspicion determinations, etc.)

✴ Implementation aids can be life savers. Visit the Byrnes and Associate website for a variety of implementation aids:

✴ http://byrnesandassociates.com

Resources✴ Byrnes and Associates welcome page contains

links to the individual modal regulations and webpages:

✴ http://byrnesandassociates.com

✴ Office of Drug and Alcohol Policy and Compliance:

✴ http://www.dot.gov/odapc

✴ Substance Abuse Program Administrator’s Association:

✴ http://www.sapaa.com

http://www.faa.gov

Questions?

✴ Let’s open the floor for questions:

Thank you for attending,

see you around the conference!~

Diana