HOW TO WRITE A COMPLIANT ANTI-DRUG AND ALCOHOL MISUSE POLICY Ed VanderPloeg FTA Auditor - Cahill Swift, LLC April 10-11, 2013

Introduction About the speaker Session format Session goal Functions of the policy Required elements of the policy Mechanics of developing a policy Policy Review Exercise Q & A – jump in as we proceed, or at the end Session goal Equip everyone in the room to write a compliant policy, or analyze and fix a non-compliant policy

Functions of the Policy Provide clear, concise guidance to employees regarding the DOT/FTA substance-abuse prevention program Rights Responsibilities (i.e., when testing will be done) Prohibited actions Function as a guide for the DAPM for program implementation Protect the employer in case of employee objections/grievance following a positive test or other regulatory violation

Functions of the Policy (cont.) Comply with 49 CFR 655.15 and 655.16 Section 655.15: “The local governing board of the employer or operator shall adopt an anti-drug and alcohol misuse policy statement.” Section 655.16: “Each employer shall provide written notice to every covered employee and to representatives of employee organizations of the employer’s anti-drug and alcohol misuse policies and procedures.”

Key Requirements of the Policy Describe the categories of covered employees (i.e., define safety-sensitive function) Operating a revenue service vehicle, whether in or out of service Maintaining a revenue service vehicle or equipment used in revenue service Controlling the dispatch or movement of a revenue service vehicle

Key Requirements of the Policy (cont.) Describe the categories of covered employees (i.e., define safety-sensitive function) – cont. Operating a non-revenue service vehicle that requires a CDL Carrying a firearm for security purposes Volunteers: Must drive a vehicle that requires a CDL, or be compensated in excess of actual costs incurred, in order to be considered safety-sensitive.

Key Requirements of the Policy (cont.) Describe Prohibited Behaviors - Drugs Employees are prohibited from using the five listed drugs at all times; an employee may be tested for these drugs any time while on duty Marijuana Cocaine Amphetamines Opiates Phencyclidine

Key Requirements of the Policy (cont.) Describe Prohibited Behaviors - Alcohol No performance of safety-sensitive function while having an alcohol concentration of 0.04 or greater No usage four hours before performing, while performing, or while on-call to perform a safety-sensitive duty No usage for eight hours following an accident or until a post-accident alcohol test is performed

Key Requirements of the Policy (cont.) Describe Circumstances of Testing Pre-Employment Random Post-Accident Reasonable Suspicion Return-to-Duty / Follow-Up State that random & reasonable suspicion alcohol testing is only permissible just before performing a safety-sensitive function, during that performance, or just after that performance

Key Requirements of the Policy (cont.) Pre-Employment Testing Verified negative test result required before first performance of safety-sensitive duty If out of safety-sensitive duty for 90+ days and out of random pool, a DOT pre-emp test with verified negative result required before resuming SS duty Applicant who previously failed or refused a DOT pre-employment test must show evidence of having completed SAP referral/evaluation/treatment process Alcohol testing (if done) will be performed for all covered positions and follow Part 40 requirements

Key Requirements of the Policy (cont.) Random Testing Selections will be made using a scientifically valid method Each employee will have an equal chance of selection each time selections are made (i.e., no discretion by supervisors) Testing will be unannounced and immediate Testing will be reasonably spread (i.e., conducted on all days and hours throughout the year)

Key Requirements of the Policy (cont.) Post-Accident Testing - Thresholds Fatality (testing mandatory) Immediate medical treatment away from scene (testing required unless employee discounted) Disabling damage to one or more vehicles (testing required unless employee discounted)

Key Requirements of the Policy (cont.) Post-Accident Testing – Requirements Driver, as well as any other covered employee(s) whose performance could have contributed to the accident, subject to testing Employee must remain readily available Testing is stayed while employee assists in resolution of the accident or receives medical attention

Key Requirements of the Policy (cont.) Reasonable Suspicion Testing Determination will be made by a trained supervisor Contemporaneous observation of physical signs and symptoms of possible drug/alcohol use required

Key Requirements of the Policy (cont.) Return-to-Duty and Follow-up Testing Will be conducted in accordance with Part 40, Subpart G All tests will be conducted under direct observation

Key Requirements of the Policy (cont.) Identify Actions that Constitute a Refusal to Test Failure to appear in a timely fashion (except for pre-employment tests) Failure to remain until the testing process is complete Failure to attempt to provide a breath or urine specimen

Key Requirements of the Policy (cont.) Identify Actions that Constitute a Refusal to Test – cont. Failure to provide a sufficient quantity of urine or breath without a valid medical explanation Failure to undergo a medical evaluation as required by the MRO or DER Failure to cooperate with any part of the testing process Failure to permit monitoring or observation for drug testing

Key Requirements of the Policy (cont.) Identify Actions that Constitute a Refusal to Test – cont. Failure to follow an observer's instructions to raise and lower clothing and turn around during a directly-observed test Possessing or wearing a prosthetic or other device used to tamper with the testing process

Key Requirements of the Policy (cont.) Identify Actions that Constitute a Refusal to Test – cont. Failure to take a second test as directed by the collector or employer for drug testing Admitting the adulteration or substitution of a specimen to the collector or MRO Verification of a test by the MRO as adulterated or substituted

Key Requirements of the Policy (cont.) Identify Actions that Constitute a Refusal to Test – cont. Refusal to sign the certification at Step 2 of the ATF Failure to remain readily available following an accident

Key Requirements of the Policy (cont.) Describe Consequences of a Non-Negative Test Result Positive or refused drug or alcohol test: employee will be removed immediately from his or her safety-sensitive function and referred to a qualified substance abuse professional

Key Requirements of the Policy (cont.) Describe Consequences of a Non-Negative Test Result – cont. Alcohol test between 0.02 and 0.039: employee will be removed immediately from his or her safety-sensitive function for at least 8 hours or until the beginning of their next scheduled shift, whichever is longer, or until a re-test shows a BAC of less than 0.02

Key Requirements of the Policy (cont.) Required “Administrative” Elements of a Compliant Policy Identify the contact person who will answer questions about the drug and alcohol program (by name or title/position) Differentiate FTA requirements from any additional employer-specific elements May include Drug Free Workplace Act provisions, but they must be so identified List all covered job titles (i.e., safety-sensitive positions)

Key Requirements of the Policy (cont.) Required “Administrative” Elements of a Compliant Policy – cont. Include a statement that all drug and alcohol testing will be conducted in accordance with 49 CFR Part 40 procedures (i.e., protect the employee and the integrity of testing process) Include a statement that each covered employee is required to submit to drug and alcohol tests administered in accordance with Part 655

Key Requirements of the Policy (cont.) Required “Administrative” Elements of a Compliant Policy – cont. Documentation of policy approval/adoption (i.e., effective date, signatures) No provisions in the policy may be inconsistent with or have the effect of thwarting the FTA regulations Documentation of distribution to safety-sensitive employees

How Long Should the Policy Be? Long enough to be compliant (i.e., include all of the elements we’ve discussed thus far). Good policies can be as short as 12-15 pages or as long as 50 – it’s all a matter of style. Issues with longer policies: Increases the chance that something will be worded incorrectly or confusingly. Decreases the chance that employees will actually read it.

Methods of Developing a Policy Start from scratch – the auditors’ policy review checklist can be found in both pdf and Word formats on the FTA website (http://transit-safety.fta.dot.gov/DrugAndAlcohol/TechnicalAssistance/Checklist/PolicyReqsChecklist.aspx) Checklist can be used to conduct your own policy review while you write

Methods of Developing a Policy (cont.) Obtain a model policy from another similar transit provider, Best Practices Manual, or auditor: edit, customize, finalize, adopt Finished product must actually describe local policies (e.g., second chance) Must do a complete entity name search-and-replace throughout document Pay someone to develop one for you

In Conclusion… Your policy is the bedrock upon which your entire drug and alcohol program rests…so it is well worth your time to get it right. 49 CFR Part 655 dictates the specific elements that need to be included Don’t just file it away once it is done: Learn it completely Review it frequently Update it as needed

Policy Review Exercise Spend 10 minutes reviewing the handout Group Discussion to follow

Questions and Answers I will be available to answer questions now as well as following this session