HOW TO WRITE A COMPLIANT ANTI-DRUG AND ALCOHOL MISUSE POLICY Ed VanderPloeg FTA Auditor - Cahill Swift, LLC April 16-17, 2014

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

3 Functions of the Policy Provide clear, concise guidance to employees regarding the DOT/FTA substance-abuse prevention program Provide clear, concise guidance to employees regarding the DOT/FTA substance-abuse prevention program Rights Rights Responsibilities (i.e., when testing will be done) Responsibilities (i.e., when testing will be done) Prohibited actions Prohibited actions Function as a guide for the DAPM for program implementation 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 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 and Comply with 49 CFR and Section : “The local governing board of the employer or operator shall adopt an anti- drug and alcohol misuse policy statement.” Section : “The local governing board of the employer or operator shall adopt an anti- drug and alcohol misuse policy statement.” Section : “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.” Section : “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.” 4

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

6 Key Requirements of the Policy (cont.) Describe the categories of covered employees (i.e., define safety- sensitive function) – cont. Describe the categories of covered employees (i.e., define safety- sensitive function) – cont. Operating a non-revenue service vehicle that requires a CDL Operating a non-revenue service vehicle that requires a CDL Carrying a firearm for security purposes 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. 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.

7 Key Requirements of the Policy (cont.) Describe Prohibited Behaviors - Drugs 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 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 Marijuana Cocaine Cocaine Amphetamines Amphetamines Opiates Opiates Phencyclidine Phencyclidine

8 Key Requirements of the Policy (cont.) Describe Prohibited Behaviors - Alcohol Describe Prohibited Behaviors - Alcohol No performance of safety-sensitive function while having an alcohol concentration of 0.04 or greater 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 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 No usage for eight hours following an accident or until a post-accident alcohol test is performed

9 Key Requirements of the Policy (cont.) Describe Circumstances of Testing Describe Circumstances of Testing Pre-Employment Pre-Employment Random Random Post-Accident Post-Accident Reasonable Suspicion Reasonable Suspicion Return-to-Duty / Follow-Up 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 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 Pre-Employment Testing Verified negative test result required before first performance of safety-sensitive duty 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 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 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 Alcohol testing (if done) will be performed for all covered positions and follow Part 40 requirements 10

Key Requirements of the Policy (cont.) Random Testing Random Testing Selections will be made using a scientifically valid method 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) 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 unannounced and immediate Testing will be reasonably spread (i.e., conducted on all days and hours throughout the year) Testing will be reasonably spread (i.e., conducted on all days and hours throughout the year) 11

Key Requirements of the Policy (cont.) Post-Accident Testing - Thresholds Post-Accident Testing - Thresholds Fatality (testing mandatory) Fatality (testing mandatory) Immediate medical treatment away from scene (testing required unless employee discounted) Immediate medical treatment away from scene (testing required unless employee discounted) Disabling damage to one or more vehicles (testing required unless employee discounted) Disabling damage to one or more vehicles (testing required unless employee discounted) 12

Key Requirements of the Policy (cont.) Post-Accident Testing – Requirements Post-Accident Testing – Requirements Driver, as well as any other covered employee(s) whose performance could have contributed to the accident, subject to testing 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 Employee must remain readily available Testing is stayed while employee assists in resolution of the accident or receives medical attention Testing is stayed while employee assists in resolution of the accident or receives medical attention 13

Key Requirements of the Policy (cont.) Reasonable Suspicion Testing Reasonable Suspicion Testing Determination will be made by a trained supervisor Determination will be made by a trained supervisor Contemporaneous observation of physical signs and symptoms of possible drug/alcohol use required Contemporaneous observation of physical signs and symptoms of possible drug/alcohol use required 14

Key Requirements of the Policy (cont.) Return-to-Duty and Follow-up Testing Return-to-Duty and Follow-up Testing Will be conducted in accordance with process set forth in Part 40, Subpart O Will be conducted in accordance with process set forth in Part 40, Subpart O All tests will be conducted under direct observation All tests will be conducted under direct observation 15

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

17 Key Requirements of the Policy (cont.) Identify Actions that Constitute a Refusal to Test – 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 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 undergo a medical evaluation as required by the MRO or DER Failure to cooperate with any part of the testing process Failure to cooperate with any part of the testing process Failure to permit monitoring or observation for drug testing Failure to permit monitoring or observation for drug testing

18 Key Requirements of the Policy (cont.) Identify Actions that Constitute a Refusal to Test – 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 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 Possessing or wearing a prosthetic or other device used to tamper with the testing process

19 Key Requirements of the Policy (cont.) Identify Actions that Constitute a Refusal to Test – 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 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 Admitting the adulteration or substitution of a specimen to the collector or MRO Verification of a test by the MRO as adulterated or substituted Verification of a test by the MRO as adulterated or substituted

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

21 Key Requirements of the Policy (cont.) Describe Consequences of a Non- Negative Test Result 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 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

22 Key Requirements of the Policy (cont.) Describe Consequences of a Non- Negative Test Result – 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 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

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

24 Key Requirements of the Policy (cont.) Required “Administrative” Elements of a Compliant 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 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 Include a statement that each covered employee is required to submit to drug and alcohol tests administered in accordance with Part 655

25 Key Requirements of the Policy (cont.) Required “Administrative” Elements of a Compliant Policy – cont. Required “Administrative” Elements of a Compliant Policy – cont. Documentation of policy approval/adoption (i.e., effective date, signatures) 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 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 Documentation of distribution to safety- sensitive employees

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

27 Methods of Developing a Policy Start from scratch – the auditors’ policy review checklist can be found on the FTA website Start from scratch – the auditors’ policy review checklist can be found on the FTA website ( safety.fta.dot.gov/DrugAndAlcohol/TechnicalA ssistance/Checklist/PolicyReqsChecklist.aspx) ( safety.fta.dot.gov/DrugAndAlcohol/TechnicalA ssistance/Checklist/PolicyReqsChecklist.aspx) Checklist can be used to conduct your own policy review while you write Checklist can be used to conduct your own policy review while you write

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

29 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 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 49 CFR Part 655 dictates the specific elements that need to be included Don’t just file it away once it is done: Don’t just file it away once it is done: Learn it completely Learn it completely Review it frequently Review it frequently Update it as needed Update it as needed

Policy Review Exercise Spend 10 minutes reviewing the handout Spend 10 minutes reviewing the handout Group Discussion to follow Group Discussion to follow 30

31 Questions and Answers I will be available to answer questions now, or you can track me down later. I will be available to answer questions now, or you can track me down later.