Transcript Speaker Esther Avalos(

Drug and Alcohol Testing in
Accordance with DOT and
FTA Regulations
Presented by: Esther Avalos, Director of Compliance, MV Transportation, Inc.
•
DOT’s “Medical Marijuana” Guidance –
October 2009

Bottom Line: Medical Review Officers will not verify a
drug test as negative based upon information that a
physician recommended that the employee use “medical
marijuana.” It remains unacceptable for any
safety‐sensitive employee subject to drug testing under
the Department of Transportation’s drug testing
regulations to use marijuana.
•
Public Interest Exclusion – Published
November 17, 2009
The DOT revised 49 CFR Part 40 in a Federal Register published
June 25, 2008.
The DOT changed the observed collection procedures because there was ample
evidence suggesting that more and more devices are available in
the market place designed to tamper with specimens
•The same gender observer enters the restroom or facility where urination occurs
with the employee. The observer must request the employee to
•raise his or her shirt, blouse, or dress/skirt, as appropriate, above the
•waist, just above the navel; and lower clothing and underpants to
•mid-thigh; and to show the observer – by turning around – that the employee
•does not have a prosthetic device. After the observer has determined that the
employee does not have such a device, the observer may permit the employee to
return clothing to its proper position and then conduct the observed collection.
•The observer must watch the employee urinate into the collection container.
Specifically, the observer must personally and directly watch the urine go from
•the employee’s body into the collection container (use of mirrors or video
cameras is not permitted).
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•MDMA Testing – We added this under the category of Amphetamine
testing
See 49 CFR sections 40.87 and 40.97
•Lowering Laboratory Cutoff Criteria for Cocaine and Amphetamines
See 49 CFR sections 40.87 and 40.97
•Laboratory Testing for 6-Acetylmorphine (6-AM)
See 49 CFR sections 40.87, 40.97, 40.139, 40.140
•Remember, there is “no legitimate medical explanation for the presence
of PCP, 6-AM, MDMA, MDA, or MDEA in a specimen” – 49 CFR section
40.151
If you would like to view the full scope of these changes you can go to:
http://www.dot.gov/ost/dapc/frpubs.html
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Still considered a 5-Panel under DOT Regulations


Ecstasy, MDMA is a synthetic, psychoactive drug that is chemically similar
to the stimulant methamphetamine and the hallucinogen mescaline. MDMA
causes an increase in serotonin which plays an important role in the
regulation of mood, sleep, pain, appetite, and other behaviors.
Ecstasy users make extremely dangerous drivers. They can exhibit the
same impairments as amphetamine, heroin, cocaine, and hallucinogen
users.
Some ways driving ability is affected by ecstasy use include:

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Slowed thinking and reflexes- making reacting difficult
Distorted visual and depth perception
Difficulty making complex decisions
Lengthened glare recovery time
Overly confident in driving skills and judgment
Lapses in attention and concentration –
driver is unable to display continuous attention
Distorted vision
Auditory and visual hallucinations
The Drug Testing Process
Employee
Selected
Sample
Collected
Refusal
Sample
Couriered to
Lab
Remove from
Duty, Refer to
SAP
Lab Analysis
Medical Review
Officer
Negative
DAPM
Test Complete
Positive
1. Employee
Verification
2. DAPM
POSITIVE TEST
Remove from
Duty, Refer to
SAP
Pre-employment Processing
Policy & Training
Random Testing
Post-Accident Testing
Reasonable Suspicion Testing
Return-to-Duty Testing
Follow-up Testing
Vendor Monitoring
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


Contingent upon offer
Negative result must be in hand prior to SS
duty
Pre-employment Alcohol Testing
 You
may choose to do this
 (it’s an IQ test!)
 If you do, you must do it with Federal forms,
and for all SS applicants/employees.

If SS emp is away 90+ days, and out of
random testing pool, perform a preemployment test!
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Keep pre-employment
negatives beyond
FTA’s retention
requirement
Keep them as
long as you
employ the
individual
Record date of safetysensitive duty
In addition to
date of hire
40.25
Log your
good-faith
efforts
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
49 CFR Part 40 Section 25 requires Backgrounds
 Make
your requests under 40.25, not 382!
SS employers from last 2 years
 Within 30 days of hire
 You must ask the employee:
 “have you, in the last two years, failed or refused a
DOT pre-employment test?”



You must ask this because, had he failed/refused, you would
have no employer of whom to make the above request!
You must return requests made of you
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
Check compliance annually
 49
CFR Part 40 changed in October of 2010 –
have you updated your policy?

Do you have a model policy?
 Make
sure it’s localized!
 Make sure your Board/GM knows!

Disseminate & Explicate
 Your
job is to help employees get it!
 Get a receipt from each employee (it’s proof!)
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Failure To:
 Appear at all, or in a timely manner*
 Remain until the testing process is complete**
 Provide a sample**
 Provide a full sample w/o medical reason
 Undergo a medical evaluation
 Cooperate w/ any part of the process
 Permit monitoring/observation
 Take a second test, as ordered
 Sign step 2 of the Alcohol Testing Form
 The submission of a verified adulterated/
substituted test

*Not a refusal for pre-employment testing
**Not a refusal for pre-employment testing, provided testing has not yet begun (Cup
handed to donor)
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
On August 25, 2008, the following refusals
were added (§40.191(a)(9-10)):
 The
possession or wearing of a prosthetic or
other device that could be used to interfere
with the collection process
 Failure to follow an observer’s instructions to
raise/lower clothing and underpants, and to
turn around to permit the observer to
ascertain the presence/absence of interfering
paraphernalia
 Admission to the collector/MRO of
adulteration or substitution
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 Decisions
you must make locally:
 “2nd Chance” Policy
 Negative-Dilute Policy
A
second negative-dilute is always negative
 You must treat all employees the same
 You may have different policies for different test
types
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

60 min of Training for each Safety-sensitive
Employee – Effects of Drug Use
120 min of Training for each Supervisor
authorized to make Reasonable Suspicion
Determinations:
 60
min on Drug Use
 60 min on Alcohol Use
 Training Video is available free from FTA
 There is no official certification for this: selfcertify!
Make sure your training now includes
information on Ecstasy (MDMA)
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 Determine
 Cannot
your draw period
be less frequent than quarterly
 Determine
your rate (FTA Minimum is
25%/10%)
A
percentage of the number of safety-sensitive
staff you employ throughout the year, on average
 You can test at a higher rate
 Your policy should indicate your rate
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Random Testing
Deter, Detect, Deter
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

This year, you must test 25%/10% of the
 average number of safety-sensitive
employees
An example:
Q1: 336 SS emps
• Q2: 342 SS emps
• Q3: 361 SS emps
• Q4: 341 SS emps
 Average  (1380/4)=345 (this is the # of emps
for MIS);
 Test for Drug: 25% = 86.25
(87+ tests 
22/q)
 Test for Alcohol: 10% = 34.5 (35+ tests  9/q)
•
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• Keep your roster up to date
 Use payroll, log, or other consistent mechanism
 US DOT covered employees only!
 Get this info to your C/TPA (as applicable) on time
 Ensure that your C/TPA gets it back to you!
 Selection Lists must be securely
maintained (2yrs+)
 Locked cabinet, minimal distribution
 Secure fax line, email, etc.
 Notification of Random Testing
 Chain of Notification
(Supervisors? Dispatchers?)
 Who ensures spreading of random tests?
 Constraints on random alcohol testing
You may only perform random alcohol testing just before,
during, or just after safety-sensitive duties.
 Random
Testing must be spread:
 Throughout
the Year
 Throughout the Week
 Throughout All Hours of Safety-Sensitive Duty
 Spread
may be proportional; it is not an even
spread
 The goal of spreading tests is to increase
deterrence through unpredictability
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
Remember:
 The
spread is proportional to service
 Alcohol Testing may only be performed




Just before safety-sensitive duty
During safety-sensitive duty
Just after safety-sensitive duty
Drug testing may be performed at any time
 If
only one employee works on Sundays, and
that employee is not selected for testing, then
it’s fine to not test on Sunday during that
period
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Accident: Associated with the operation of a
revenue service vehicle, whether or not the
vehicle is in revenue service (includes in the
yard)
 Fatality
 Disabling
 Injuries
Damage to any Vehicle
requiring immediate medical treatment
away from scene
•
The police clear the scene of the
accident and the driver of the other
vehicle has been sent to the hospital in
the ambulance from the scene, your
driver was rear ended and the police are
citing the other driver.

-Do you test your driver?
Nonfatal Accidents –
As soon as practicable following an accident NOT
involving the loss of human life in which a
vehicle is involved, you must drug and alcohol
test the operator at the time of the accident …
UNLESS you can determine using the best
information available at the time of the
decision, that the operator’s performance can
be completely discounted as a contributing
factor to the accident.
Factors that do not trigger P.A. tests
 Dollar
amount of damage
 Driver citation
 Insurance or Company requirement
 “Just to be safe”
 Reasonable Suspicion implications

Jerry Powers, FTA D&A Program Manager
 (617)
494-2395
 [email protected]

Mike Redington, RITA/Volpe Center
 (617)
494-2197
 [email protected]

Eve Rutyna, RITA/Volpe Center
 (617)
494-3447
 [email protected]

FTA Drug and Alcohol Hotline
 (617)
494-6336
 [email protected]

For questions regarding an audit, contact the
audit team leader
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
FTA Safety & Security:
 http://transit-safety.fta.dot.gov

FTA D&A MIS Reporting:
 http://transit-safety.fta.dot.gov/Safety/DAMIS.asp

DOT Office of Drug & Alcohol Policy & Compliance:
 http://www.dot.gov/ost/dapc

FTA Drug & Alcohol Forum:
 http://transit-
safety.fta.dot.gov/Safety/BBS/default.asp
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Questions & Answers