FTA Drug and Alcohol Regulation Updates
Note: Electronic access to this document is provided by
the Public Transportation Office, Washington State Department of
Transportation. The content belongs to the Office of Safety and
Security, Federal Transit Administration (FTA), U.S. Department
of Transportation.
Issue 3--Summer 1996
Introduction
The Federal Transit Administration (FTA) published its final
rules on prohibited drug use (49 CFR Part 653) and the prevention
of alcohol misuse (49 CFR Part 654) on February 15, 1994. Shortly
thereafter, the FTA published the Implementation Guidelines for
Drug and Alcohol Regulations in Mass Transit to provide a
comprehensive overview of the Regulations. Since the Guidelines
were published there have been numerous ammendments,
interpretations, and clarifications to the Drug and Alcohol
testing procedures and program requirements. This publication is
being provided to update the Guidelines and inform your transit
system of all these changes. This Update is the third of four
that will be published this year.
Table of Contents
Tests Cost Less Than
Expected
Insufficient
Volume Rule Changes
Regulatory Ammendments Medical Exam
Requirements Clarified Split Sample Results
Go to Employer Confirmed
Positive Tests Issue Resolved SAP Definition Expanded
Testing Procedures Collection
Practices Need Improvement Body Temperature Measurement
Corrections and
Clarifications Information
Disclosure and Benefits MIS
Reports Due March 15
FTA Program Monitoring Triennial Review FTA Oversight Audits Questions and Answers
FTA Interpretations Definition of Supervisor Pre-employment Test
Following Leave Chain
of Custody and Control Forms Correction
Tests Cost Less Than Expected
Prior to implementation of their drug and alcohol testing
programs, many rural transit systems expressed concern regarding
the cost of the program and the subsequent burden the program
would have on the operating environment. Six months into the
program, most of these concerns have not materialized or have
been overcome. Even the most rural of states have been able to
come into compliance in a cost-effective manner. Lowell Richards
of the South Dakota Department of Transportation reports that all
ten rural public transit systems in the state are in compliance
with an average cost per test, including administration costs, of
$88.17, which is far less than their original projection.
On July 19, 1996,
the Department of Transportation published a final rule in Volume
61 of the Federal Register (pages 37693-37700) modifying its
procedures regarding insufficient volume during urine specimen
collection. Previously the rule stated that individuals who could
not provide sufficient volume (45 ml) of urine should be
instructed by the collection site person "to drink not more
than 24 ounces of fluid, and after a period of up to two hours,
again attempt to provide a complete sample." If the
individual was still not able to provide sufficient volume, the
individual had to be referred for a medical evaluation to
determine whether the individual's inability to provide a
specimen was genuine or constituted a refusal to test. In
response to concerns expressed by many through a Notice of
Proposed Rule-Making (July 25, 1995) it was determined that the
two-hour period to obtain a sufficient volume is too short.
Consequently, the DOT has revised the rule to allow up to three
hours to obtain a complete sample. In addition, the fluid
intake amount was raised from 24 to not more than 40 ounces
during the period. The three hour period will provide a
comfortable margin of safety to employees who may need additional
time to generate a sufficient specimen and the 40 ounce level
provides an enhanced chance for employees required to provide the
required volume of urine. The rule does not propose a schedule
for how the fluids should be consumed. The rule simply requires
that the fluids be administered at reasonable intervals
throughout the three hour period. If an individual refuses to
drink fluids as directed or refuses to provide a new urine
specimen, the individual will be considered to have refused the
test which has the same consequences as a positive test. The
effective date of this change was August 19, 1996.
Regulatory Ammendments
Medical Exam
Requirements Clarified
If an individual
is unable to provide a sufficient specimen within three hours of
their first attempt, the collection process must stop and the
employer must refer the individual for a medical examination to
be conducted as soon as possible. The examination must be
performed to determine whether the employee's inability to
provide a sufficient specimen is medically "genuine."
In the July 19, 1996 Federal Register (page 37699) Section 40.25
clarifies what constitutes an adequate medical explanation. The
rule states that "a medical condition includes an
ascertainable physiological condition (e.g., a urinary system
dysfunction) or a documented pre-existing psychological disorder,
but does not include unsupported assertions of "situational
anxiety" or "dehydration." The physician's
decision ultimately must be decided on a case by case basis. If
the physician is unable to identify an adequate medical
explanation as defined above, the individual's failure to provide
a sufficient specimen shall be regarded as a refusal. The
physician is required to provide the MRO with a brief written
statement indicating whether or not the insufficient specimen was
within a high degree of probability the result of a genuine
medical condition. The written statement should not include
detailed information on the medical condition of the individual.
The MRO will in turn notify the employer in writing of the
medical examination conclusion. The physician who performs the
medical examination must be a licensed physician who is
acceptable to the employer.
Split Sample
Results Go to Employer
On July 19,
1996, Section 40.33 (f)(2) was added to 49 CFR Part 40 clarifying
that the result of a split specimen test be reported by the MRO
to both the employer and employee regardless of who pays for the
test. The rule remains silent regarding who chooses the second
DHHS certified laboratory for split specimen testing. The
selection of the second lab should be considered a local
decision. Most commonly the selection is made by the employer,
employee, MRO or collective bargaining unit depending on local
policy.
Confirmed
Positive Tests Issue Resolved
Upon
receiving a confirmed positive test result from the laboratory,
the Medical Review Officer is required to make every reasonable
attempt to contact the individual to afford them the opportunity
to discuss the test result. If the MRO can not reach the
individual, the MRO is to ask the employer to contact the
employee. Under the previous version of the rule, the test could
not be verified as positive until the employee had been contacted
and given the opportunity to discuss the result with the MRO.
However, in
some cases, employees simply do not return to work following the
test and/or are not able to be contacted, thus leaving the
testing process incomplete. The Federal Register published on
July 19, 1996 (pages 37699-37700) amended 49 CFR Part 40 to
address this issue. The regulation states in Section
40.33(c)(5)(ii) that if neither the MRO or employer, after making
all reasonable efforts, has been unable to contact the employee
within 14 days after the MRO receives the laboratory result, the
MRO may verify the test result as positive.
If the
individual was not able to contact the MRO during the 14 day
period due to serious illness, injury, or other circumstance
beyond the control of the individual, the individual may present
documentation to the MRO of such occurrence. Upon reviewing the
information submitted, the MRO may re-open the process and allow
the individual to provide an explanation for the positive test
result. If the MRO concludes that there is a legitimate
explanation, the MRO is to declare the test to be negative.
This amendment
is based on the premise that the individual has
an obligation in all cases to participate in the verification
process.
SAP Definition Expanded
The drug and alcohol testing
regulations require that individuals who test positive or refuse
to take a test be referred to a Substance Abuse Professional
(SAP) for assessment. The SAP's fundamental responsibility is to
provide a comprehensive face-to-face assessment and clinical
evaluation to determine if the employee needs assistance
resolving problems associated with alcohol use or prohibited drug
use and to recommend a course of treatment. The SAP must also
determine if the individual has successfully completed the
recommended treatment program and directs the employee's
follow-up testing program. The DOT rule was amended on July 17,
1996 in the Federal Register (pages 37222-37224) to expand the
SAP definition to read as follows: "A licensed physician
(Medical Doctor or Doctor of Osteopathy); or a licensed or
certified psychologist; social worker; or employee assistance
professional; or an addiction counselor (certified by the
National Association of Alcoholism and Drug Abuse Counselors
Certification Commission or by the International Certification
Reciprocity Consortium/Alcohol and other Drug Abuse [Emphasis
added]). All must have knowledge of and clinical experience in
the diagnosis and treatment of alcohol and controlled
substances-related disorders." Individuals that do not meet
these requirements can not serve as SAPs. Also, note that
agencies or Employee Assistance Programs may employ individuals
that are SAPs, but the agency program can not be considered the
SAP; SAPs must be specific individuals.
Testing Procedures
Collection
Practices Need Improvement
Anecdotal
information from transit systems, third party administrators, and
some collection sites indicate that the standard operating
procedures of some collection sites are in violation of the
regulatory requirements. The most common violations are:
Limited
Service Hours - Transit systems are required to perform
collections any time an employee is conducting safety-sensitive
job functions. This includes early morning, evening, and weekends
for most transit systems that operate beyond normal business
hours. If the primary collection site has limited hours of
operation, it is up to the transit system or their designee to
obtain collection services elsewhere during the extended hours.
The fact that a collection site is closed is not sufficient
justification for failure to conduct a test.
Procedural Violations - Collection sites are required to
give an employee up to three hours to provide a sufficient
specimen following an initial attempt that resulted in an
insufficient volume. In some cases, collection sites have simply
sent the employee home at the normal closing time, instructing
the employee to return the next morning. This practice is in
direct violation of the regulation. The collection process, once
initiated, must be followed completely to its conclusion.
Rushing Second Attempt - Some collection site personnel
have frustrated the collection process by asking for a retry too
soon following an initial effort resulting in insufficient
volume. Attempting a retry too soon may result in additional
insufficient volume collections. Thus, collection site personnel
should take care to avoid this problem.
Delayed Collections - Often, collection sites require individuals
to wait for extended periods of time prior to beginning the
collection process. This waiting increases the time associated
with each collection and the corresponding costs. Thus,
collection sites should be encouraged to initiate their
collection process as soon as an individual arrives at the site.
The FTA
recipient is ultimately responsible for the quality of the
collection process; thus recipients should work closely with
their consortium, third party administrators and/or collection
sites to ensure that the collections are performed consistent
with the regulations.
Body Temperature
Measurements
As part of the
collection process, the temperature of each urine specimen is
checked to identify specimens that have been altered or
substituted. If a specimen is outside the 90ºF to 100ºF range,
the individual's body temperature is checked. More than 1.8ºF
difference between the specimen and body temperature will result
in an observed collection. The July 19, 1996 Federal Register,
(page 37699) clarifies that an individual's body temperature can
be measured by any medically accepted means, including oral and
tympanic, but excluding rectal.
Corrections and Clarifications
Information
Disclosure and Benefits
The regulations
permit the disclosure of drug and alcohol testing results only
under very limited circumstances (see Spring 1996 Update, page
4). Requests for test result information by an unemployment
service bureau can be granted, if the individual's dismissal was
a result of a positive drug or alcohol test. The information can
be released under 49CFR section 653.75 (g) and 49CFR section
654.55 (g) which state information can be released to the
decision-maker in a lawsuit, grievance, or other proceeding
initiated by or on the behalf of the employee tested. Since the
request for unemployment benefits was initiated by the employee,
the employer may release the information to the decision-maker in
a confidential manner.
MIS Reports Due March 15
FTA requires that transit
agencies file annual reports summarizing test results (49CFR
653.53 and 49CFR 654.53) by March 15 of each year for the
previous calendar year. FTA requires that transit systems use the
Standard Management Information System (MIS) reports found in the
back of the regulations. To avoid reporting problems, FTA
provides the following guidance. Only FTA forms can be used. Do
not alter the forms. Computerized replicas of the forms are
acceptable. One form must be provided for alcohol and one for
drug test results. Each form submitted must be an original signed
by an authorized official of the transit agency. All forms must
be typed or completed in ink. Each form must be completed in its
entirety. The pre-employment portion of the alcohol form should
be disregarded. EZ forms for alcohol test reporting can only be
used if there were no test results indicating an alcohol
concentration of 0.02 or greater. EZ forms for drug test
reporting can only be used if there were no positive drug tests.
Reports can not be filed by a consortium; individual transit
agencies must submit their own reports. Each of the transit
system's safety-sensitive contractors that fall under these
regulations must complete a set of forms. The transit agency
should bundle these forms along with the transit system's in its
submittal to FTA. The transit agency should not summarize or
co-mingle the results. Likewise, state DOTs should bundle the
forms from each of the programs they administer in their
submissions to FTA. All completed and bundled forms should be
sent to the FTA Office of Safety and Security by March 15.
Agencies that are required to bundle their submittals should
request forms from their contractors or sub-recipients well in
advance to ensure sufficient time for review and a timely
submittal. Likewise, consortium members should request report
data in time to meet the FTA deadlines.
Triennial Review
Compliance with the FTA drug and
alcohol testing program has been included as one of the elements
that is assessed during the triennial review process. The review
addresses certification and annual reporting, policy, and
record-keeping. To prepare for this portion of the review,
transit systems must be able to satisfactorily address the
following items: Have the annual MIS reports been filed with the
FTA? Is there a policy in place including all required elements?
Are records maintained in a secured location with controlled
access? Has it been clearly defined to whom test results may be
released? Is the required testing being performed for all
categories? Are approved USDOT Drug Testing Custody and Control
Forms being used? Are approved USDOT Breath Alcohol Testing Forms
being used? Are the laboratories used certified by the DHHS? Is
the MRO a licensed physician with appropriate medical training
and knowledge of substance abuse disorders? Does the SAP meet
minimum requirements for licensing and clinical experience? Are
employees with positive drug or alcohol tests referred to the SAP
for evaluation? Is a NHTSA approved EBT used for confirmatory
alcohol testing? Have BATs been trained on a NHTSA approved
course of instruction? Have all safety-sensitive employees been
given 60 minutes of training on illegal drug use awareness? Have
supervisors received reasonable suspicion training: a minimum of
60 minutes on drugs and 60 minutes on alcohol?
FTA Oversight Audits
In addition to Triennial
Reviews, FTA will also be performing field audits on selected
transit systems. Systems will be selected for an audit if
problems are identified through MIS reports, triennial reviews,
hotline tips, or media coverage. Other systems may be selected on
a random basis.
Questions and Answers
Q. Is the employer compelled
to pay for an employee's SAP evaluation?
A. No. The regulations are
silent regarding who pays for the SAP evaluation, leaving the
decision up to individual employers and/or labor-management
negotiations, if applicable. A review of industry practice
indicates that costs are commonly paid by either the employer,
employee, or employee's insurance carrier.
Q. When does the employee
training have to occur for new hires?
A.The 60 minutes of training
on the effects and consequences of prohibited drug use must be
provided to all new hires prior to the performance of
safety-sensitive job functions. It is recommended that this
training be included as part of the initial employee orientation
training. Reasonable Suspicion training of supervisors must be
conducted before they can make Reasonable Suspicion referrals.
Definition of Supervisor
The drug and alcohol
testing regulations stipulate that only a trained supervisor can
make reasonable suspicion determinations. The term supervisor
refers to job function rather than job title. Depending on the
organization, a number of individuals with varying job titles
could serve in a supervisory capacity. Each of these individuals
should receive reasonable suspicion training and be empowered to
take action when they make specific, articulable and
contemporaneous observations of the appearance, speech, behavior,
or body odor of the employee that are consistent with probable
drug abuse or alcohol misuse. The decision to test can only be
made by trained individuals that directly observe the employee.
Organizations that require other upper management personnel
(i.e., Director of Personnel), to make the final testing
determination are in violation of this regulation unless the
person making the final determination has also been appropriately
trained and has observed the employee. The supervisor that makes
the actual observation does not have to be the employee's direct
supervisor, but can be any trained supervisor within the
organization.
Pre-employment
Test Following Leave
The drug testing
regulation require that a pre-employment drug test be conducted
before an applicant is hired to perform a safety-sensitive job
function, or before an employee is transferred into a
safety-sensitive position.
In instances
where a person is on temporary leave (i.e., vacation, sick, jury
duty) no pre-employment test is required before the individual
can resume their safety-sensitive duties. However, in instances
where the individual's status within the agency changes or is
reclassified (i.e., seasonal layoff, leave of absence, out or
reassigned for worker's compensation), a pre-employment test is
required prior to reassignment to a safety-sensitive job
function.
Chain of
Custody and Control Forms
The Chain of
Custody and Control (CoC) Form that accompanies each urine
specimen through the testing process serves as a vital piece of
documentation that must be accurately and completely filled out.
This form is used to document the exchanges of the specimen from
the time of production by the donor until the test is completed.
Since the form documents the chain of custody and serves as legal
evidence that the reported test results apply to the donor, the
employee should not have sole access to the form at any time and
especially prior to the test. Rather, the CoC forms should only
be available to the collection site and lab personnel and the
MRO. By limiting access to the forms, the opportunity for
tampering or altering the forms prior to the test is minimized.
The employee will be provided with their copy of the form once
the collection process has been completed.
Correction
The article on pre-employment drug
testing found on Page 2 of the Spring 1996 issue of the Updates
incorrectly stated that a negative pre-employment drug test
result was required before an individual can perform a
safety-sensitive job function. Instead, the article should have
stated that an applicant must receive a negative pre-employment
drug test before they are hired to perform safety-sensitive job
functions.
Back to Table of Contents for FTA Drug
and Alcohol Regulation Updates.
Back to Public Transportation and
Rail Division Welcome page.
Back Washington State
Department of Transportation home page.
If you have questions or comments regarding this information,
please contact Pam Hughley
, Technical Assistance and Compliance Manager.
This page maintained by Rachel
Stewart.
[Getting
There] [General
Information] [Industry Information] [Contact Us] [Home]
pubtran@wsdot.wa.gov