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REGULATORY CITATIONS

TO START OFF, I WOULD LIKE TO ASK A FEW QUESTIONS ABOUT THE REGULATIONS

Do you have in your possession, or access to, a current copy of the Federal Transit Administration drug and alcohol testing regulations 49 CFR Part 655 – Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations (published August 9, 2001)?

Section 655.11 states: “Each employer shall establish an anti-drug use and alcohol misuse program consistent with the requirements of this part.”

The DAPM should have available 49 CFR Part 655 to use as a resource in complying with the FTA drug and alcohol testing requirements.

Do you have in your possession, or access to, a current copy of the DOT drug and alcohol testing regulations 49 CFR Part 40 - Procedures for Transportation Workplace Drug and Alcohol Testing Programs (published December 19, 2000 and amended August 9, 2001) ?

Section 40.11(a) states: “As an employer, you are responsible for meeting all applicable requirements and procedures of this part.”

In order to fully comply with Section 40.11, the DAPM should have available Part 40 to use as a resource.

NOW, I WOULD LIKE TO ASK SOME QUESTIONS ABOUT YOUR POLICIES AND PROCEDURES.

Does this transit system maintain a record that each employee has received a copy of the anti-drug and alcohol misuse policy, or a written notice that the policy is available for review?

Section 655.15 states: “The local governing board of the employer or operator shall adopt an anti-drug and alcohol misuse policy statement. The statement must be made available to each covered employee . . .”

Section 655.16 states: “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.”

Were the actual job duties at this transit system reviewed to decide who performed safety-sensitive functions?

Section 655.15 states: “. . .The [policy] statement must be made available to each covered employee, and shall include the following: . . .

(b) The categories of employees who are subject to the provisions of this part.”

Section 655.4 defines “covered employee” as “a person, including an applicant or transferee, who performs or will perform a safety-sensitive function for an entity subject to this part.”

Does this transit system conduct non-DOT drug and/or alcohol testing under its own authority, for instance, post-accident testing in situations not required by FTA or pre-employment testing for everybody, including clerical workers?

Section 655.15 states: “Policy Statement contents. . . . The statement must be made available to each covered employee, and shall include the following: . . .

(j) The employer shall inform each covered employee if it implements elements of an anti-drug use or alcohol misuse program that are not required by this part. An employer may not impose requirements that are inconsistent with, contrary to, or frustrate the provisions of this part.”

Section 40.13 states: “(a) DOT tests must be completely separate from non-DOT tests in all respects.

(b) DOT tests must take priority and must be conducted and completed before a non-DOT test is begun. For example, you must discard any excess urine left over from a DOT test and collect a separate void for the subsequent non-DOT test.

(c) Except as provided in paragraph (d) of this section, you must not perform any tests on DOT urine or breath specimens other than those specifically authorized by this part or DOT agency regulations. For example, you may not test a DOT urine specimen for additional drugs, and a laboratory is prohibited from making a DOT urine specimen available for a DNA test or other types of specimen identity testing.”

How does this transit system ensure that Federal Drug Testing Custody and Control Forms (CCF) and DOT Alcohol Testing Forms (ATF) are not used for non-DOT tests?

Section 40.13(f) states: “As an employer, you must not use the CCF [Federal Drug Testing Custody and Control Form] or the ATF [The DOT Alcohol Testing Form] in your non-DOT drug and alcohol testing programs. This prohibition includes the use of the DOT forms with references to DOT programs and agencies crossed out. You also must always use the CCF and ATF for all your DOT-mandated drug and alcohol tests.”

Before performing a drug or alcohol test, how does the transit system inform each employee of the testing authority (i.e., FTA authority, transit system authority)?

Section 655.17 states: “Before performing a drug or alcohol test under this part, each employer shall notify a covered employee that the test is required by this part. No employer shall falsely represent that a test is administered under this part.”

What arrangements have been made to conduct drug and alcohol tests after normal business hours and on weekends?

Section 655.45(g) states: “Each employer shall ensure that random drug and alcohol tests conducted under this part are unannounced and unpredictable, and that the dates for administering random tests are spread reasonably throughout the calendar year. Random testing must be conducted at all times of day when safety-sensitive functions are performed.”

Have all transit system officials and supervisors authorized to make FTA reasonable suspicion testing referrals received appropriate training (at least 60 minutes of training on the indicators of probable drug use; and 60 minutes of training on the indicators of probable alcohol misuse)?

Section 655.14(b)(2) states: “Supervisors and/or other company officers authorized by the employer to make reasonable suspicion determinations shall receive at least 60 minutes of training on the physical, behavioral, and performance indicators of probable drug use and at least 60 minutes of training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse.

How do you document that all employees authorized to make FTA reasonable suspicion testing referrals have received training, and how long do you maintain those records ?

Section 655.71(c) states: “The following specific records must be maintained: . . .

(4) Records related to employee training: . . .

(iii) Documentation of training provided to supervisors for the purpose of qualifying the supervisors to make a determination concerning the need for drug and alcohol testing based on reasonable suspicion.”

Section 655.71(b) states: “In determining compliance with the retention period requirement, each record shall be maintained for the specified minimum period of time as measured from the date of the creation of the record. Each employer shall maintain the records in accordance with the following schedule: . . .

(2) Two years. Records related to the collection process and employee training.”

NOW, I WOULD LIKE TO ASK SOME QUESTIONS ABOUT THE PRE-EMPLOYMENT DRUG TESTING PROCESS.

At what point in the hiring process do you require applicants for safety-sensitive positions to pass a FTA pre-employment drug test?

Section 655.41(a)(1) states: “Before allowing a covered employee or applicant to perform a safety-sensitive function for the first time, the employer must ensure that the employee takes a pre-employment drug test administered under this part with a verified negative result. An employer may not allow a covered employee, including an applicant, to perform a safety-sensitive function unless the employee takes a drug test administered under this part with a verified negative result.”

Who is responsible for ensuring that employees who transfer internally to safety-sensitive positions pass a FTA pre-employment drug test before performing safety-sensitive functions?

Section 655.41(b) states: “An employer may not transfer an employee from a non-safety-sensitive function to a safety-sensitive function until the employee takes a pre-employment drug test administered under this part with a verified negative result.”

Who is responsible for ensuring that safety-sensitive employees who have not been in the random testing pool for 90 consecutive days or more pass a pre-employment drug-screening test before performing safety-sensitive functions?

Section 655.41(d) states: “When a covered employee or applicant has not performed a safety-sensitive function for 90 consecutive calendar days regardless of the reason, and the employee has not been in the employer’s random selection pool during that time, the employer shall ensure that the employee takes a pre-employment drug test with a verified negative result.”

NOW, I WOULD LIKE TO ASK A FEW QUESTIONS ABOUT THE RANDOM SELECTION PROCESS.

How does this transit system maintain up-to-date lists of safety-sensitive employees subject to random testing?

Section 655.45(e) states: “Under the selection process used, each covered employee shall have an equal chance of being tested each time selections are made.”

The requirement of Section 655.45(e) that “each covered employee shall have an equal chance of being tested each time selections are made” can only be met by the transit system if all employees performing safety-sensitive duties are included in the random testing pool each time random selections are made.

Does this transit system employ a seasonal workforce, and if so, do you remove or maintain seasonal employees in the random testing pool when they are not working?

Section 655.41(d) states: “When a covered employee or applicant has not performed a safety-sensitive function for 90 consecutive calendar days regardless of the reason, and the employee has not been in the employer’s random selection pool during that time, the employer shall ensure that the employee takes a pre-employment drug test with a verified negative result.”

Does this transit system randomly test non-safety-sensitive employees under its own authority?

Section 655.45(a) states “Except as provided in paragraphs (b) through (d) of this section, the minimum annual percentage rate for random drug testing shall be 50 percent of covered employees; the random alcohol testing rate shall be 10 percent. As provided in paragraph (b) of this section, this rate is subject to annual review by the Administrator.”

The requirement of Section 655.45(a) that "minimum annual percentage rate for random drug testing shall be 50 percent of covered employees”, can only be assured if the pool contains only covered employees.

Moreover, Section 40.347(b)(2), covering the operations of C/TPAs, explicitly states: ”Employees not covered by DOT agency regulations may not be part of the same random pool with DOT covered employees.”

Does this transit system or the C/TPA maintain safety-sensitive and non-safety sensitive employees in separate random testing pools?

Section 655.45(a) states “Except as provided in paragraphs (b) through (d) of this section, the minimum annual percentage rate for random drug testing shall be 50 percent of covered employees; the random alcohol testing rate shall be 10 percent. As provided in paragraph (b) of this section, this rate is subject to annual review by the Administrator.”

The requirement of Section 655.45(a) that "minimum annual percentage rate for random drug testing shall be 50 percent of covered employees", can only be assured if the pool contains only covered employees.

Moreover, Section 40.347(b)(2), covering the operations of C/TPAs, explicitly states: ”Employees not covered by DOT agency regulations may not be part of the same random pool with DOT covered employees.”

What random selection method is used by this transit system to select employees for FTA drug and alcohol testing?

Section 655.45(e) states: “The selection of employees for random drug and alcohol testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with employees' Social Security numbers, payroll identification numbers, or other comparable identifying numbers. Under the selection process used, each covered employee shall have an equal chance of being tested each time selections are made.”

How frequently does this transit system or the C/TPA make random selections?

Section 655.45(e) states: “. . . Under the selection process used, each covered employee shall have an equal chance of being tested each time selections are made.”

Generating random selection lists infrequently increases the chance that employee turnover will make meeting Section 655.45(e) unattainable because the transit system does not have an effectively updated testing pool.

The preamble to Part 655 states: “FTA believes that the public safety interest is promoted with random testing that is truly random and unpredictable. However, FTA believes that requiring random testing to be conducted at least quarterly strikes a reasonable balance while considering the rule's impact on employers in rural areas.”

How does this transit system ensure that random selection lists are not accessed by unauthorized individuals?

Section 655.71(a) states: “An employer shall maintain records of its anti-drug and alcohol misuse program as provided in this section. The records shall be maintained in a secure location with controlled access.”

To ensure that the random testing process is not compromised, random testing lists should be transmitted by a secure means and only to individuals authorized to receive such information.

Does this transit system conduct random testing on all work days, including holidays?

Section 655.45(g) states: “Each employer shall ensure that random drug and alcohol tests conducted under this part are unannounced and unpredictable, and that the dates for administering random tests are spread reasonably throughout the calendar year. Random testing must be conducted at all times of day when safety-sensitive functions are performed.”

Does this transit system conduct random testing during all work shifts (i.e., during all hours of operations)?

Section 655.45(g) states: “Each employer shall ensure that random drug and alcohol tests conducted under this part are unannounced and unpredictable, and that the dates for administering random tests are spread reasonably throughout the calendar year. Random testing must be conducted at all times of day when safety-sensitive functions are performed.”

After being informed of the test requirement, how much time does an employee have to report to the collection site for a FTA random test?

Section 655.45(h) states: “Each employer shall require that each covered employee who is notified of selection for random drug or random alcohol testing proceed to the test site immediately. If the employee is performing a safety-sensitive function at the time of the notification, the employer shall instead ensure that the employee ceases to perform the safety-sensitive function and proceeds to the testing site immediately.”

Who decides that an employee may be legitimately excused from random testing, and what are valid reasons?

Section 655.45(e) states: “. . . Under the selection process used, each covered employee shall have an equal chance of being tested each time selections are made.”

The requirements in Section 655.45(e) can not be met if employees can be excused when they are legitimately at the work site and available for testing. A valid excusal from testing can result if an employee is not working the day of the test (e.g., vacation, long term disability, illness). Excused employees must be tested when they return to work provided the employee returns before the next random selection list is generated. For instance, if a new list is generated each week, the old list expires when the new list arrives. Likewise if a new list is generated each month or each quarter, the previous list expires when the new list is provided.

If an employee selected for an FTA random drug and/or alcohol test is not available on the test day, do you keep a record of why the individual was not available on the test day?

Section 655.45(e) states: “. . . Under the selection process used, each covered employee shall have an equal chance of being tested each time selections are made”

Written explanations for why employees are excused from testing ensure there is no bias in the random selection process.

Section 655.71(c) states: “The following specific records must be maintained:

(1) Records related to the collection process: . . .

(ii) Documents relating to the random selection process.”

Do you have a way to know if the employee arrived at the collection site in a timely manner?

For, instance, does the collection site know who is coming for a test and when that individual should arrive?

Section 655.45(h) states: “Each employer shall require that each covered employee who is notified of selection for random drug or random alcohol testing proceed to the test site immediately.”

Section 40.191(a) states: “As an employee, you have refused to take a drug test if you fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer.“

Section 40.61(a) states: “As the collector, you must take the following steps before actually beginning a collection: When a specific time for an employee's test has been scheduled, or the collection site is at the employee's work site, and the employee does not appear at the collection site at the scheduled time, contact the DER to determine the appropriate interval within which the DER has determined the employee is authorized to arrive. If the employee's arrival is delayed beyond that time, you must notify the DER that the employee has not reported for testing.”

After the testing is complete, does this transit system maintain a copy of each random selection draw list (e.g., paper copy, electronic file)?

Section 655.71(c) states: “The following specific records must be maintained:

(1) Records related to the collection process:

(i) Collection logbooks. if used.

(ii) Documents relating to the random selection process.”

NOW, I WOULD LIKE TO ASK SOME QUESTIONS ABOUT POST-ACCIDENT TESTING.

Are you notified of accidents that might necessitate post-accident testing?

Section 40.3 defines “Designated employer representative (DER)” as “An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs.”

Who has the primary responsibility for assuring that post-accident testing is accomplished?

Section 40.3 defines “Designated employer representative (DER)” as “An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs.”

Who is responsible for documenting the decision-making process when a decision is made that post-accident testing is not required?

Section 40.3 defines “Designated employer representative (DER)” as “An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs.”

Section 655.44(d) states: “The decision not to administer a drug and/or alcohol test under this section shall be based on the employer's determination, using the best available information at the time of the determination that the employee's performance could not have contributed to the accident. Such a decision must be documented in detail, including the decision-making process used to reach the decision not to test.”

Does the transit system use the federal (DOT) custody and control forms for post-accident testing only when an FTA testing threshold has been met, and a non-DOT form for all other post-accident testing?

Section 40.47(a) states: “. . . as an employer, you are prohibited from using the CCF for non-DOT urine collections. You are also prohibited from using non-Federal forms for DOT urine collections. Doing either subjects you to enforcement action under DOT agency regulations.”

Section 40.227(a) states: “. . . as an employer, BAT, or STT, you are prohibited from using the ATF for non-DOT alcohol tests. You are also prohibited from using non-DOT forms for DOT alcohol tests. Doing either subjects you to enforcement action under DOT agency regulations.”

Does this transit system have some method to document the post-accident decision-making process, especially decisions not to conduct a drug and alcohol test following an accident that reaches an FTA threshold?

Section 655.44(d) states: “The decision not to administer a drug and/or alcohol test under this section shall be based on the employer's determination, using the best available information at the time of the determination that the employee's performance could not have contributed to the accident. Such a decision must be documented in detail, including the decision-making process used to reach the decision not to test.”

Section 655.71(c) states: “The following specific records must be maintained:

(1) Records related to the collection process: . . .

(iv) Documents generated in connection with decisions on post-accident drug and alcohol testing.”

If a DOT drug and/or alcohol testing form is not used for a FTA post-accident test, do you know what the regulations require you to do to correct this flaw?

Section 40.205(b)(2) states: “If the problem is the use of a non-Federal form or an expired Federal form, you must provide a signed statement (i.e., a memorandum for the record). It must state that the incorrect form contains all the information needed for a valid DOT drug test, and that the incorrect form was used inadvertently or as the only means of conducting a test, in circumstances beyond your control. The statement must also list the steps you have taken to prevent future use of non-Federal forms or expired Federal forms for DOT tests. . . . You must supply this information on the same business day on which you are notified of the problem, transmitting it by fax or courier.”

Section 40.271(b)(2) provides similar requirements for correcting flaws in breath alcohol testing.

Whose responsibility is it to decide whether or not a FTA drug and alcohol post-accident test should be performed if there is a fatality in the accident?

Section 655.44(a) states: “(1) Fatal accidents.

(i) As soon as practicable following an accident involving the loss of human life, an employer shall conduct drug and alcohol tests on each surviving covered employee operating the mass transit vehicle at the time of the accident. Post-accident drug and alcohol testing of the operator is not required under this section if the covered employee is tested under the fatal accident testing requirements of the Federal Motor Carrier Safety Administration rule 49 CFR 389.303(a)(1) or (b)(1).”

No discretion is permitted by FTA in determining if a surviving employee is to be post-accident tested after an accident involving a fatality.

Who determines if a FTA post-accident testing threshold has been reached after an accident?

Section 40.3 defines “Designated employer representative (DER)” as “An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs.”

Section 655.44(d) states: “The decision not to administer a drug and/or alcohol test under this section shall be based on the employer's determination, using the best available information at the time of the determination that the employee's performance could not have contributed to the accident. Such a decision must be documented in detail, including the decision-making process used to reach the decision not to test.”

Can you explain the term ‘disabling damage’ as it relates to post-accident testing?

Section 655.4 defines the term “Disabling damage” as “damage that precludes departure of a motor vehicle from the scene of the accident in its usual manner in daylight after simple repairs.

(1) Inclusion. Damage to a motor vehicle, where the vehicle could have been driven, but would have been further damaged if so driven.

(2) Exclusions. (i) Damage that can be remedied temporarily at the scene of the accident without special tools or parts.

(ii) Tire disablement without other damage even if no spare tire is available.

(iii) Headlamp or tail light damage.

(iv) Damage to turn signals, horn, or windshield wipers, which makes the vehicle inoperable.”

In addition to the driver of a transit vehicle, can other covered employees be post-accident tested under FTA authority? If so, under what circumstances?

Section 655.44(a) states: “(1) Fatal accidents. . .

(ii) The employer shall also drug and alcohol test any other covered employee whose performance could have contributed to the accident, as determined by the employer using the best information available at the time of the decision.”

Section 655.44(a) states: “(2) Nonfatal accidents.

(i) ... The employer shall also drug and alcohol test any other covered employee whose performance could have contributed to the accident, as determined by the employer using the best information available at the time of the decision.”

Can an FTA post-accident drug test be performed on an employee who is unable to give consent due to death or unconsciousness?

Section 655.44(a)(1)(i) states: “As soon as practicable following an accident involving the loss of human life, an employer shall conduct drug and alcohol tests on each surviving covered employee operating the mass transit vehicle at the time of the accident.”

Section 40.61(b)(3) states: “You [the collector] must not collect, by catheterization or other means, urine from an unconscious employee to conduct a drug test under this part. Nor may you catheterize a conscious employee. . . .”

When would you commence drug and alcohol testing after an accident?

Section 655.44(a) states: “(1) Fatal accidents. (i) As soon as practicable following an accident involving the loss of human life, an employer shall conduct drug and alcohol tests ...”

(2) Nonfatal accidents. (i) As soon as practicable following an accident not involving the loss of human life in which a mass transit vehicle is involved, the employer shall drug and alcohol test ...”.

Section 655.44(e) further states: “Nothing in this section shall be construed to require the delay of necessary medical attention for the injured following an accident or to prohibit a covered employee from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident or to obtain necessary emergency medical care.”

What would be the result if an employee fails to remain “readily available” for testing after an accident?

Section 655.44(c) states: “A covered employee who is subject to post-accident testing who fails to remain readily available for such testing, including notifying the employer or the employer representative of his or her location if he or she leaves the scene of the accident prior to submission to such test, may be deemed by the employer to have refused to submit to testing.”

NOW, I WOULD LIKE TO ASK A FEW QUESTIONS ABOUT RETURN-TO-DUTY AND FOLLOW-UP TESTING

Does this transit system maintain a list of qualified SAPs readily available to assist employees?

Section 655.62(a) states: “If a covered employee has a verified positive drug test result, or has a confirmed alcohol test of 0.04 or greater, or refuses to submit to a drug or alcohol test required by this part, the employer shall advise the employee of the resources available for evaluating and resolving problems associated with prohibited drug use and alcohol misuse, including the names, addresses, and telephone numbers of substance abuse professionals (SAPs) and counseling and treatment programs.”

Section 40.287 states: “As an employer, you must provide to each employee (including an applicant or new employee) who violates a DOT drug and alcohol regulation a listing of SAPs readily available to the employee and acceptable to you, with names, addresses, and telephone numbers. You cannot charge the employee any fee for compiling or providing this list. You may provide this list yourself or through a C/TPA or other service agent.”

Who would be the person responsible for ensuring that an employee who had a positive drug or alcohol test, or refused a test, was referred to the Substance Abuse Professional for an evaluation, even if the employee is not eligible for reinstatement?

Section 655.62(a) states: “If a covered employee has a verified positive drug test result, or has a confirmed alcohol test of 0.04 or greater, or refuses to submit to a drug or alcohol test required by this part, the employer shall advise the employee of the resources available for evaluating and resolving problems associated with prohibited drug use and alcohol misuse, including the names, addresses, and telephone numbers of substance abuse professionals (SAPs) and counseling and treatment programs.”

Does this transit system have a second chance policy for employees who test positive on an FTA drug and/or alcohol test?