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QUESTION

REGULATORY CITATION

APPROPRIATENESS OF RECORDS MAINTENANCE:

Does the auditor observe that a set of records has been established with the following characteristics:

1) Secure location and access controlled to those few individuals with a need to know;

2) Information released only as appropriate;

3) Federally required tests and testing has priority and is separate from non-DOT testing;

4) Records are maintained for the proper length of time.

Does the employer maintain records of its anti-drug and alcohol misuse program in a secure location with controlled access?

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.”

Does the employer only release drug and alcohol testing information related to covered employees as permitted by law or in accordance with the circumstances described in Section 655.73?

Section 655.73(a) states: “Except as required by law, or expressly authorized or required in this section, no employer may release information pertaining to a covered employee that is contained in records required to be maintained by Section 655.71 of this subpart.”

Are DOT tests completely separate from non-DOT tests in all respects, and do DOT tests take priority (i. e. DOT tests conducted and completed before a non-DOT test is begun, urine collected in a DOT test not used for a non-DOT test)?

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

Section 40.13(b) states: “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.”

Are the following records maintained for a minimum of five years from the date of creation:

(1) covered employee verified positive drug and alcohol test results;

(2) documentation of refusals to take required drug or alcohol tests;

(3) covered employee referrals to the SAP;

(4) employer reports from SAPs; and

(5) copies of annual MIS reports submitted to FTA?

Section 655.71(b)(1) states: “Records of covered employee verified positive drug or alcohol test results, documentation of refusals to take required drug or alcohol tests, and covered employee referrals to the substance abuse professional, and copies of annual MIS reports submitted to FTA [must be maintained for five years].”

Section 40.311(h) states: “As an employer, you must maintain your reports from SAPs for 5 years from the date you received them.”

Does the employer maintain for three years all drug and alcohol test results obtained from previous employers for new hirers or transfers into safety-sensitive positions?

Section 40.333(a)(2) states: “You must keep records for three years of information obtained from previous employers under Section 40.25 concerning drug and alcohol test results of employees.”

Does the employer maintain records of the collection process and employee training for at least two years?

Section 655.71(b)(2) states: “Records related to the collection process and employee training [must be maintained for two years].”

Does the employer maintain negative drug and alcohol test results for at least one year?

Section 655.71(b)(3) states: “Records of negative drug or alcohol test results [must be maintained for one year].”

EMPLOYEE AND SUPERVISOR TRAINING:

Do the records indicate that the employer complies with the employee and supervisor education and training requirements, including:

1) Displaying and distributing drug and alcohol informational material?

2) Providing and documenting 60 minutes of employee drug awareness training?

3) Providing and documenting 120 minutes of supervisor reasonable suspicion drug and alcohol training?

4) Not requiring employees to sign drug and alcohol testing consent forms, except the required "prior employer" records release forms?

Does the employer display and distribute informational material and a community service hot-line telephone number for employee assistance, if available?

Section 655.14 states: “Each employer shall establish an employee education and training program for all covered employees, including:

(a) Education. The education component shall include display and distribution to every covered employee of: informational material and a community service hot-line telephone number for employee assistance, if available.”

Do employees receive at least 60 minutes of training on the effects and consequences of prohibited drug use on personal health, safety, and the work environment, and on the signs and symptoms that may indicate prohibited drug use?

Section 655.14 states: “Each employer shall establish an employee education and training program for all covered employees, including:

(b) Training.

(1) Covered employees must receive at least 60 minutes of training on the effects and consequences of prohibited drug use on personal health, safety, and the work environment, and on the signs and symptoms that may indicate prohibited drug use.”

Do supervisors and/or other company officers authorized by the employer to make reasonable suspicion determinations 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?

Section 655.14 states: “Each employer shall establish an employee education and training program for all covered employees, including:

(b) Training.

(2) 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.”

Does the employer require an employee to sign a consent, release, waiver of liability, or indemnification agreement with respect to any part of the drug or alcohol testing process covered by Part 40 (including, but not limited to, collections, laboratory testing, and MRO and SAP services)?

Section 40.27 states: “As an employer, you must not require an employee to sign a consent, release, waiver of liability, or indemnification agreement with respect to any part of the drug or alcohol testing process covered by this part (including, but not limited to, collections, laboratory testing, MRO and SAP services).”

PRE-EMPLOYMENT RECORDS REQUESTS

Does the employer:

1) Obtain a specific written release from applicants for safety-sensitive positions;

2) Request the information from all listed covered employers who employed the individual within the past two years; and

3) Ask the applicant whether they have ever been denied a position on the basis of a positive drug or alcohol test?

Since August 1, 2001, has the employer obtained specific written consent from the applicant or employee to obtain information about prior DOT drug and alcohol test records from all DOT-regulated employers who employed the individual within the two years prior to the date of the application or transfer?

Section 40.25(f) states: “You must provide to each of the employers from whom you request information under Section 40.25(b) written consent for the release of the information cited in Section 40.25(a).”

Does the employer request the following information from the DOT-regulated employers who have employed the applicant or transferee for any period during the two years prior to the date of application or transfer:

(1) Alcohol tests with a result of 0.04 or higher alcohol concentration;

(2) Verified positive drug tests;

(3) Refusals to be tested (including verified adulterated or substituted drug test results);

(4) Other violations of DOT agency drug and alcohol testing regulations; and

(5) With respect to any employee who violated a DOT drug and alcohol regulation, documentation of the employee's successful completion of DOT return-to-duty requirements (including follow-up tests)?

Section 40.25(a) states: “ As an employer, you must, after obtaining an employee's written consent, request the information about the employee listed in Section 40.25(b).

Section 40.25(b) states: “You must request the following information from DOT-regulated employers who have employed the employee during any period during the two years before the date of the employee's application or transfer:

(1) Alcohol tests with a result of 0. 04 or higher alcohol concentration;

(2) Verified positive drug tests;

(3) Refusals to be tested (including verified adulterated or substituted drug test results);

(4) Other violations of DOT agency drug and alcohol testing regulations; and

(5) With respect to any employee who violated a DOT drug and alcohol regulation, documentation of the employee's successful completion of DOT return-to-duty requirements (including follow-up tests). If the previous employer does not have information about the return-do-duty process (e. g. , an employer who did not hire an employee who tested positive on a pre-employment test), you must seek to obtain this information from the employee.”

Does the employer ask each applicant or transferee whether he or she has tested positive, or refused a test, on any pre-employment drug or alcohol test administered by an employer to which the applicant or transferee applied for, but did not obtain, safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two years?

Section 40.25(j) states: “As the employer, you must also ask the employee whether he or she has tested positive, or refused to test, on any pre-employment drug or alcohol test administered by an employer to which the employee applied for, but did not obtain, safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two years.”

PRE-EMPLOYMENT TESTING:

Does the auditor observe that the pre-employment testing program has the following characteristics:

1) Notification of FTA authority;

2) Verified negative result is received before the employee performs a safety-sensitive duty (or is hired if the transit system continues with the previous policy);

3) Cancelled tests, if any, must be retaken and passed before the employee performs a safety-sensitive duty (or is placed on the payroll);

4) No more than 90 days between the pre-employment test and the date the employee becomes subject to random testing.

Does the employer, before performing a pre-employment drug or alcohol test under Section 655, notify the covered employee that the test is required under Section 655?

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.”

Does the employer receive a verified negative pre-employment drug test result for each applicant or transferee before the individual performs a safety-sensitive function for the first time?

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.”

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.”

Safety-sensitive function includes the operation of a revenue-service vehicle, whether or not in revenue service. A pre-employment test result must be received before the employee first performs this function in training or as part of a road test.

Do the records indicate that no more than 90 days elapse between the receipt of the negative pre-employment test and the date the employee first performs a safety-sensitive duty and is placed into the random testing pool?

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.”

Do the records indicate that, if a pre-employment drug test is cancelled, the employer requires the covered employee to take another pre-employment drug test administered under this part with a verified negative result?

Section 655.41(c) states: “If a pre-employment drug test is canceled, the employer shall require the covered employee or applicant to take another pre-employment drug test administered under this part with a verified negative result.”

If the employer chooses to conduct pre-employment alcohol testing, does the employer conduct all pre-employment alcohol tests using the alcohol testing procedures set forth in 49 CFR Part 40?

Section 655.42(d) states: “The employer must conduct all pre-employment alcohol tests using the alcohol testing procedures set forth in 49 CFR Part 40.”

REASONABLE SUSPICION TESTING:

Do the records of Reasonable Suspicion testing indicate that the tests were properly ordered by trained supervisors?

Do the records indicate that the employer's determination, that reasonable suspicion existed to warrant testing, was based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the covered employee?

Section 655.43(b) states: “An employer's determination that reasonable suspicion exists shall be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the covered employee. A supervisor(s), or other company official(s) who is trained in detecting the signs and symptoms of drug use and alcohol misuse must make the required observations.”

Do the records indicate that all reasonable suspicion tests were ordered by supervisor(s), or other company official(s) trained in detecting the signs and symptoms of drug use and alcohol misuse?

Section 655.14(b)(2) states: “Supervisors. 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.”

Do the records indicate that if the reasonable suspicion alcohol test was not administered within two hours, there is a record stating the reasons the alcohol test was not promptly administered? If a reasonable suspicion alcohol test is not administered within eight hours, does the employer cease attempts to administer an alcohol test and state in the record the reasons for not administering the test?

Section 655.43(d) states: “If an alcohol test required by this section is not administered within two hours following the determination [to test], the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. If an alcohol test required by this section is not administered within eight hours following the determination [to test], the employer shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test.”

POST-ACCIDENT TESTING:

Do the records indicate that the post-accident testing program has the following characteristics:

1) Proper observance of FTA testing thresholds;

2) Proper notification of test authority;

3) Proper use of the federal CCF;

4) Testing completed within the required time limits or records maintained of testing efforts.

Do the records indicate that the employer performs an FTA post-accident test after an accident when an individual dies, regardless of whether the operator's performance can be completely discounted as a possibly contributing factor?

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.”

Do the records show that the employer conducts FTA post-accident testing after non-fatal accidents that reach an FTA post-accident testing threshold, unless the operator's performance can be completely discounted as a contributing factor to the accident?

Section 655.44(a)(2)(i) states: “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 each covered employee operating the mass transit vehicle at the time of the accident unless the employer determines, using the best information available at the time of the decision, that the covered employee's performance can be completely discounted as a contributing factor to the accident.”

Do any records indicate that the employer conducts post-accident testing using a federal CCF after an accident that does not meet an FTA post-accident threshold?

Section 40.13(f) states: “As an employer, you must not use the CCF or the ATF 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.”

An “Accident” is defined in Section 655.4 as: “an occurrence associated with the operation of a vehicle, if as a result:

(1) An individual dies; or

(2) An individual suffers bodily injury and immediately receives medical treatment away from the scene of the accident; or

(3) With respect to an occurrence in which the mass transit vehicle involved is a bus, electric bus, van, or automobile, one or more vehicles (including non-FTA funded vehicles) incurs disabling damage as the result of the occurrence and such vehicle or vehicles are transported away from the scene by a tow truck or other vehicle; or

(4) With respect to an occurrence in which the mass transit vehicle involved is a rail car, trolley car, trolley bus, or vessel, the mass transit vehicle is removed from operation”

Do the records indicate that the employer tests other covered employees whose performance could have contributed to a fatal or non-fatal accident?

Section 655.44(a)(ii) states: “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.”

Is the decision not to administer a post-accident drug and/or alcohol test documented in detail, including the decision-making process used to reach the decision not to test, in an accident where an FTA post-accident testing threshold was met?

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.”

If a post-accident alcohol test is not administered within two hours following the accident, does the employer prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered?

Section 655.44(a)(2)(ii) states: “If an alcohol test required by this section is not administered within two hours following the accident, the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. . .”

If a post-accident alcohol test is not administered within eight hours following the accident, does the employer cease attempts to administer an alcohol test and maintain the record?

Section 655.44(a)(2)(ii) states: “. . . If an alcohol test required by this section is not administered within eight hours following the accident, the employer shall cease attempts to administer an alcohol test and maintain the record. Records shall be submitted to FTA upon request of the Administrator.”

Is a covered employee who is required to be drug tested after an accident tested as soon as practicable, but within 32 hours of the accident?

Section 655.44(b) states: “An employer shall ensure that a covered employee required to be drug tested under this section is tested as soon as practicable but within 32 hours of the accident.”

If a covered employee who is subject to post-accident testing fails to remain readily available for such testing, is the employee deemed by the employer to have refused to submit to testing?

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.”

If the employer is unable to perform a post-accident test within the required timeframe and the employer uses the results of a blood, urine, or breath test conducted by Federal, State, or local officials having independent authority for the test, do such tests conform to the applicable Federal, State, or local testing requirements, and are the test results obtained by the employer?

Section 655.44(f) states: “The results of a blood, urine, or breath test for the use of prohibited drugs or alcohol misuse, conducted by Federal, State, or local officials having independent authority for the test, shall be considered to meet the requirements of this section provided such test conforms to the applicable Federal, State, or local testing requirements, and that the test results are obtained by the employer. Such test results may be used only when the employer is unable to perform a post-accident test within the required period noted in [Sections 655.44(a) and (b)].”

RANDOM TESTING:

Do the records indicate that random testing has the required characteristics:

1) Draws are made frequently enough;

2) Testing is spread reasonably;

3) Method is scientifically valid;

4) Notices are held confidentially;

5) Employees proceed immediately;

6) Excusals are valid and recorded.

Has the employer met the minimum annual percentage rate for random drug testing of 50 percent of covered employees and the random alcohol testing rate of 10 percent of covered employees?

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.”

Is the selection of employees for random drug and alcohol testing 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 number?

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.”

Does the selection process used provide each covered employee with an equal chance of being tested each time selections are made?

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.”

Are random drug and alcohol tests unpredictable - e. g. , the dates for administering random tests are spread reasonably throughout the calendar year?

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.”

Are random drug and alcohol tests unpredictable - e. g. , the tests are conducted at all times of the day when safety sensitive functions are performed?

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.”

Are random drug and alcohol tests unpredictable - e. g. , the tests are conducted on all days of the week when safety sensitive functions are performed?

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.

Section 655 regulatory commentary: "FTA reiterated in the NPRM that a primary purpose of random testing is deterrence. Deterrence is most effectively achieved with random, unpredictable drug and alcohol testing that is conducted throughout all workdays and hours of service.”

Do the records indicate that all covered employees are proceeding to the collection site immediately upon notification of their selection for a random drug and/or alcohol 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.”

Are records of excusals maintained, and do the records indicate that employees are only excused from random testing for legitimate reasons (e.g., on vacation, out sick)?

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.”

ACTIONS AFTER NON-NEGATIVE TEST RESULTS:

Do the records indicate that for each non-negative or refused drug or alcohol test result: