how to write a compliant anti-drug and alcohol misuse policy

HOW TO WRITE A HOW TO WRITE A COMPLIANT ANTI-DRUG COMPLIANT ANTI-DRUG AND ALCOHOL MISUSE AND ALCOHOL MISUSE

POLICYPOLICY

Ed VanderPloegEd VanderPloeg

FTA Auditor - Cahill Swift, LLCFTA Auditor - Cahill Swift, LLC

April 16-17, 2014April 16-17, 2014

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IntroductionIntroduction Session topics/formatSession topics/format

Functions of the policyFunctions of the policy Required elements of the policyRequired elements of the policy Mechanics of developing a policyMechanics of developing a policy Policy Review ExercisePolicy Review Exercise Q & A – as we proceed, or at the endQ & A – as we proceed, or at the end

Session goalSession goal Equip everyone in the room to write a Equip everyone in the room to write a

compliant policy, or analyze and fix a compliant policy, or analyze and fix a non-compliant policynon-compliant policy

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Functions of the PolicyFunctions of the Policy Provide clear, concise guidance to Provide clear, concise guidance to

employees regarding the DOT/FTA employees regarding the DOT/FTA substance-abuse prevention programsubstance-abuse prevention program RightsRights 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 Function as a guide for the DAPM for program implementationprogram implementation

Protect the employer in case of employee Protect the employer in case of employee objections/grievance following a positive test objections/grievance following a positive test or other regulatory violationor other regulatory violation

Functions of the Policy Functions of the Policy (cont.)(cont.)

Comply with 49 CFR 655.15 and 655.16Comply with 49 CFR 655.15 and 655.16 Section 655.15: “The local governing board of Section 655.15: “The local governing board of

the employer or operator shall adopt an anti-the employer or operator shall adopt an anti-drug and alcohol misuse policy statement.”drug and alcohol misuse policy statement.”

Section 655.16: “Each employer shall provide Section 655.16: “Each employer shall provide written notice to every covered employee and written notice to every covered employee and to representatives of employee organizations to representatives of employee organizations of the employer’s anti-drug and alcohol misuse of the employer’s anti-drug and alcohol misuse policies and procedures.”policies and procedures.”

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Key Requirements of the Key Requirements of the PolicyPolicy

Describe the categories of Describe the categories of covered employees (i.e., define covered employees (i.e., define safety-sensitive function)safety-sensitive function) Operating a revenue service vehicle, Operating a revenue service vehicle,

whether in or out of servicewhether in or out of service Maintaining a revenue service vehicle or Maintaining a revenue service vehicle or

equipment used in revenue serviceequipment used in revenue service Controlling the dispatch or movement of a Controlling the dispatch or movement of a

revenue service vehiclerevenue service vehicle

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Key Requirements of the Key Requirements of the Policy (cont.)Policy (cont.)

Describe the categories of covered Describe the categories of covered employees (i.e., define safety-sensitive employees (i.e., define safety-sensitive function) – cont.function) – cont. Operating a non-revenue service vehicle that Operating a non-revenue service vehicle that

requires a CDLrequires a CDL Carrying a firearm for security purposesCarrying a firearm for security purposes Volunteers: Must drive a vehicle that requires a Volunteers: Must drive a vehicle that requires a

CDL, or be compensated in excess of actual costs CDL, or be compensated in excess of actual costs incurred, in order to be considered safety-incurred, in order to be considered safety-sensitive.sensitive.

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Describe Prohibited Behaviors - Describe Prohibited Behaviors - DrugsDrugs Employees are prohibited from using the five Employees are prohibited from using the five

listed drugs at all times; an employee may be listed drugs at all times; an employee may be tested for these drugs any time while on dutytested for these drugs any time while on duty

MarijuanaMarijuana CocaineCocaine AmphetaminesAmphetamines OpiatesOpiates PhencyclidinePhencyclidine

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Describe Prohibited Behaviors - AlcoholDescribe Prohibited Behaviors - Alcohol No performance of safety-sensitive function while No performance of safety-sensitive function while

having an alcohol concentration of 0.04 or having an alcohol concentration of 0.04 or greatergreater

No usage four hours before performing, while No usage four hours before performing, while performing, or while on-call to perform a safety-performing, or while on-call to perform a safety-sensitive dutysensitive duty

No usage for eight hours following an accident or No usage for eight hours following an accident or until a post-accident alcohol test is performeduntil a post-accident alcohol test is performed

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Describe Circumstances of TestingDescribe Circumstances of Testing Pre-EmploymentPre-Employment RandomRandom Post-AccidentPost-Accident Reasonable SuspicionReasonable Suspicion Return-to-Duty / Follow-UpReturn-to-Duty / Follow-Up State that random & reasonable suspicion State that random & reasonable suspicion alcoholalcohol

testing is only permissible just before performing a testing is only permissible just before performing a safety-sensitive function, during that performance, safety-sensitive function, during that performance, or just after that performanceor just after that performance


Pre-Employment TestingPre-Employment Testing Verified negative test result required before first Verified negative test result required before first

performance of safety-sensitive dutyperformance of safety-sensitive duty If out of safety-sensitive duty for 90+ days and out If out of safety-sensitive duty for 90+ days and out

of random pool, a DOT pre-emp test with verified of random pool, a DOT pre-emp test with verified negative result required before resuming SS dutynegative result required before resuming SS duty

Applicant who previously failed or refused a DOT Applicant who previously failed or refused a DOT pre-employment test must show evidence of having pre-employment test must show evidence of having completed SAP referral/evaluation/treatment processcompleted SAP referral/evaluation/treatment process

Alcohol testing (if done) will be performed for Alcohol testing (if done) will be performed for allall covered positions and follow Part 40 requirementscovered positions and follow Part 40 requirements

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Random TestingRandom Testing Selections will be made using a scientifically Selections will be made using a scientifically

valid methodvalid method Each employee will have an equal chance of Each employee will have an equal chance of

selection each time selections are made (i.e., selection each time selections are made (i.e., no discretion by supervisors)no discretion by supervisors)

Testing will be unannounced and immediateTesting will be unannounced and immediate Testing will be reasonably spread (i.e., Testing will be reasonably spread (i.e.,

conducted on all days and hours throughout the conducted on all days and hours throughout the year)year)

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Post-Accident Testing - Post-Accident Testing - ThresholdsThresholds Fatality (testing mandatory)Fatality (testing mandatory) Immediate medical treatment away from Immediate medical treatment away from

scene (testing required unless employee scene (testing required unless employee discounted)discounted)

Disabling damage to one or more Disabling damage to one or more vehicles (testing required unless vehicles (testing required unless employee discounted)employee discounted)

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Post-Accident Testing – Post-Accident Testing – RequirementsRequirements Driver, as well as any other covered Driver, as well as any other covered

employee(s) whose performance could have employee(s) whose performance could have contributed to the accident, subject to testingcontributed to the accident, subject to testing

Employee must remain readily available Employee must remain readily available Testing is stayed while employee assists in Testing is stayed while employee assists in

resolution of the accident or receives medical resolution of the accident or receives medical attentionattention

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Reasonable Suspicion TestingReasonable Suspicion Testing Determination will be made by a trained Determination will be made by a trained

supervisorsupervisor Contemporaneous observation of Contemporaneous observation of

physical signs and symptoms of possible physical signs and symptoms of possible drug/alcohol use requireddrug/alcohol use required

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Return-to-Duty and Follow-up Return-to-Duty and Follow-up TestingTesting Will be conducted in accordance with Will be conducted in accordance with

process set forth in Part 40, Subpart Oprocess set forth in Part 40, Subpart O All tests will be conducted under direct All tests will be conducted under direct

observationobservation

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Identify Actions that Constitute a Identify Actions that Constitute a Refusal to TestRefusal to Test Failure to appear in a timely fashion Failure to appear in a timely fashion

(except for pre-employment tests)(except for pre-employment tests) Failure to remain until the testing Failure to remain until the testing

process is completeprocess is complete Failure to attempt to provide a breath or Failure to attempt to provide a breath or

urine specimenurine specimen

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Identify Actions that Constitute a Identify Actions that Constitute a Refusal to Test – cont.Refusal to Test – cont. Failure to provide a sufficient quantity of urine Failure to provide a sufficient quantity of urine

or breath without a valid medical explanationor breath without a valid medical explanation Failure to undergo a medical evaluation as Failure to undergo a medical evaluation as

required by the MRO or DERrequired by the MRO or DER Failure to cooperate with any part of the Failure to cooperate with any part of the

testing processtesting process Failure to permit monitoring or observation Failure to permit monitoring or observation

for drug testingfor drug testing

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Identify Actions that Constitute a Identify Actions that Constitute a Refusal to Test – cont.Refusal to Test – cont. Failure to follow an observer's instructions Failure to follow an observer's instructions

to raise and lower clothing and turn around to raise and lower clothing and turn around during a directly-observed testduring a directly-observed test

Possessing or wearing a prosthetic or other Possessing or wearing a prosthetic or other device used to tamper with the testing device used to tamper with the testing processprocess

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Identify Actions that Constitute a Identify Actions that Constitute a Refusal to Test – cont.Refusal to Test – cont. Failure to take a second test as directed by Failure to take a second test as directed by

the collector or employer for drug testingthe collector or employer for drug testing Admitting the adulteration or substitution of Admitting the adulteration or substitution of

a specimen to the collector or MROa specimen to the collector or MRO Verification of a test by the MRO as Verification of a test by the MRO as

adulterated or substitutedadulterated or substituted

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Identify Actions that Constitute a Identify Actions that Constitute a Refusal to Test – cont.Refusal to Test – cont. Refusal to sign the certification at Step 2 Refusal to sign the certification at Step 2

of the ATFof the ATF Failure to remain readily available Failure to remain readily available

following an accidentfollowing an accident

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Describe Consequences of a Non-Describe Consequences of a Non-Negative Test ResultNegative Test Result Positive or refused drug or alcohol test: Positive or refused drug or alcohol test:

employee will be removed immediately employee will be removed immediately from his or her safety-sensitive function from his or her safety-sensitive function and referred to a qualified substance and referred to a qualified substance abuse professionalabuse professional

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Describe Consequences of a Non-Describe Consequences of a Non-Negative Test Result – cont.Negative Test Result – cont. Alcohol test between 0.02 and 0.039: Alcohol test between 0.02 and 0.039:

employee will be removed immediately employee will be removed immediately from his or her safety-sensitive function from his or her safety-sensitive function for at least 8 hours or until the for at least 8 hours or until the beginning of their next scheduled shift, beginning of their next scheduled shift, whichever is longer, or until a re-test whichever is longer, or until a re-test shows a BAC of less than 0.02shows a BAC of less than 0.02

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Required “Administrative” Elements of Required “Administrative” Elements of a Compliant Policya Compliant Policy List all covered job titles (i.e., safety-sensitive List all covered job titles (i.e., safety-sensitive

positions)positions) Identify the contact person who will answer Identify the contact person who will answer

questions about the drug and alcohol program (by questions about the drug and alcohol program (by name or title/position)name or title/position)

Differentiate FTA requirements from any additional Differentiate FTA requirements from any additional employer-specific elements employer-specific elements

May include Drug Free Workplace Act provisions, May include Drug Free Workplace Act provisions, but they must be so identifiedbut they must be so identified

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Required “Administrative” Elements Required “Administrative” Elements of a Compliant Policy – cont.of a Compliant Policy – cont. Include a statement that all drug and alcohol Include a statement that all drug and alcohol

testing will be conducted in accordance with testing will be conducted in accordance with 49 CFR Part 40 procedures (i.e., protect the 49 CFR Part 40 procedures (i.e., protect the employee and the integrity of testing process)employee and the integrity of testing process)

Include a statement that each covered Include a statement that each covered employee is required to submit to drug and employee is required to submit to drug and alcohol tests administered in accordance with alcohol tests administered in accordance with Part 655Part 655

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Required “Administrative” Elements Required “Administrative” Elements of a Compliant Policy – cont.of a Compliant Policy – cont. Documentation of policy approval/adoption Documentation of policy approval/adoption

(i.e., effective date, signatures)(i.e., effective date, signatures) No provisions in the policy may be No provisions in the policy may be

inconsistent with or have the effect of inconsistent with or have the effect of thwarting the FTA regulationsthwarting the FTA regulations

Documentation of distribution to safety-Documentation of distribution to safety-sensitive employeessensitive employees

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How Long Should the How Long Should the Policy Be?Policy Be?

Long enough to be compliant (i.e., include all Long enough to be compliant (i.e., include all of the elements we’ve discussed thus far).of the elements we’ve discussed thus far).

Good policies can be as short as 12-15 pages Good policies can be as short as 12-15 pages or as long as 50 – it’s all a matter of style.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 Increases the chance that something will be worded

incorrectly or confusingly.incorrectly or confusingly. Decreases the chance that employees will actually Decreases the chance that employees will actually

read it.read it.

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Methods of Developing a Methods of Developing a PolicyPolicy

Start from scratch – the auditors’ Start from scratch – the auditors’ policy review checklist can be found policy review checklist can be found on the FTA website on the FTA website (http://transit-safety.fta.dot.gov/(http://transit-safety.fta.dot.gov/

DrugAndAlcohol/TechnicalAssistance/DrugAndAlcohol/TechnicalAssistance/Checklist/PolicyReqsChecklist.aspx) Checklist/PolicyReqsChecklist.aspx)

Checklist can be used to conduct your Checklist can be used to conduct your own policy review while you writeown policy review while you write

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Methods of Developing a Methods of Developing a Policy (cont.)Policy (cont.)

Obtain a model policy from another Obtain a model policy from another similar transit provider, Best Practices similar transit provider, Best Practices Manual, or auditor: edit, customize, Manual, or auditor: edit, customize, finalize, adoptfinalize, adopt Finished product must actually describe Finished product must actually describe

local policies (e.g., second chance)local policies (e.g., second chance) Must do a complete entity name search-Must do a complete entity name search-

and-replace throughout documentand-replace throughout document Pay someone to develop one for youPay someone to develop one for you

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In Conclusion…In Conclusion…

Your policy is the bedrock upon which Your policy is the bedrock upon which your entire drug and alcohol program your entire drug and alcohol program rests…so it is well worth your time to rests…so it is well worth your time to get it rightget it right

49 CFR Part 655 dictates the specific 49 CFR Part 655 dictates the specific elements that need to be includedelements 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 completelyLearn it completely Review it frequentlyReview it frequently Update it as neededUpdate it as needed

Policy Review ExercisePolicy Review Exercise

Spend 10 minutes reviewing the Spend 10 minutes reviewing the handouthandout

Group Discussion to followGroup Discussion to follow

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Questions and AnswersQuestions and Answers I will be available to answer I will be available to answer

questions now, or you can track me questions now, or you can track me down later.down later.

how to write a compliant anti-drug and alcohol misuse policy

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