Cross RoadsCross Roads

Drug and Alcohol Testing Decisions Drug and Alcohol Testing Decisions Road Supervisors Must MakeRoad Supervisors Must Make

Presented by Diana Byrnes, CUTR

WelcomeWelcome

Diana ByrnesDiana Byrnes Center for Urban Transportation Center for Urban Transportation

ResearchResearch FDOT Oversight and Technical FDOT Oversight and Technical

Assistance ProgramAssistance Program C-SAPAC-SAPA

As a road supervisor you:As a road supervisor you:

Are the eyes and ears of your transit Are the eyes and ears of your transit systemsystem

Need to be vigilantNeed to be vigilant Need to be empoweredNeed to be empowered Need to stay educatedNeed to stay educated Can be your transit system’s greatest Can be your transit system’s greatest

asset!asset!

Today we are going to Today we are going to examine two test types examine two test types

that require a supervisor to that require a supervisor to make testing decisions:make testing decisions:

Reasonable Suspicion Reasonable Suspicion

and and

Post AccidentPost Accident

Making Reasonable Making Reasonable Suspicion Suspicion

DeterminationsDeterminations

What is Reasonable Suspicion What is Reasonable Suspicion Testing?Testing?

Reasonable suspicion testing is Reasonable suspicion testing is NOT a diagnostic tool.NOT a diagnostic tool.

Testing is used only to rule out the Testing is used only to rule out the possibility that the unusual possibility that the unusual behavior or appearance being behavior or appearance being observed may be caused by observed may be caused by prohibited drug use or alcohol prohibited drug use or alcohol misusemisuse Most underutilized test typeMost underutilized test type Often too few trained supervisorsOften too few trained supervisors

Supervisory RoleSupervisory Role

When it comes to reasonable When it comes to reasonable suspicion testing; any one who has suspicion testing; any one who has met at least the minimum FTA met at least the minimum FTA training requirements for Reasonable training requirements for Reasonable Suspicion Determinations is able to Suspicion Determinations is able to “make the call”“make the call”

Job Job titletitle is not a factor is not a factor Dispatchers are excellent candidates Dispatchers are excellent candidates

for this authority!for this authority! Frequently interact with operatorsFrequently interact with operators

FTA Training RequirementsFTA Training Requirements MinimumMinimum of 60 minutes of training on the of 60 minutes of training on the

signs and symptoms of probable prohibited signs and symptoms of probable prohibited drug use ANDdrug use AND

MinimumMinimum of 60 minutes of training on the of 60 minutes of training on the signs and symptoms of probable alcohol signs and symptoms of probable alcohol misusemisuse

The training is only required ONCE during the The training is only required ONCE during the tenure of employment tenure of employment

More than the minimum is highly More than the minimum is highly recommendedrecommended

Refresher training is highly recommended alsoRefresher training is highly recommended also

RequirementsRequirements

Regulations require that only one Regulations require that only one trained company official needs to trained company official needs to witness the behavior to “make the witness the behavior to “make the call”call”

The referral must be based on The referral must be based on specific, contemporaneous, specific, contemporaneous, observations concerning the observations concerning the appearance, behavior, speech or appearance, behavior, speech or body odor of the covered employeebody odor of the covered employee

Prohibited BehaviorProhibited Behavior

Safety sensitive employees are Safety sensitive employees are prohibited from consuming alcohol prohibited from consuming alcohol four hours prior to performing a four hours prior to performing a safety sensitive functionsafety sensitive function

Safety sensitive employees are Safety sensitive employees are prohibited from using drugs at all prohibited from using drugs at all times while employedtimes while employed

Recognizing Signs and SymptomsRecognizing Signs and Symptoms

Clean, Sober and Safe identifies the Clean, Sober and Safe identifies the five prohibited drugs and the five prohibited drugs and the associated signs and symptomsassociated signs and symptoms Let’s take a lookLet’s take a look

Making the Call to TestMaking the Call to Test

Criteria for Making Testing ReferralCriteria for Making Testing Referral

Consider only Consider only objectiveobjective facts; your facts; your personal opinions do not countpersonal opinions do not count

Apply the “reasonable and prudent rule.” Apply the “reasonable and prudent rule.” Ask yourself; “Would another similarly-Ask yourself; “Would another similarly-trained supervisor having observed the trained supervisor having observed the same indicators come to the same same indicators come to the same conclusion? Would it be irresponsible of conclusion? Would it be irresponsible of me not to order the test and allow the me not to order the test and allow the employee to perform safety/sensitive employee to perform safety/sensitive work?”work?”

Criteria for Making Testing Criteria for Making Testing Referral (Cont’d)Referral (Cont’d)

Consider employee fitness for duty. Consider employee fitness for duty. In his/her present condition, could In his/her present condition, could the employee present a safety risk to the employee present a safety risk to himself/herself or others by himself/herself or others by continuing to perform safety-continuing to perform safety-sensitive work?sensitive work?

How to “Make the Call” How to “Make the Call”

Remove employee from Remove employee from safety/sensitive dutiessafety/sensitive duties

Isolate employee and conduct Isolate employee and conduct interview/evaluation in a private interview/evaluation in a private settingsetting

Be confident, diplomatic, polite, Be confident, diplomatic, polite, and mindful of the privacy and and mindful of the privacy and dignity of the employee.dignity of the employee.

How to “Make the Call” (Cont’d)How to “Make the Call” (Cont’d)

Be objective - your personal Be objective - your personal opinions are not the issueopinions are not the issue

Inquire, not accuse Inquire, not accuse Use tone of voice and body Use tone of voice and body

language that does not make the language that does not make the employee defensive.employee defensive.

How to “Make the Call” (Cont’d)How to “Make the Call” (Cont’d)

Observe and document unusual Observe and document unusual behavior, appearance, or odorbehavior, appearance, or odor

Give employee opportunity to explain Give employee opportunity to explain behavior or event from his/her behavior or event from his/her perspective and respond with respect perspective and respond with respect (avoid or limit “you” statements)(avoid or limit “you” statements)

Expect denial, do not lose focusExpect denial, do not lose focus Consider medical conditionConsider medical condition

How to “Make the Call” (Cont’d)How to “Make the Call” (Cont’d)

Make reasonable suspicion Make reasonable suspicion determination to test or not to testdetermination to test or not to test

If employee refuses, explain the If employee refuses, explain the consequences of refusal to complyconsequences of refusal to comply

Escort employee to collection site Escort employee to collection site and arrange to have him/her and arrange to have him/her transported to home (under transported to home (under employer authority).employer authority).

What the Supervisor What the Supervisor Must Must NotNot Do Do

Do NOT confront employee in front Do NOT confront employee in front of co-workersof co-workers

Do NOT accuse employee of illegal Do NOT accuse employee of illegal drug use or alcohol misusedrug use or alcohol misuse

Do NOT diagnose abuse or addictionDo NOT diagnose abuse or addiction Do NOT identify the specific drug Do NOT identify the specific drug

associated with the behavior or associated with the behavior or appearance.appearance.

Documentation of Testing Documentation of Testing ReferralReferral

Required under FTA rule Section Required under FTA rule Section 655.71(c) (iii)655.71(c) (iii)

Must be maintained for a minimum of Must be maintained for a minimum of two (2) yearstwo (2) years

Document delay (after 2 hours) or Document delay (after 2 hours) or inability to test (after 8 hours) for alcoholinability to test (after 8 hours) for alcohol

See sample “Reasonable Suspicion See sample “Reasonable Suspicion Testing Referral Form”.Testing Referral Form”.

Sample

Testing Scenario and Testing Scenario and Role Play ExerciseRole Play Exercise

ScenarioScenario

During lunch break you enter your During lunch break you enter your company’s restroom. As you approach company’s restroom. As you approach the door, you hear muffled laughter and the door, you hear muffled laughter and coughing. As soon as you enter the coughing. As soon as you enter the door, the laughter abruptly stops and door, the laughter abruptly stops and you hear a sudden flurry of activity. you hear a sudden flurry of activity. There are three safety/sensitive There are three safety/sensitive employees in the restroom standing by employees in the restroom standing by the window – Karen, Dee, and Janetthe window – Karen, Dee, and Janet

Scenario ContinuedScenario Continued

There is no noticeable smoke in the There is no noticeable smoke in the restroom, but you smell the faint restroom, but you smell the faint odor of marijuana. As soon as you odor of marijuana. As soon as you walk in, you see Janet stuff what walk in, you see Janet stuff what appears to be a small pipe in the appears to be a small pipe in the back pocket of her pants. All three of back pocket of her pants. All three of them refuse to make eye contact them refuse to make eye contact with you when you say hi. They with you when you say hi. They belatedly mumble hi. You notice that belatedly mumble hi. You notice that Karen and Dee’s eyes looked glazed Karen and Dee’s eyes looked glazed and slightly redand slightly red

Scenario QuestionsScenario Questions

As a trained supervisor, what is As a trained supervisor, what is your responsibility in this your responsibility in this situation?situation?

Is a reasonable suspicion referral Is a reasonable suspicion referral necessary for any or all of the necessary for any or all of the three employees in this situation? three employees in this situation? If yes, on what grounds?If yes, on what grounds?

EmpowermentEmpowerment

Potential ExcusesPotential Excuses

Difficult to detect substantial proof Difficult to detect substantial proof of impairmentof impairment

Concern about union involvement or Concern about union involvement or possible discrimination lawsuitpossible discrimination lawsuit

For supervisors who rose through the For supervisors who rose through the ranks, the employee may sometimes ranks, the employee may sometimes be an “old buddy”be an “old buddy”

More ExcusesMore Excuses

Testing is time-consuming and Testing is time-consuming and requires other employees for requires other employees for transportingtransporting

A suspected employee is often a good A suspected employee is often a good worker with high seniorityworker with high seniority

Lack of support from upper level Lack of support from upper level managementmanagement

Inadequate supervisor training.Inadequate supervisor training.

Encouraging Factors for SupervisorsEncouraging Factors for Supervisors

Your employer expects supervisor Your employer expects supervisor intervention; your policy spells it outintervention; your policy spells it out

Supervisor could be held personally Supervisor could be held personally liable if someone was hurtliable if someone was hurt

Employee’s performance is not Employee’s performance is not dependabledependable

Desire to see employee get helpDesire to see employee get help

Encouraging Factors for Supervisors Encouraging Factors for Supervisors (Cont’d)(Cont’d)

Employees who abuse drugs or misuse Employees who abuse drugs or misuse alcohol have a bad effect on co-alcohol have a bad effect on co-workersworkers

Such employees often require a lot of Such employees often require a lot of supervisionsupervision

Helping the employee get professional Helping the employee get professional assistance also helps the employee’s assistance also helps the employee’s family.family.

Supervisor Role and Liability Supervisor Role and Liability ConcernsConcerns

More and more civil and even criminal More and more civil and even criminal courts are holding the front line courts are holding the front line supervisor and the employer itself supervisor and the employer itself responsible for the actions of responsible for the actions of employees who may be impaired due employees who may be impaired due to substance abuse or alcohol misuse. to substance abuse or alcohol misuse.

EmpowermentEmpowerment

Training is not effective if supervisors Training is not effective if supervisors are not empowered to “make the call to are not empowered to “make the call to test”test” Management needs to foster a “safety Management needs to foster a “safety

culture”culture” Emphasis should be on “fitness for duty”Emphasis should be on “fitness for duty”

Remove the accusatory stigma that is attached Remove the accusatory stigma that is attached with reasonable suspicion testingwith reasonable suspicion testing

Increase awareness of other possible factors Increase awareness of other possible factors that can lead to impairment that can lead to impairment (e.g. Rx and OTC (e.g. Rx and OTC meds)meds)

How to EmpowerHow to Empower

Management must support supervisorsManagement must support supervisors Follow through with testing when supervisor Follow through with testing when supervisor

has brought the matter to mgmt.’s attentionhas brought the matter to mgmt.’s attention Support supervisor’s decision to test-regardless Support supervisor’s decision to test-regardless

of the resultsof the results Implement policy consistently!!Implement policy consistently!! Conduct refresher training annuallyConduct refresher training annually Frequently remind supervisors of the Frequently remind supervisors of the

importance of their role in protecting the safety importance of their role in protecting the safety of the traveling public and fellow employeesof the traveling public and fellow employees

Making Post AccidentMaking Post Accident

DecisionsDecisions

ResponsibilitiesResponsibilities Road supervisors are often charged Road supervisors are often charged

with determining when an accident with determining when an accident meets the threshold for conducting meets the threshold for conducting FTA required post accident drug and FTA required post accident drug and alcohol testing. They:alcohol testing. They: are often the first company official on the are often the first company official on the

scenescene should be well versed in post accident should be well versed in post accident

testing criteria testing criteria should be authorized to consider all should be authorized to consider all

safety-sensitive employees who may safety-sensitive employees who may have contributed to an accidenthave contributed to an accident

FTA Post Accident CriteriaFTA Post Accident Criteria

Fatality of any party involved: TESTFatality of any party involved: TEST If any party immediately receives If any party immediately receives

medical treatment away from the medical treatment away from the scene: TEST*scene: TEST*

If one or more vehicles is If one or more vehicles is requiredrequired to to be towed away from the scene: be towed away from the scene: TEST*TEST* *Unless employee’s actions can be *Unless employee’s actions can be

completely discountedcompletely discounted Please see form provided

Making the Decision to TestMaking the Decision to Test Use the best information available to Use the best information available to

you at the timeyou at the time Use a Post Accident Decision and Use a Post Accident Decision and

Documentation FormDocumentation Form Use only FTA established criteria (DO Use only FTA established criteria (DO

NOT use a “better safe than sorry NOT use a “better safe than sorry mantra”)mantra”)

Consider all safety-sensitive employees Consider all safety-sensitive employees (such as mechanics)(such as mechanics)

Executing Decision to TestExecuting Decision to Test

First: ensure that any injured employee First: ensure that any injured employee receives prompt medical attentionreceives prompt medical attention

Inform employee of requirement to test Inform employee of requirement to test (if employee does not remain readily available (if employee does not remain readily available it’s a refusal to test )it’s a refusal to test )

Allow law enforcement to complete Allow law enforcement to complete investigationinvestigation

Transport employee to testing facility or Transport employee to testing facility or arrange for on-site urine collector and arrange for on-site urine collector and breath alcohol technicianbreath alcohol technician

Testing WindowsTesting Windows

Both drug AND alcohol testing must Both drug AND alcohol testing must always be conducted when criteria is always be conducted when criteria is metmet

Make every attempt to conduct tests Make every attempt to conduct tests within 2 hours of eventwithin 2 hours of event Document cause of delay if tests are not Document cause of delay if tests are not

conducted within 2 hours of eventconducted within 2 hours of event Cease attempts to conduct alcohol Cease attempts to conduct alcohol

test after 8 hours- document causetest after 8 hours- document cause Cease attempts to conduct drug test Cease attempts to conduct drug test

after 32 hours- document causeafter 32 hours- document cause

Refusal to TestRefusal to Test Employees must remain readily Employees must remain readily

available for testing- refusing to do so available for testing- refusing to do so may be deemed a refusal to testmay be deemed a refusal to test

Other actions that constitute refusal:Other actions that constitute refusal: Failure to cooperate with any part of the Failure to cooperate with any part of the

testing process (including being medically testing process (including being medically evaluated or submitting to an additional evaluated or submitting to an additional test or being monitored or directly test or being monitored or directly observed during testing)observed during testing)

Attempting to adulterate or substitute a Attempting to adulterate or substitute a specimen or wearing a prosthetic devicespecimen or wearing a prosthetic device

Removal from Duty Under Removal from Duty Under Employer PolicyEmployer Policy

Some employers have made it their Some employers have made it their policy to remove employees from policy to remove employees from safety-sensitive duty until the results safety-sensitive duty until the results of the urine drug test are receivedof the urine drug test are received Can only be done under agency Can only be done under agency

authority (not authorized by FTA or DOT)authority (not authorized by FTA or DOT) Must be part of employer policyMust be part of employer policy

Any Questions?Any Questions?