ed vanderploeg lori decoste atlanta, ga - 2015. session topics/format ◦ functions and required...

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

Ed VanderPloegLori DeCoste

Atlanta, GA - 2015

Session topics/format◦ Functions and required elements of the policy◦ Mechanics of developing a policy◦ Policy Review Exercise◦ Don’t leave early – there is a special surprise in the last

10 minutes!◦ Q & A – as we proceed, or at the end

Session goal◦ Equip everyone in the room to write a compliant policy,

or analyze and fix a non-compliant policy

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Introduction

Provide clear, concise guidance to employees regarding the DOT/FTA substance-abuse prevention program◦ Rights◦ Responsibilities (i.e., when testing will be done)◦ Prohibited actions

Function as a guide for the DAPM for program implementation

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

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Functions of the Policy

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

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

◦ Section 655.16: “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.”

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Functions of the Policy (cont.)

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

out of service◦ Maintaining a revenue service vehicle or equipment

used in revenue service◦ Controlling the dispatch or movement of a revenue

service vehicle

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Key Requirements of the Policy

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

requires a CDL◦ Carrying a firearm for security purposes

◦ Volunteers: Must drive a vehicle that requires a CDL, or be compensated in excess of actual costs incurred, in order to be considered safety-sensitive

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Key Requirements of the Policy (cont.)

Describe Prohibited Behaviors - Drugs◦ Employees are prohibited from using the five listed

drugs at all times; an employee may be tested for these drugs any time while on duty Marijuana Cocaine Amphetamines Opiates Phencyclidine

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

having an alcohol concentration of 0.04 or greater◦ No usage four hours before performing, while

performing, or while on-call to perform a safety-sensitive duty

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

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Describe Circumstances of Testing◦ Pre-Employment◦ Random◦ Post-Accident◦ Reasonable Suspicion◦ Return-to-Duty / Follow-Up◦ State that random, follow-up, and reasonable

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

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

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

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

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

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

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Random Testing◦ Selections will be made using a scientifically valid

method◦ Each employee will have an equal chance of

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

◦ Testing will be unannounced and immediate◦ Testing will be reasonably spread (i.e., conducted on

all days and hours throughout the year)

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Post-Accident Testing - Thresholds◦ Fatality (testing mandatory)◦ Immediate medical treatment away from scene

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

required unless employee discounted)

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Post-Accident Testing – Requirements◦ Driver, as well as any other covered employee(s)

whose performance could have contributed to the accident, subject to testing

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

of the accident or receives medical attention

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Reasonable Suspicion Testing◦ Determination will be made by a trained supervisor◦ Contemporaneous observation of physical signs and

symptoms of possible drug/alcohol use required

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Return-to-Duty and Follow-up Testing◦ Will be conducted in accordance with process set

forth in Part 40, Subpart O◦ All tests will be conducted under direct observation

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Identify Actions that Constitute a Refusal to Test◦ Failure to appear in a timely fashion (except for pre-

employment tests)◦ Failure to remain until the testing process is

complete◦ Failure to attempt to provide a breath or urine

specimen

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

breath without a valid medical explanation◦ Failure to undergo a medical evaluation as required

by the MRO or DER◦ Failure to cooperate with any part of the testing

process◦ Failure to permit monitoring or observation for drug

testing

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

and lower clothing and turn around during a directly-observed test

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

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

collector or employer for drug testing◦ Admitting the adulteration or substitution of a

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

substituted

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Identify Actions that Constitute a Refusal to Test – cont.◦ Refusal to sign the certification at Step 2 of the ATF◦ Failure to remain readily available following an

accident

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

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

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Describe Consequences of a Non-Negative Test Result – cont.◦ Alcohol test of 0.02 or greater and less than or equal

to 0.039: employee will be removed immediately from his or her safety-sensitive function for at least 8 hours or until the beginning of their next scheduled shift, whichever is longer, or until a re-test shows a BAC of less than 0.02

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

positions)◦ Identify the contact person who will answer

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

◦ Differentiate FTA requirements from any additional employer-specific elements

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

23


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

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

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

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Required “Administrative” Elements of a Compliant Policy – cont.◦ Documentation of policy approval/adoption (i.e.,

effective date, signatures)◦ No provisions in the policy may be inconsistent with

or have the effect of thwarting the FTA regulations◦ Documentation of distribution to safety-sensitive

employees

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

Good policies can be as short as 12-15 pages or as long as 50 – it’s all a matter of style

Issues with longer policies:◦ Increases the chance that something will be

worded incorrectly or confusingly◦ Decreases the chance that employees will actually

read it

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How Long Should the Policy Be?

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

ls/◦ Checklist can be used to conduct your own policy

review while you write

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Methods of Developing a Policy

http://transit-safety.fta.dot.gov/DrugAndAlcohol/Tools/


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

policies (e.g., 2nd chance vs. zero tolerance)◦ Must do a complete entity name search-and-

replace throughout document

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Methods of Developing a Policy (cont.)

Spend 5 minutes reviewing the handout Group Discussion to follow (6-8 minutes)

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Policy Review Exercise

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

49 CFR Part 655 dictates the specific elements that need to be included

Don’t just file it away once it is done:◦ Learn it completely◦ Review it frequently◦ Update it as needed

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In Conclusion…

Lori will unveil a very exciting new development in the world of policy writing

10 minute demonstration


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Special Surprise!


Lori and Ed are available to answer questions now, or feel free to track us down later

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Questions and Answers

ed vanderploeg lori decoste atlanta, ga - 2015. session topics/format ◦ functions and required...

Documents

safety sensitive duty

safetysensitive duty

safetysensitive function

performance of safety

revenue service vehicle

accident alcohol test

prohibited behaviors

employment testing