A Brief Case-study, and Guidance

Where it beganAug. 29, 2007

2 Boston Firefighters died during the Tai Ho Restaurant blaze

September 2007 Mayor quietly orders Labor Relations Director John Dunlop to develop drug policy draft

October 4, 2007

“Autopsies find alcohol, some cocaine, 2 officials

say”

October 4, 2007

“A source who was briefed by a person with

knowledge of the autopsies of [Firefighter] and [Firefighter] told the Globe that one firefighter had a blood-alcohol level higher than .08, the level at which someone is too drunk to drive legally in Massachusetts. The other firefighter had traces of cocaine in his system, the source said.”

October 4, 2007

“A government official briefed on the findings

of the state medical examiner's office said [Firefighter] registered a blood-alcohol level of .27 in the autopsy, which would have placed him at more than three times the legal limit, while [Firefighter] had cocaine in his system.”

.o8 or .27 bac? Traces?

.08 = 4 drinks

.27 = 13 drinks

Which number was it?

Traces of cocaine? Metabolites?

November 30, 2007

“Panel urges firefighter drug testing as part of overall wellness program”

Cahill Swift Sends Letter to City Hall & to UnionLetter:

Urges caution when creating policy

Offers service as neutral 3rd party

Describes importance of Reasonable Suspicion Testing

April 29, 2008

“Firefighters rally to oppose drug, alcohol testing mandates”

Letter Received by Union

Union President Ed Kelly immediately contacts Cahill Swift

Schedules meeting

Expresses Union desire for fair and effective drug testing program enhancement

Letter Hand-Delivered to City Hall

No response

Union & City Hall Meeting

Union says they have identified neutral 3rd party for policy work

Gives City Hall Cahill Swift’s contact information

Urges City to verify expertise and neutrality, and to begin use

City Hall Contacts Cahill Swift

City Hall: “Do you normally work for labor or management?”

Cahill Swift: “Neither. We represent the process and the regulations.”

Union retains Cahill Swift exclusively, Policy work begins

Union and Cahill Swift examine other policies throughout Boston: Patrolman’s Union, EMT’s Union, etc.

Findings from other Policies

Hair testing is used

Randomness of program meritless

Changing parameters of testing thresholds

Cahill Swift Advises Ground Rules

No hair testing

Must be scientifically random

Must have as little room as possible for abuse in all directions

Must be based on federal testing regulations

City Hall Submits Draft Policy

A draft was received by the Union

Sent to Cahill Swift for analysis

Policy analyzed using same criteria as federal projects

…and what to do if you already have a policy

Win the PR WAR up-frontConsider making public declaration of support

The public will generally not understand the complexities of:

“We’re not opposed to drug testing, but we think that it should be included in collective

bargaining process”VS.

“The Union is opposed to drug testing”(One of these is an easier headline to sell papers)

Win the PR WAR up-front

The public will generally not understand the complexities of:

“We’re not opposed to drug testing, but we think that it should be included in collective

bargaining process”

Win the PR WAR up-front

in favor of“We’re not opposed to drug testing, but we think that it should be included in collective

bargaining process”or

“This is long overdue”

Lay your Ground Rules (internal)

1. No hair testing2.Must be scientifically random3. Must have as little room as possible for abuse in all directions4. Must be based on federal testing regulations5. Urinalysis & Breath-Alcohol or Saliva-Alcohol only6. Audits

1. Hair Testing

No laboratory testing protocols

Confirmed racial bias

Leaves mark on each donor

Detects “use” and not “impairment”

Hair Testing

Extremely expensive

Rejected by USDOT as suitable testing method

Rejected by DoD as suitable testing method

2. Must be scientifically random

Clearly established testing rates (25-50%)

Scientifically valid randomization process

No official may have discretion as to selection

Each employee must have equal chance of being selected during each random draw

3. Must have as little room as possible for abuse in all directions

Notification process must be secure

“Refusal” designations must be clearly written

4. Must be based on federal testing regulations

Two regulations should be used:49 CFR Part 40 & 49 CFR Part 655

Must be based on federal testing regulations

Part 40: Describes the required steps and structures for drug testing vendors (collection sites, collectors, Medical Review Officers, etc.)

Part 655: Describes the required steps and structures for the employees and employers

Must be based on federal testing regulations

The federal regulations provide the best possible structure for a fair program to both sides

Have been legally tested for over 10 years, in every possible manner and angle

Federal regulations and the PR War

“The city proposal was not strong or thorough enough”

-The City will have a difficult time arguing against the use of a federal structure

5. Urinalysis & Breath-Alcohol or Saliva-Alcohol onlyUrinalysis and breath-alcohol or saliva

testing are the only testing methods which meet the USDOT accuracy requirements (>10,000)

Equipment requirements are clearly spelled out in the regulations, including calibrations, shipping requirements, reporting time-frames, and verbal verifications

6. Audits

Demand the right to have the program examined every 1-3 years

Are the collections being conducted accurately, as required by 49 CFR Part 40?

Is the equipment up-to-date?Are the tests being spread fairly across work

shifts, days of the week, and throughout the year?

The real starting point

Policy

Two choices:

1. Wait for city draft proposal

2. Submit proposal

Policy

The written policy is the most important first step

Will be both blue-print and operating manual

Micro-changes: from “the fire department may” to “the fire department shall” will have enormous impact

Policy

Should be in plain English

Should be professionally evaluated (or, at minimum, checklisted against Part 655 Policy requirements)

Should take language directly from 49 CFR Part 655 when possible

Policy

Should clearly list refusals

After first year of the program, policy should be heavily dog-eared and notated

Policy

Random Testing rates:25-50% for Drugs

10% for Alcohol

*Random rates may be incentivized based on negatives

Policy

Establish only the following types of testing:-Random-Pre-Employment-Post-Accident-Reasonable Suspicion-Return-to-Duty-Follow-Up

Policy

Self-referrals must not be treated as positive (consistent with federal regulations)

EAP information and rights of employees should also be included

Policy

Since FTA or other USDOT mode program manager has no jurisdiction, clearly establish remedy for disputes about testing results, etc.

-Revert to language of Policy-Grievance and Arbitration-Industry expert

Policy

Specify Firefighter exemptions:-Squeeze-throughs

-Full alarms during testing -

Implementation of the Policy

Establishing vendors

Union and City should agree on criteria

Every single vendor should be considered

Require a TPA (Third-Party Administrator) for randomizations and notifications

Get the Troops Ready

Circulate the policy to all firefighters and members

Receive and maintain a “policy receipt” from each member

Have a training session, describing the program and the procedures, especially focusing on refusals

During the Program

If an error or improper procedure is noticed by member, grieve the matter AFTER the collection

Results may be overturned, but a refusal cannot

Presentation Dedication

Anne, Shauna, Adam, and Brendan Cahill&

Florence, Cheryl, Jonathan, and Jeremy Payne

Warren J. Payne

Paul J. Cahill