Scenarios fromWebster Lake Bus Co. (WLB)

All scenarios appearing in this presentation are fictitious. Any resemblance to real situations is purely coincidental.

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Scenario Categories• Policy & Training• Pre-employment Testing & Previous-employer Checks• Random Testing• Post-accident Testing• Reasonable-suspicion Testing• Return-to-duty & Follow-up Testing• Refusals & Procedural (Part 40) Problems• MIS• Contractor & Vendor Oversight

Minor changes were made to the WLB drug and alcohol policy (e.g. “mass transit” was replaced w/ “public transportation”). •Revised policy statement can be disseminated without board/official approval•Only major changes need to be resubmitted for approval (e.g., second-chance to zero tolerance)

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WLB’s 60-minute employee education program includes the effects and consequences of alcohol misuse•Requirement: 60 minutes of training on the effects

and consequences of prohibited drug use•Can include alcohol and/or policy, but must be

additional

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WLB heard that FTA regulations favor a zero tolerance policy

• FTA rules neither dictate nor “favor” this • FTA requirement: no one who violates a rule can

perform covered functions again until completing the SAP return-to-duty process

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A pre-employment test was cancelled because of a “fatal flaw,” but WLB allowed the employee to begin driving a bus

• Immediately remove the employee from s.s. duties and send for another pre-employment test• Do not allow the employee to continue to perform s.s. duties

until a verified negative result is received • Collector w/ fatal flaw must receive error correction training

within 30 days

6

WLB’s DAPM continually gets no response to a request for an applicant’s past drug and alcohol information•Document good-faith effort•Report company to FTA if routinely non-responsive

7

WLB is told they have to pay for an applicant’s past drug and alcohol information

•No one may withhold this information from the requesting employer

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In response to an inquiry from a new employer about a former WLB employee, can WLB provide information that they received from other employers in the past?

•Yes: It is not a violation of Part 40 or DOT agency rules if you provide information about the employee’s DOT drug and alcohol tests obtained from former employers that date back more than two years (Sept. 2001 ODAPC Q&A)

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An employee leaves WLB for an extended period of time, but returns within two years

•Seek to obtain information from any other employers for whom the employee performed safety-sensitive duties since the employee last worked for WLB

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An applicant admits to testing positive on a pre-employment test one year before applying

•The applicant cannot perform safety-sensitive duties until and unless they can document the successful completion of the return-to-duty process

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WLB conducts non-DOT pre-employment alcohol tests of safety-sensitive employees

•Pre-employment alcohol testing must be performed using the procedures set forth in 49 CFR Part 40

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If an applicant fails a FTA pre-employment test, WLB does not provide them with a SAP referral

•WLB is required to provide to each employee (including an applicant or new employee) who violates a DOT drug and alcohol regulation a listing of SAPs readily available to the employee

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VIOLATE DOT DRUG AND ALCOHOL

REGULATION

SAP REFERRAL

WLB is in danger of failing to meet the minimum testing rate near the end of the year

•Complete testing for all selected employees •Generate a new list to fulfill minimum requirements

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An employee selected for a random alcohol test rarely performs safety-sensitive duties•WLB can designate an employee to perform safety sensitive functions as they see fit

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DOT ALCOH

OL TESTIN

G

JUST BEFOR

E

DURING JUST

AFTER

WLB’s DAPM is selected for a random test1) The DAPM receives the selection list and, upon seeing their name, proceeds immediately to the collection site, or2) The TPA forwards this information to a supervisor who will notify the DAPM

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WLB makes monthly random selections that include exact days for the employee to be tested. An employee is absent on the scheduled day.

•An absent employee “must be tested when they return to work provided the employee returns before the next random selection list is generated.”

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WLB considers specific job functions when making random selections (i.e. dispatchers may only be selected for a certain amount of tests each selection period)

•Each employee must have an equal chance of being selected each time selections are made•Employers cannot modify/divide selection lists

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WLB’s DAPM heard they may not test above the random testing rates•25 percent for drugs and 10 percent for alcohol are required minimum annual percentage rates•These rates can be exceeded

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WLB operates a 06:00 – 22:00 schedule; but the DAPM only works 08:30 – 17:00•Random testing must be spread throughout all hours •Set up a contingency plan

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Brake failure clearly contributed to an accident. The mechanic responsible for the repairs won’t be in for another 10 hours

•Send the mechanic for a drug test, only •Document the reasons the alcohol test was not administered

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No FTA post-accident threshold was met, is a decision making form still filled out?

• In this case there is no requirement to document the decision not to test

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A taxi company, used by WLB for paratransit service, has a driver involved in an accident while carrying a non-paratransit passenger

•The taxi driver would not be subject to FTA post-accident testing

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A supervisor wants to bring an operator back to the depot to look at the video, so a post-accident determination can be made

•This practice creates an unacceptable delay in post-accident testing

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An accident occurs. No FTA threshold was met and the operator could be completely discounted; but the supervisor smells alcohol on the drivers breath

•Conduct a reasonable suspicion interview •A reasonable suspicion test is required if the trained

official has reasonable suspicion to believe that the covered employee has used a prohibited drug and/or engaged in alcohol misuse

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WLB believes that the deployment of airbags constitutes “disabling damage”

•Disabling damage means damage severe enough that it "precludes departure of [the] motor vehicle from the scene of the accident in its usual manner…"

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- A driver scrapes a building, bending the window frames (which shatters six windows) and damages two body panels - The employee drives the bus back to the depot and informs their supervisor• No DOT post-accident test • A non-DOT post-accident test

under employer authority can be performed

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A driver injured himself getting out of the drivers seat. After his shift, he visited WLB’s occupational health/collection site to be checked out. The driver requested a post-accident test, and the collection site obliged.• Take corrective actions to prevent this from happening again • This should not be reported on a MIS form

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WLB does not consistently document delays in reasonable suspicion alcohol testing•Delays in alcohol testing of two/eight hours must be documented•Accurate interview/determination times assure that the regulations are correctly followed

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WLB did not comply with the SAP’s follow-up testing schedule; many tests have not been performed

•The plan needs to be completed as written – even if it goes past the original time frame

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An employee in WLB’s follow-up program is absent for an extended period

•WLB must pause follow-up testing until safety-sensitive duties are resumed•The 60-month duration of follow-up testing may sometimes extend beyond five calendar years

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WLB wants to include alcohol for an employees follow-up testing plan; but the SAP only prescribed drug testing

•No one is allowed to change the SAP’s plan in any way•Except the SAP

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WLB used an employee’s random test as a substitute for a follow-up test

•No other type of test can substitute for follow-up tests

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Follow-up Test

Random Test

WLB insists the SAP make a fitness for duty determination to return an employee to safety sensitive duties

•This is the employer’s responsibility

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A collector calls WLB seeking assistance because an employee is refusing to follow instructions•Ensure that the employee understands the ramifications•Remind the collector to thoroughly document the circumstances surrounding the event in the remarks section of the CCF

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WLB’s collection site is not complying with Part 40•Report the service agent to the program manager of the FTA•Consider changing collection services

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WLB has no access to an approved EBT

• It is necessary to come up with a real solution for timely alcohol testing•Cannot rely solely on saliva kits or screening-only devices•Small systems with no other alternatives may need to purchase an approved EBT

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WLB receives test results on a fax machine located in the middle of the dispatch office•The MRO, C/TPA and employer must ensure the security of the transmission and limit access to any transmission, storage, or retrieval systems

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WLB learned that a confirmed alcohol test of 0.042 was conducted on a poorly-maintained EBT

•Poor calibration practices and/or poor accuracy check records are the most frequent errors causing alcohol tests to be overturned in court•Ensure proper and consistent calibration checks

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An applicant leaves the collection site after the collector fills out Step 1 of the CCF. The collector calls the transit system to report a refusal.

•This is not a refusal•For pre-employment tests, the collection process starts only when the donor receives the collection container

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A non-DOT CCF or ATF is used for a DOT test

•Collector creates a signed statement stating:

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the incorrect form contains all the information needed for a valid DOT drug test

the incorrect form was used inadvertently

the steps taken to prevent this in the future

WLB discovers incorrect MRO information on its testing forms.

• Immediately contact the TPA or testing laboratory and request a new supply of accurate CCFs.

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WLB is notified that a follow-up test was not conducted under direct observation

• Immediately remove the employee from safety-sensitive duties and send them for a directly observed follow-up test

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WLB wishes to conduct both DOT and non-DOT tests following an accident• The DOT urine collection must be accomplished

before any non-DOT collection•Non-DOT collection must use non-federal forms, and a

separate void

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DOT TEST NON-DOT TEST

If an employee asks to have the split specimen tested, WLB demands the employee pay before testing moves forward• Payment arrangements for the split specimen should be

worked out in advance• The decision of who pays is left to the employer and

employees.• It is the employer’s responsibility to ensure the split test

takes place without delay and regardless of who pays45

An officer uses a device that is not on the NHTSA CPL: no EBT is available, and the screening result is 0.03

•Make a safety decision if the screening test suggests alcohol use•WLB cannot take any further

action

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WLB found an error on their MIS form after they had submitted it•MIS forms can be resubmitted•Log back in (using the same username and password) and make the changes

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Log into http://damis.dot.gov

Click the option to edit your data

Click the Wrap-Up screen

WLB’s collection site consistently delays sending the employer copy of the CCF

•Provide collection site with SASEs•Consider setting up a scan/email system

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WLB’s employees spend too much time in the collection site’s waiting room

•Stress to the collection site that these tests are federally mandated and are important to public safety•Make appointments if possible

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Are WLB’s maintenance contractors covered by 49 CFR Part 655?

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If WLB is a recipient of 5311 funding (as opposed to 5307/5309)

• NOT COVERED

Ad hoc maintenance contractor

• NOT COVERED

If WLB is a 5307/5309 funded system - and operating in an area w/ population of more than 200k• COVERED

Maintenance subcontractor (a contractor to a covered maintenance contractor)

• NOT COVERED