Note: Electronic access to this document is provided by the Public Transportation Office, Washington State Department of Transportation. The content belongs to the Office of Safety and Security, Federal Transit Administration (FTA), U.S. Department of Transportation.
Issue 3--Summer 1996
The Federal Transit Administration (FTA) published its final rules on prohibited drug use (49 CFR Part 653) and the prevention of alcohol misuse (49 CFR Part 654) on February 15, 1994. Shortly thereafter, the FTA published the Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit to provide a comprehensive overview of the Regulations. Since the Guidelines were published there have been numerous ammendments, interpretations, and clarifications to the Drug and Alcohol testing procedures and program requirements. This publication is being provided to update the Guidelines and inform your transit system of all these changes. This Update is the third of four that will be published this year.
Prior to implementation of their drug and alcohol testing programs, many rural transit systems expressed concern regarding the cost of the program and the subsequent burden the program would have on the operating environment. Six months into the program, most of these concerns have not materialized or have been overcome. Even the most rural of states have been able to come into compliance in a cost-effective manner. Lowell Richards of the South Dakota Department of Transportation reports that all ten rural public transit systems in the state are in compliance with an average cost per test, including administration costs, of $88.17, which is far less than their original projection.
On July 19, 1996, the Department of Transportation published a final rule in Volume 61 of the Federal Register (pages 37693-37700) modifying its procedures regarding insufficient volume during urine specimen collection. Previously the rule stated that individuals who could not provide sufficient volume (45 ml) of urine should be instructed by the collection site person "to drink not more than 24 ounces of fluid, and after a period of up to two hours, again attempt to provide a complete sample." If the individual was still not able to provide sufficient volume, the individual had to be referred for a medical evaluation to determine whether the individual's inability to provide a specimen was genuine or constituted a refusal to test. In response to concerns expressed by many through a Notice of Proposed Rule-Making (July 25, 1995) it was determined that the two-hour period to obtain a sufficient volume is too short. Consequently, the DOT has revised the rule to allow up to three hours to obtain a complete sample. In addition, the fluid intake amount was raised from 24 to not more than 40 ounces during the period. The three hour period will provide a comfortable margin of safety to employees who may need additional time to generate a sufficient specimen and the 40 ounce level provides an enhanced chance for employees required to provide the required volume of urine. The rule does not propose a schedule for how the fluids should be consumed. The rule simply requires that the fluids be administered at reasonable intervals throughout the three hour period. If an individual refuses to drink fluids as directed or refuses to provide a new urine specimen, the individual will be considered to have refused the test which has the same consequences as a positive test. The effective date of this change was August 19, 1996.
If an individual is unable to provide a sufficient specimen within three hours of their first attempt, the collection process must stop and the employer must refer the individual for a medical examination to be conducted as soon as possible. The examination must be performed to determine whether the employee's inability to provide a sufficient specimen is medically "genuine." In the July 19, 1996 Federal Register (page 37699) Section 40.25 clarifies what constitutes an adequate medical explanation. The rule states that "a medical condition includes an ascertainable physiological condition (e.g., a urinary system dysfunction) or a documented pre-existing psychological disorder, but does not include unsupported assertions of "situational anxiety" or "dehydration." The physician's decision ultimately must be decided on a case by case basis. If the physician is unable to identify an adequate medical explanation as defined above, the individual's failure to provide a sufficient specimen shall be regarded as a refusal. The physician is required to provide the MRO with a brief written statement indicating whether or not the insufficient specimen was within a high degree of probability the result of a genuine medical condition. The written statement should not include detailed information on the medical condition of the individual. The MRO will in turn notify the employer in writing of the medical examination conclusion. The physician who performs the medical examination must be a licensed physician who is acceptable to the employer.
On July 19, 1996, Section 40.33 (f)(2) was added to 49 CFR Part 40 clarifying that the result of a split specimen test be reported by the MRO to both the employer and employee regardless of who pays for the test. The rule remains silent regarding who chooses the second DHHS certified laboratory for split specimen testing. The selection of the second lab should be considered a local decision. Most commonly the selection is made by the employer, employee, MRO or collective bargaining unit depending on local policy.
Upon receiving a confirmed positive test result from the laboratory, the Medical Review Officer is required to make every reasonable attempt to contact the individual to afford them the opportunity to discuss the test result. If the MRO can not reach the individual, the MRO is to ask the employer to contact the employee. Under the previous version of the rule, the test could not be verified as positive until the employee had been contacted and given the opportunity to discuss the result with the MRO.
However, in some cases, employees simply do not return to work following the test and/or are not able to be contacted, thus leaving the testing process incomplete. The Federal Register published on July 19, 1996 (pages 37699-37700) amended 49 CFR Part 40 to address this issue. The regulation states in Section 40.33(c)(5)(ii) that if neither the MRO or employer, after making all reasonable efforts, has been unable to contact the employee within 14 days after the MRO receives the laboratory result, the MRO may verify the test result as positive.
If the individual was not able to contact the MRO during the 14 day period due to serious illness, injury, or other circumstance beyond the control of the individual, the individual may present documentation to the MRO of such occurrence. Upon reviewing the information submitted, the MRO may re-open the process and allow the individual to provide an explanation for the positive test result. If the MRO concludes that there is a legitimate explanation, the MRO is to declare the test to be negative.
This amendment is based on the premise that the individual has
an obligation in all cases to participate in the verification process.
The drug and alcohol testing regulations require that individuals who test positive or refuse to take a test be referred to a Substance Abuse Professional (SAP) for assessment. The SAP's fundamental responsibility is to provide a comprehensive face-to-face assessment and clinical evaluation to determine if the employee needs assistance resolving problems associated with alcohol use or prohibited drug use and to recommend a course of treatment. The SAP must also determine if the individual has successfully completed the recommended treatment program and directs the employee's follow-up testing program. The DOT rule was amended on July 17, 1996 in the Federal Register (pages 37222-37224) to expand the SAP definition to read as follows: "A licensed physician (Medical Doctor or Doctor of Osteopathy); or a licensed or certified psychologist; social worker; or employee assistance professional; or an addiction counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission or by the International Certification Reciprocity Consortium/Alcohol and other Drug Abuse [Emphasis added]). All must have knowledge of and clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders." Individuals that do not meet these requirements can not serve as SAPs. Also, note that agencies or Employee Assistance Programs may employ individuals that are SAPs, but the agency program can not be considered the SAP; SAPs must be specific individuals.
Anecdotal information from transit systems, third party administrators, and some collection sites indicate that the standard operating procedures of some collection sites are in violation of the regulatory requirements. The most common violations are:
The FTA recipient is ultimately responsible for the quality of the collection process; thus recipients should work closely with their consortium, third party administrators and/or collection sites to ensure that the collections are performed consistent with the regulations.
As part of the collection process, the temperature of each urine specimen is checked to identify specimens that have been altered or substituted. If a specimen is outside the 90ºF to 100ºF range, the individual's body temperature is checked. More than 1.8ºF difference between the specimen and body temperature will result in an observed collection. The July 19, 1996 Federal Register, (page 37699) clarifies that an individual's body temperature can be measured by any medically accepted means, including oral and tympanic, but excluding rectal.
The regulations permit the disclosure of drug and alcohol testing results only under very limited circumstances (see Spring 1996 Update, page 4). Requests for test result information by an unemployment service bureau can be granted, if the individual's dismissal was a result of a positive drug or alcohol test. The information can be released under 49CFR section 653.75 (g) and 49CFR section 654.55 (g) which state information can be released to the decision-maker in a lawsuit, grievance, or other proceeding initiated by or on the behalf of the employee tested. Since the request for unemployment benefits was initiated by the employee, the employer may release the information to the decision-maker in a confidential manner.
FTA requires that transit agencies file annual reports summarizing test results (49CFR 653.53 and 49CFR 654.53) by March 15 of each year for the previous calendar year. FTA requires that transit systems use the Standard Management Information System (MIS) reports found in the back of the regulations. To avoid reporting problems, FTA provides the following guidance. Only FTA forms can be used. Do not alter the forms. Computerized replicas of the forms are acceptable. One form must be provided for alcohol and one for drug test results. Each form submitted must be an original signed by an authorized official of the transit agency. All forms must be typed or completed in ink. Each form must be completed in its entirety. The pre-employment portion of the alcohol form should be disregarded. EZ forms for alcohol test reporting can only be used if there were no test results indicating an alcohol concentration of 0.02 or greater. EZ forms for drug test reporting can only be used if there were no positive drug tests. Reports can not be filed by a consortium; individual transit agencies must submit their own reports. Each of the transit system's safety-sensitive contractors that fall under these regulations must complete a set of forms. The transit agency should bundle these forms along with the transit system's in its submittal to FTA. The transit agency should not summarize or co-mingle the results. Likewise, state DOTs should bundle the forms from each of the programs they administer in their submissions to FTA. All completed and bundled forms should be sent to the FTA Office of Safety and Security by March 15. Agencies that are required to bundle their submittals should request forms from their contractors or sub-recipients well in advance to ensure sufficient time for review and a timely submittal. Likewise, consortium members should request report data in time to meet the FTA deadlines.
Compliance with the FTA drug and alcohol testing program has been included as one of the elements that is assessed during the triennial review process. The review addresses certification and annual reporting, policy, and record-keeping. To prepare for this portion of the review, transit systems must be able to satisfactorily address the following items: Have the annual MIS reports been filed with the FTA? Is there a policy in place including all required elements? Are records maintained in a secured location with controlled access? Has it been clearly defined to whom test results may be released? Is the required testing being performed for all categories? Are approved USDOT Drug Testing Custody and Control Forms being used? Are approved USDOT Breath Alcohol Testing Forms being used? Are the laboratories used certified by the DHHS? Is the MRO a licensed physician with appropriate medical training and knowledge of substance abuse disorders? Does the SAP meet minimum requirements for licensing and clinical experience? Are employees with positive drug or alcohol tests referred to the SAP for evaluation? Is a NHTSA approved EBT used for confirmatory alcohol testing? Have BATs been trained on a NHTSA approved course of instruction? Have all safety-sensitive employees been given 60 minutes of training on illegal drug use awareness? Have supervisors received reasonable suspicion training: a minimum of 60 minutes on drugs and 60 minutes on alcohol?
In addition to Triennial Reviews, FTA will also be performing field audits on selected transit systems. Systems will be selected for an audit if problems are identified through MIS reports, triennial reviews, hotline tips, or media coverage. Other systems may be selected on a random basis.
Q. Is the employer compelled to pay for an employee's SAP evaluation?
A. No. The regulations are silent regarding who pays for the SAP evaluation, leaving the decision up to individual employers and/or labor-management negotiations, if applicable. A review of industry practice indicates that costs are commonly paid by either the employer, employee, or employee's insurance carrier.
Q. When does the employee training have to occur for new hires?
A.The 60 minutes of training on the effects and consequences of prohibited drug use must be provided to all new hires prior to the performance of safety-sensitive job functions. It is recommended that this training be included as part of the initial employee orientation training. Reasonable Suspicion training of supervisors must be conducted before they can make Reasonable Suspicion referrals.
The drug and alcohol testing regulations stipulate that only a trained supervisor can make reasonable suspicion determinations. The term supervisor refers to job function rather than job title. Depending on the organization, a number of individuals with varying job titles could serve in a supervisory capacity. Each of these individuals should receive reasonable suspicion training and be empowered to take action when they make specific, articulable and contemporaneous observations of the appearance, speech, behavior, or body odor of the employee that are consistent with probable drug abuse or alcohol misuse. The decision to test can only be made by trained individuals that directly observe the employee. Organizations that require other upper management personnel (i.e., Director of Personnel), to make the final testing determination are in violation of this regulation unless the person making the final determination has also been appropriately trained and has observed the employee. The supervisor that makes the actual observation does not have to be the employee's direct supervisor, but can be any trained supervisor within the organization.
The drug testing regulation require that a pre-employment drug test be conducted before an applicant is hired to perform a safety-sensitive job function, or before an employee is transferred into a safety-sensitive position.
In instances where a person is on temporary leave (i.e., vacation, sick, jury duty) no pre-employment test is required before the individual can resume their safety-sensitive duties. However, in instances where the individual's status within the agency changes or is reclassified (i.e., seasonal layoff, leave of absence, out or reassigned for worker's compensation), a pre-employment test is required prior to reassignment to a safety-sensitive job function.
The Chain of Custody and Control (CoC) Form that accompanies each urine specimen through the testing process serves as a vital piece of documentation that must be accurately and completely filled out. This form is used to document the exchanges of the specimen from the time of production by the donor until the test is completed. Since the form documents the chain of custody and serves as legal evidence that the reported test results apply to the donor, the employee should not have sole access to the form at any time and especially prior to the test. Rather, the CoC forms should only be available to the collection site and lab personnel and the MRO. By limiting access to the forms, the opportunity for tampering or altering the forms prior to the test is minimized. The employee will be provided with their copy of the form once the collection process has been completed.
The article on pre-employment drug testing found on Page 2 of the Spring 1996 issue of the Updates incorrectly stated that a negative pre-employment drug test result was required before an individual can perform a safety-sensitive job function. Instead, the article should have stated that an applicant must receive a negative pre-employment drug test before they are hired to perform safety-sensitive job functions.
If you have questions or comments regarding this information, please contact Pam Hughley , Technical Assistance and Compliance Manager.
This page maintained by Rachel Stewart.