FTA Drug And Alcohol Regulation Updates
Winter 2004 Issue 26
The Federal Transit Administration (FTA) published its revised rule on prohibited drug use and the prevention of alcohol misuse (49 CFR Part 655) on August 1, 2001. The FTA published the revised 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 amendments, 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 these changes. This Update is the twenty-sixth in a series.
Several key Department of Transportation (DOT) drug and alcohol testing program officials have changed positions. On July 28, 2003, Mark Snider, a Transit Safety and Security Specialist who served as the FTA Drug and Alcohol Program Manager, left that position to become a Program Analyst Officer for the DOT Office of Drug and Alcohol Policy and Compliance (ODAPC). Mr. Jerry Fisher, a Senior Safety and Security Specialist and long time proponent of the FTA regulations has been named the Program Manager. Mr. Fisher can be reached at (202) 366-1651 or firstname.lastname@example.org. Harry Saporta, Director of Transit Safety and Security left FTA at the end of the year to join the private sector. Cindy Terwilliger has been appointed the Acting Director of Transit Safety and Security. Ms. Terwilliger can be reached at (202) 366-6577 or email@example.com. Kenneth Edgell, Acting Director of the ODAPC, retired in February. Jim L. Swart, a Drug and Alcohol Policy Advisor with the ODAPC, has been appointed the Acting Director in his stead. Mr. Swart can be reached at (202) 366-3784, or firstname.lastname@example.org.
Over the next calendar year, the electronic publication and distribution of this newsletter (FTA Drug and Alcohol Regulation Updates) will be phased-in. To facilitate this effort, all recipients of this newsletter are asked to email the editor with a current email address. This address will be added to the database and used as the basis for distribution of future issues. The Spring issue will be distributed to the database using both the internet and the U.S. Postal service. The Summer and Fall issues will be distributed via the Internet to those who have provided an email address. Hard copies will only be mailed to those individuals who have requested to remain on the mailing list, but do not have access to the Internet. Those individuals who do not respond to confirm their continued interest in receiving the newsletter will be purged from the database. To provide your email address or to request continued receipt of hard copies please contact the editor at email@example.com, or call (937) 299-5007 or fax (937) 299-1055.
One-Day FTA Seminar Offered FTA is offering a one-day seminar to present a high-level overview of 49 CFR Parts 40 and 655. The presentation will also include a discussion of the new MIS form and recommendations for addressing prescription and over-the-counter drug use by safety-sensitive employees. The seminars are free of charge, however, all attendees must register in advance as space is limited. To register or to obtain more information, contact Olivia D. Alexis at (617) 494-3344 or (617) 494-3798 or by email at firstname.lastname@example.org. Dates and locations of remaining seminars:
March 16, 2004 Nashville, TN Notice: The Fall 2003 issue of this newsletter was delayed. We subsequently consolidated the Fall 2003 and Winter 2004 Issues. Thus, this newsletter is Issue #26 in the series.
March 18, 2004 Mandeville, LA* April 20, 2004 Sioux Falls, SD May 4, 2004 Flint, MI May 17, 2004 Brooklyn, NY May 18, 2004 Brooklyn, NY * Mandeville is 35 miles from New Orleans
FTA Drug and Alcohol Regulation Updates Issue 26, page 2
49 CFR Part 655, Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations
August 9, 2001 Federal Register Vol. 66 Pages 41996 - 42036
December 31, 2003 Federal Register Vol. 68 Pages 75455-75466 Primary Topic: One Page MIS Form
Notice of Interpretation: April 22, 2002 Federal Register Vol. 67, Pages 19615-19616 Primary Topic: FTA/USCG regulation applicability to ferry boats.
The information presented on this page should be used to update Chapter 10 of the revised Implementation Guidelines. MIS Forms Due March 15 The Federal Transit Administration (FTA) joined the other four Department of Transportation (DOT) agencies in adopting a single one-page Management Information System (MIS) form for use in reporting drug and alcohol test results. The final rule requiring the use of the form was published in the Federal Register (Volume 68, Number 250, pages 75455-75466) on December 31, 2003. The form is provided in 49 CFR Part 40 and was published in the Federal Register on July 25, 2003 (§40.25 and Appendix H). The final rule requires all covered employers to use the new MIS form for its 2004 submission that documents calendar year 2003 data.
The new form significantly reduced the number of data items to be reported. No longer are FTA-covered employers required to report funding source information, education and training data, return-to-duty information, accident information, or number of individuals denied positions due to positive test results. This information remains important and FTA may choose to use other data collection methods to obtain this information (i.e., triennial reviews, drug and alcohol compliance audits), but the standardized MIS form will be used to collect base information that is consistent among the DOT modes. The new form simplifies and streamlines the data recording and reporting procedures and is more easily processed electronically.
The new form is comprised of four sections: employer information; covered employees information; drug testing data; and alcohol testing data. The employer information is to be provided only once per submission. However, a separate page of data must be submitted for each category of safety-sensitive employee for which the employer reports testing data. For example, employers that have revenue vehicle operators, dispatchers, and mechanics must submit three separate pages, one for each category. An FTA-covered employer that has revenue vehicle operators, revenue vehicle and equipment maintenance, revenue vehicle control/dispatch, CDL/non-revenue vehicles and armed security personnel would have to submit five forms, one for each category.
The instructions to the new one page form also clarify the definition of “positive rate” for random drug testing and “violation rate” for alcohol testing. Both of these terms are used when FTA calculates the required minimum random rates of testing for each year (see article Page 4). The new rule also defines how individual employers are to determine the number of random drug and alcohol tests to be conducted each year (see article page 4).
Employers with safety-sensitive employees that perform duties under more than one DOT agency (i.e., FTA and FMCSA) are to report the data on the MIS report for the DOT agency under which he/she is randomly tested. This is the agency under which the employee performs more than fifty percent (50%) of his or her safety-sensitive duties.
Regardless of who completes the form (the transit agency program manager, service agent or third party administrator), an official of the covered employer must certify the accuracy and completeness of the form. All FTA grantees and states have been selected to report 2003 MIS information to FTA. The reports are due by March 15, 2004. Hard copy submissions should be mailed to the FTA Drug and Alcohol MIS Project Office, DTS-781, Volpe National Transportation Systems Center, 55 Broadway, Kendall Square, Cambridge, MA 02142. Hard copies are available on the FTA Office of Safety and Security website (see last page for URL). However, Internet reporting is strongly encouraged.
To facilitate electronic filing, each grantee has been issued a user ID and password. Each grantee has also received a user ID and password for each contractor/subrecipient. If a grantee has new contractors or subrecipients, the agency should contact the FTA Drug and Alcohol MIS (DAMIS) Project Office to request additional passwords. The DAMIS office can be reached at (617) 494-6336, or email@example.com. Electronic reporters should file online at http://damis.dot.gov.
State DOTs are to facilitate and check for accuracy submittals of their Section 5311 subrecipients. Similarly, grantees are to facilitate and check the accuracy of their contractor and subrecipient submittals. In both circumstances, the grantee/State DOT must review the subrecipient’s data and accept or reject it. The submittal must be accepted by the grantee/State DOT for the submittal to be considered complete. Once all information has been completed and all errors and warnings have been addressed, an official of the covered employer must sign the submission before it is mailed. Internet submissions can be signed by clicking the Electronically Sign button. The date and time of submission will appear.
FTA Drug and Alcohol Regulation Updates Issue 26, page 3[Top]
FTA Drug and Alcohol Regulation Updates Issue 26, page 4
Where to Find? ..... 49 CFR Part 40, Procedures for Transportation
Revised: December 19, 2000 Federal Register Vol. 65, Pages 79462-79579. Primary Topic: Procedures for Transportation Workplace Drug and Alcohol Testing Program Revised Final Rule (49 CFR Part 40)
July 25, 2003 Federal Register 68 Pages 43946-43964 Primary Topic: One Page MIS
January 22, 2004 Federal Register Vol. 69 Pages 3021-3022 Primary Topic: Expand List of SAPS
Technical Amendments: August 1, 2001 Federal Register Vol. 66 Pages 41943-41955 Primary Topic: Clarifications and Collections to Part 40; Common Preamble to Modal Rules
Interim Final Rule May 28, 2003 Federal Register Vol. 68 Pages 31624-31627 Primary Topic: Substitute and Dilute Specimen
The information presented on this page should be used to update Chapter 6 of the revised Implementation Guidelines.
On January 5, 2004, the Federal Register (Volume 69, Number 2, Page 389) announced the random testing rates for employers subject to the Federal Transit Administration’s (FTA) drug and alcohol rules. The random testing rate for drugs remains at fifty percent (50%) while the random testing rate for alcohol remains at ten percent (10%). This means that a DOT-covered employer (or designated third party administrator) with one hundred safety-sensitive employees must conduct at least fifty random drug tests and at least ten random alcohol tests to be in compliance.
The testing rates are dependent on the industry’s drug “positive rate” and alcohol “violation rate” for the preceding two years. The drug “positive rate” means the number of verified positive drug test results plus the number of random test refusals, divided by the total number of random specimens collected. In order to clear up any discrepancies, the FTA will count the number of random specimens collected as the number of random testing events resulting in a verified negative, verified positive, and refusal to randomly test no matter the reason for the refusal. The transit industry’s positive rate for drugs in 2001 was 0.89 percent and 1.05 in 2002. Since the rate did not dip below 1.00 for two consecutive years, the random testing rate remains at fifty percent.
The alcohol “violation rate” is similar to the drug “positive rate” except that it measures the number of confirmation tests with results of 0.04 or greater plus the number of random test refusals divided by the total number of random screening test results. In order to clear up any discrepancies, the FTA will count the number of random screening test results as the number of random screening testing events resulting in a result below 0.02, result of 0.02 or greater, and refusal to randomly test no matter the reason for the refusal. The alcohol violation rate for 2001 was 0.19 and 0.22 for 2002. Since the rate did not rise above 0.50, the random alcohol testing rate remains at ten percent.
Cancelled tests are not included in the calculation, as they do not count toward the number of tests needed to meet the employer’s minimum random test rate (§40.207(b)).
As stated in the previous article, the random testing rates will remain the same (50% for drugs and 10% for alcohol) in 2004. The manner in which the random testing rates are used to generate the actual number of tests to be performed by individual employers was clarified in the Part 655 amendment published on December 31, 2003. This amendment (§655.72 (e)) explains that to calculate the total number of covered employees subject to testing for a testing period, each employer must add the total number of covered employees eligible for testing during each random testing period for the year and divide that total by the number of random testing periods.
Thus, if the employer selects random numbers monthly and has one hundred safety-sensitive employees in January, the employer has 8.33 employees (100/12) to which the annual random rate (50%) applies for the month. Thus, the employer should conduct 4.17 or 5 drug tests in January (100/12*50%). Always round up to the next largest whole number. If in February the employer has only seventy-five covered employees, the employer should conduct 3.13 or 4 drug tests in February (75/12*50%), and so on for each month. For a more detailed explanation see the article on page 2 of Issue 12 of the Updates.
Only DOT covered employees can be placed in the employer’s random testing pool. All safety-sensitive employees that may be called on to work during the testing period must be in the random pool and all employees that are not expected to work during the period (i.e., leave of absence, retired) should be removed. If you select random numbers more frequently than monthly, you do not need to compute the total number of covered employee rate more often than once per month.
If your covered employees are part of a larger random testing pool, this pool must follow the same procedure to determine how many tests to perform for each testing period. The testing pool as a whole must meet the testing rate requirements even though individual employers may not. If the testing pool is in compliance then all participating employers are considered to be in compliance. If the pool fails to meet the required random rates, then all participating employers are not in compliance. Therefore, it is important for all employers that use a third party to administer their random selection process to ensure that the third party is testing at the appropriate FTA established percentages and that only covered employees are in the random testing pool.
Updates Issue 26, page 5
On January 15, 2004, the Associated Press published an article stating that the federal government is planning to incorporate alternative testing methods (i.e., hair, saliva and sweat) into its employee drug testing program. The Substance Abuse and Mental Health Services Administration (SAMHSA), a division of the Department of Health and Human Services, is planning to publish a formal Notice of Proposed Rulemaking (NPRM) very shortly. The proposed rule will cover all federal safety-sensitive workers eligible to be tested. This would not include any DOT/FTA covered employees. However, SAMHSA standards are followed by the DOT and therefore, may have implications for DOT/FTA employers in the future. The proposed changes promise to provide more precise drug screening and to make it more difficult for individuals who try to beat urine drug tests. The program that covers 1.6 million federal employees may be go into effect within one year. Should these same changes be considered by DOT, a rulemaking process will be undertaken with ample opportunity for comment. Thus, DOT/FTA covered employers should be aware of these activities, but not expect any changes in the near future.
Following an initial alcohol screen that has a test result of 0.02 or greater, the Breath Alcohol Technician (BAT) must wait at least 15 minutes, but no more than 30 minutes to conduct the confirmatory test. During this wait time the BAT must instruct the employee not to eat, drink, put anything into his or her mouth, or belch. The BAT must explain the reason for the wait to the employee and that the wait is to benefit the employee. The BAT or other employer representative must observe the employee during the waiting period.
In several recent instances, FTA has been made aware that in an effort to save time, BATs transfer the employee to a urine collector to conduct the urine specimen during this wait time. Even though not explicitly prohibited, this procedure is clearly not consistent with the intent of the regulation. First, the employee cannot be under the direct observation of the BAT as required by §40.251(a)(1)(iii) while in the privacy enclosure for the drug test. Additionally, §40.223(a)(2) states that the entire screening and confirmation process must be completed on one employee before starting the screening process on another employee. The implication is that one test should be completed from beginning to end before another test is initiated. Consistently, the rule emphasizes that the integrity of the testing process is not to be compromised. Therefore, BATs should complete each alcohol test in its entirety prior to beginning the urine specimen collection process.
All contractors that perform safety-sensitive functions for an FTA grantee/subrecipient are required to have a compliant program even if the duration of the activity is limited. Contractors that provide special event transportation for sporting events, interim transportation during a labor dispute, supplemental service during service transitions, demonstration projects, etcetera, must have a compliant program and be sure that all safety-sensitive employees are pre-employment tested and placed in a random testing pool.
Issue 22 of this newsletter summarized an FTA Letter of Interpretation dated March 26, 2002 regarding end-of-shift testing. The Letter stated that the employer has limited discretion regarding the scheduling of random tests, however, an employer can establish a process for employees who provide advance, verifiable notice of scheduled medical or childcare commitments, to be tested no later than three hours before the shift ends.
FTA has now clarified this interpretation to distinguish between drug and alcohol testing. The three hour timeframe is only for drug testing (NYCMTA letter of Interpretation 8/18/03). Alcohol tests are to be scheduled no later than one/half hour before the shift ends for those individuals who provide advance, verifiable notice of scheduled commitments. This interpretation does not require employers to make these end of shift provisions, but does define the timeframes that an employer must follow should it choose to incorporate them. Where To Find?..... FTA Drug & Alcohol Discussion Forum: http://transit-safety.volpe.dot.gov/Safety/ BBS
Drug and Alcohol Audit Questions http://transit-safety.volpe.dot.gov/Safety/ DATesting/Audit
FTA Drug and Alcohol Regulation Updates Issue 26, page 6
DHHS Labs The current list of DHHS certified labs is published the first week of each month and is printed in the Federal Register under the Substance Abuse and Mental Health Services Administration (SAMHSA) heading. Only those labs certified can be used for FTA drug testing. The list should be checked monthly as new labs are being added and others are being removed.
Website location: www.workplace.samhsa.gov/ ResourceCenter/lablist.htm
To verify the certification status of a laboratory, DHHS has established a telephone HELPLINE (800) 843-4971.
The information presented on this page should be used to update Chapters 2 and 9 of the revised Implementation Guidelines.
On January 22, 2004, the Office of Drug and Alcohol Policy and Compliance (ODAPC) added drug and alcohol abuse Master Addictions Counselors (MAC) certified by the National Board for Certified Counselors, Inc. and Affiliates (NBCC) to those eligible to be substance abuse professionals (SAPs) under 49 CFR Part 40. Counselors with NBCC MAC certifications must also meet the additional requirements for basic knowledge, training, examination, and continuing education required of all SAPs before performing SAP duties.
SAPs with the MAC certification join licensed physicians, licensed or certified social workers, licensed or certified psychologists, licensed or certified employee assistance professionals, and drug and alcohol counselors certified by the National Association of Drug Abuse Counselors Certification Commission (NAADAC) or by the International Certification Reciprocity Consortium/Alcohol and Other Drug Abuse (ICRC).
The recognition of MAC certified counselors resulted in an immediate increase in the number of counselors eligible to become SAPs. This increase is timely as the deadline for the SAP “qualification training” requirement passed on December 31, 2003. As a result, an unknown number of practicing SAPs that have not met the “qualification training” requirement are no longer eligible to perform SAP duties as of this date.
On December 2, 2003, the United States Supreme Court decided a case that has potential implications for all employers with DOT covered drug and alcohol testing programs. The case, Raytheon Co. v. Hernandez, centered on the question of whether an individual’s civil rights were violated when the company refused to rehire him following a positive drug test and subsequent rehabilitation. The company had a policy not to rehire previous employees that were fired for misconduct.
Hernandez argued that the company violated the Americans with Disabilities Act (ADA) by refusing to hire him because of his past drug addiction. The ADA protects individuals with disabilities from discrimination. Current drug use is not protected by the ADA, but an individual with a previous drug addiction that has been rehabilitated is afforded ADA protections.
The Court decided, however, that the employer’s neutral no-rehire policy did not unlawfully discriminate against Hernandez on the basis of a disability. The court decided in a 7-0 ruling that a no-rehire policy based on employee misconduct was a legitimate reason for not rehiring the individual and did not constitute discrimination. The no re-hire policy was clearly stated in the company’s employee handbook and the company consistently enforced the no re-hire policy for all misconduct, not just that associated with drug or alcohol use.
Gonzalez v. Metropolitan Transportation Authority was initially filed in April 1996 on behalf of a radio dispatcher and instructor employed by the Los Angeles County Metropolitan Transportation Authority (LACMTA). The plaintiffs argued that their positions were not safety-sensitive and consequently should not be subject to FTA drug and alcohol testing. The 9th U.S. Circuit Court of Appeals based in San Francisco questioned whether the employees at issue would pose a substantial immediate threat to public safety if impaired by drugs or alcohol, or whether the procedure for testing them would be reasonably effective for finding out if they were impaired, or whether the tests as performed were an undue invasion of their privacy.
Onlookers followed this case very closely as the outcome had potential implications for raising the standard for safety-sensitive job functions. On January 6, 2004, however, the final judgment was entered in favor of the LACMTA and against the plaintiffs. The court determined that the job duties performed by the radio dispatcher and the instructor were sufficient to be considered safety-sensitive, and thus, the plaintiffs were subject to FTA drug and alcohol testing. The court upheld as constitutional, random drug testing of employees who may be called upon to perform safety-sensitive tasks, regardless of frequency.
Rx & OTC Medications FTA Drug and Alcohol Regulation Updates Issue 26, page 7
All FTA employers are strongly encouraged to provide training to all safety-sensitive employees regarding the potential dangers associated with the use of prescription (Rx) and over-the-counter (OTC) medications. Even though the training is not a requirement, the training is an essential component of a comprehensive program designed to minimize the potential safety risks associated with the use of Rx and OTC medications. An effective employee awareness training program will include the following elements: Purpose and overview of the Rx/OTC policy Applicability to safety-sensitive employees Risks associated with Rx/OTC use Definition of Rx and OTC and list of common medications by category Directions on how to read a label Directions on how to read pharmacy Rx information sheets Side effects of concern Overview of company’s procedures for notification and reporting Consequences of policy violations Leave policy and limitations on use Employee responsibility Employer responsibility There are various sources of training aids available to assist employers in creating a training program. These include generic awareness pamphlets prepared by government agencies and non-profit organizations. Most of the information is provided as a public service and is distributed free of charge.
U.S. Food and Drug Administration www.fda.gov Consumer Healthcare Products Association www.chpa-info.org Center for Drug Evaluation and Research www.chpa.info.org National Council on Patient Information and Education www.bemedwise.org Agency for Health Care Policy and Research www.ahrq.gov Agency for Health Care Research and Quality www.ahrq.gov
The materials present information in a concise, easy-to-understand format and are suitable for many different audiences. The materials highlight major points, but usually do not address points in detail. In most cases, the information is presented in pamphlet form, but can also be found as payroll stuffers and bulletin board displays. The materials are generic in nature and are not specific to the transportation industry. However, they are good to use as introductory and supplemental materials. In addition to these materials, the Rx/OTC Toolkit provides examples of presentations used by FTA and several transit systems including power point presentations, flyers, and sample policy summaries. Information can be taken directly from these examples and modified accordingly.
Many employers conduct Rx/OTC training as a stand alone training course while others incorporate the material into a fitness for duty or an illegal drug and alcohol awareness training session. If possible, have a medical practitioner involved in the training or at least available for questions. Information hotlines and nurse help-lines can also prove to be valuable resources.
Demand for the FTA Prescription and Over-The-Counter Medications Toolkit and Best Practices Manual was greater than expected and the initial print run has been depleted. The manuals are being reprinted and will be available shortly. Both can be downloaded by going to http://transit-safety.volpe.dot.gov/publications. If you would like to order a print copy, contact Ms. Alison Thompson at firstname.lastname@example.org or fax your request to (617) 494-2684. The manual will be mailed to you when available. Where to Find? .....
Conforming Products List Evidential Breath Testing (EBT) Devices July 21, 2000 Federal Register Vol.65 Pages 45419 - 45423 Primary Topic: Conforming Products List (CPL) Website location: www.nhtsa.gov/ people/injury/alcohol Note: This list will be updated periodically.
Non-evidential Testing Devices May 4, 2001 Federal Register Vol.66 Pages 22639 - 22640 Primary Topic: Initial Alcohol Screening Devices
Note: This list will be updated periodically.
The information presented on this page should be used to update Chapter 5 of the revised Implementation Guidelines.
FTA Drug and Alcohol Regulation Updates Issue 26, page 8
In an attempt to keep each transit system well informed, we need to reach the correct person within each organization. If you are not responsible for your system's Drug and Alcohol program, please forward this update to the person(s) who is and notify us of the correct listing. If you know of others who would benefit from this publication, please contact us at the following address to include them on the mailing list. This publication is free.
RLS & Associates, Inc. 3131 South Dixie Hwy. Suite 545 Dayton, Ohio 45439 Phone: (937) 299-5007 FAX: (937) 299-1055 email@example.com FTA home page: www.fta.dot.gov FTA Office of Chief Counsel: http://www.fta.dot.gov/office/chiefc FTA Office of Safety & Security: http://www.fta.dot.gov (then click on Safety & Security) FTA Letters of Interpretation: http://www.fta.dot.gov/library/legal/dral/02toc.htm DHHS-Certified Laboratories: http://www.workplace.samhsa.gov/ResourceCenter/lablist.htm Center for Substance Abuse Prevention: http://prevention.samhsa.gov FTA, Office of Safety and Security: (202) 366-2896 Best Practices Manual: FTA Drug & Alcohol Testing Program Drug and Alcohol Consortia Manual Drug and Alcohol Testing Results: 1995, 1996, 1997, 1998, 1999 and 2000 Annual Reports Random Drug Testing Manual Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit, Revised 2002 Reasonable Suspicion Referral for Drug and Alcohol Testing (Leaders’ Guide & Video) FTA Drug and Alcohol Program Assessment Prescription and Over-The-Counter Medications Toolkit USDOT Drug and Alcohol Documents FAX on Demand: 1 (800) 225-3784 USDOT, Office of Drug and Alcohol Policy and Compliance: (202) 366-3784 Urine Specimen Collection Procedures Guideline Substance Abuse Professional Guidelines
FTA - Office of Safety and Security 400 7th Street, SW Washington, DC 20590
USDOT-John A. Volpe National Transportation Systems Center Kendall Square Cambridge, MA 02142
RLS & Associates, Inc. 3131 South Dixie Hwy.Suite 545 Dayton, OH 45439