FTA Drug & Alcohol Program Site Review Deficiency Report

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1 FTA Drug & Alcohol Program Site Review Deficiency Report TRANSIT OPERATOR Contact Person/ Title Date Ohio Rural Transit System DAPM June 22, 2012 Transit systems address and phone number Drug and Alcohol Program Management # Question Finding Regulation Action Item 1 Do you have a copy of the DOT and Federal Transit Administration testing regulations 49 CFR Parts 40 and 655? 2 Does this transit system document Reasonable Suspicion referrals? 3 How do you record the first date that new hires or transferees begin safetysensitive functions? DAPM had a copy of 49 CFR Part 40; however, she did not have a copy of 49 CFR Part 655. The DAPM indicated that the system does not have a form to document a Reasonable Suspicion referral if the occasion would ever arise. Currently, the transit system does not have a formal method of tracking the first date that new hires or transferees begin safety-sensitive functions Section states: "Each employer shall establish an anti-drug use and alcohol misuse program consistent with the requirements of this part." The DAPM should have available 49 CF Part 655 to use as a resource in complying with the FTA drug and alcohol testing requirements. Section (c) states: "The following specific records must be maintained: (1) Records related to the collection process:... (iii) Documents generated in connection with decisions to administer reasonable suspicion drug or alcohol tests." Section (a)(1) states: "Before allowing a covered employee or applicant to perform a safety-sensitive function for the first time, the employer must ensure that the employee takes a pre-employment drug test administered under this part with a verified negative result. An employer may not allow a covered employee, including an applicant, to perform a safety-sensitive function where she could go to bookmark a copy of Part 655 of FTA s website. The DAPM should provide a statement certifying that 49 CFR Part 655 is available as a resource. that I would forward her a copy of a sample form that she could use. The DAPM must provide a statement certifying that a procedure has been implemented in accordance with Part (a)(1) to record the first date that new hires or transferees begin safety-sensitive functions. 1

2 4 At what point in the hiring process do you ask the applicant or transferee whether or not they have failed or refused a DOT pre-employment test in the previous two years? 5 How is the random selection list transmitted to the DER and who has access to the list? 6 Who is responsible for deciding to perform a FTA post-accident test? (If DAPM, ask for knowledge of thresholds.) 7 What are the time limits for drug and alcohol postaccident testing? (if DAPM is involved in post-accident decision-making process) The system does not currently ask the specific question in accordance with Section 40.25(j) confidential mail; however, records indicate that the DAPM is consistently not receiving the random selection list at the beginning of each quarter Responding Supervisor(s) The DAPM was not able to accurately state the time limits for FTA drug and alcohol postaccident testing unless the employee takes a drug test administered under this part with a verified negative result." Section 40.25(j) states: "As the employer, you must also ask the employee whether he or she has tested positive, or refused to test, on any pre-employment drug or alcohol test administered by an employer to which the employee applied for, but did not obtain, safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two years. If the employee admits that he or she had a positive test or a refusal to test, you must not use the employee to perform safety-sensitive functions for you, until and unless the employee documents successful completion of the return-to-duty process (see paragraphs (b)(5) and (e) of this section)." Section (a) states: "An employer shall maintain records of its anti-drug and alcohol misuse program as provided in this section. The records shall be maintained in a secure location with controlled access." To ensure that the random testing process is not compromised, random testing lists should be transmitted by a secure means and only to individuals authorized to receive such information. Section 40.3 defines "Designated employer representative (DER)" as "An employee authorized by the employer to take immediate action(s) to remove employees from safetysensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs." Section (ii) states: "(ii) If an alcohol test required by this section is not administered within two hours following the accident, the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. If an alcohol test required by this section various methods on how to accomplish this requriement. The DAPM must submit a statement explaining how the system will meet the requirements of section 40.25(j) by asking whether the individual has tested positive, or refused to test, on any preemployment drug or alcohol test administered by an employer to which the employee applied for, but did not obtain, safety-sensitive transportation work covered by USDOT during the last two years. The DAPM msut provide a statement explaining the procedures put into place to ensure that the random selection list is sent to the DAPM in such a way that the DAPM will have the entire quarter to perform the required tests The DAPM must ensure that the responding supervisors, that are making FTA postaccident testing decisions, are fully aware of the thresholds for FTA post-accident testing. The DAPM must submit a statement certifying that all supervisors authorized to make FTA post-accident drug and alcohol testing decisions are aware of the thresholds as listed in 49 CFR Part The DAPM must provide a statement certifying that she understands the FTA postaccident testing tiem limits in accordance with 49 CFR Part (ii) 2

3 is not administered within eight hours following the accident, the employer shall cease attempts to administer an alcohol test and maintain the record. Section (b) states: "An employer shall ensure that a covered employee required to be drug tested under this section is tested as soon as practicable but within 32 hours of the accident." 8 Have the transit system and the MRO or C/TPA established a password or other verification method to ensure that verbal transmission of positive test results from the MRO is secure? No Section (b) states: "You (the MRO or C/TPA) must transmit to the DER on the same day the MRO verifies the result or the next business day all verified positive test results, results requiring an immediate collection under direct observation, adulterated or substituted specimen results, and other refusals to test. (1) Direct telephone contact with the DER is the preferred method of immediate reporting. Follow up your phone call with appropriate documentation (see Section ). (2) You are responsible for identifying yourself to the DER, and the DER must have a means to confirm your identification." The transit system needs to establish a password with the MRO and with the Collection Site Technicians for verbal transmission of positive test results in accordance with 49 CFR Part PROVISIONS CONTRARY TO FTA REGULATIONS: Do any provisions found in the policy have the effect of thwarting the FTA regulations? See Notes Policy Review 1) Section (a)(5) states:... a state-licensed or certified marriage and family therapist; 2) Section and list the DOT test refusals 3)49 CFR Part 40, as amended 4) Section (b)(2): you may, but are not required to, direct the employee to take another test immediately. (i) Such recollections must not be collected under direct observation, unless there is another basis for use of direct observation (see (b) and (c)). (ii) You must treat all employees the same for this purpose. For example, you must not retest some employees and not others. You may, however, establish different policies for different types of tests (e.g., conduct retests in pre-employment situations, but not in random test situations). You 1) The definition of Substance Abuse Professional does not include family-marriage therapist 2) On Page 6 and page 22, the list of Test Refusals does not match what is in Part 40. Only refusals mentioned in Part 40 can be listed. The first listed refusal (Consumes alcohol within eight (8) hours following involvment in an accident without first having submitted to post accident drug/alcohol test) must be removed. Also, the 3 rd refusal listed ( is suspected of providing false information in connection with a drug test) needs to be removed. This is covered in be uncooperative 4) Section Q, Paragraph 3 must be removed from the 3

4 10 EMPLOYER SPECIFIC ELEMENTS: If the employer implements elements of an anti-drug program and alcohol misuse prevention program that are in addition to those required by Section 655, does the policy give covered employees specific information concerning which provisions are mandated by the FTA rules and which are not? Are any such additional policies or consequences clearly and obviously described as being based on independent authority? See Notes must inform your employees in advance of your decisions on these matters. 1-5) Section (j) states: "The employer shall inform each covered employee if it implements elements of an anti-drug use or alcohol misuse program that are not required by this part. An employer may not impose requirements that are inconsistent with, contrary to, or frustrate the provisions of this part." policy. The transit system cannot have a stand-down policy in place without a waiver from U.S. DOT. The transit system does not have a waiver and so this must be removed from policy and any performance of such procedures must cease. 3) Section N, number 6, page 20 needs to be removed. 4) On the first paragraph of section Q, Page 21, the last sentence of the first paragraph reads A drug test with the result of negative dilute will/will not be retested. You, as the employer, are required to choose between will and will not in the situationof retesting for a negative dilute. 1) Section E, Paragraph 3, page 9 the last sentence must be underlined as it is under the sole authority Services for Aging 2) Section H, 2 nd paragraph, the words will be terminated need to be underlined 3) Section J, 2 nd paragraph, page 14, the words the consequences of a positive alcohol test is termination must be underlined. 4) Section ), first sentence, Page 20, the words Services for aging, Inc will terminate the employment of any employee that tests positive or refuses a test as specified in section Q of this policy must be underlined 5) Section q, page 21, the following words need to be underlined and their employment terminated Urine Collection 4

5 11 After the employee completes (Copy 2) Step 5 of the CCF, does the collector then complete Step 4 (i.e., providing a signature, printed name, date, time of collection, and name of delivery service)? 12 What is done if the employee possesses a prosthetic or other device used to tamper with the collection? The collector did not indicate the name of the delivery service. She did write the word Courier ; however, the specfic name of the courier service should be inclueded as well. The collector was not completely confident in what is done if the employee possesses a prosthetic or other device used to tamper with the collection Section 40.73(a)(2) states: "Complete the chain of custody on the CCF (Step 5) by printing your name (note: you may pre-print your name), recording the time and date of the collection, signing the statement, and entering the name of the delivery service transferring the specimen to the laboratory." Section 40.45(b)(4) states: "As a collector, you may use a CCF with your name, address, telephone number, and fax number preprinted, but under no circumstances may you sign the form before the collection event." Section (a) states: (a) As an employee, you have refused to take a drug test if you: (10) Possess or wear a prosthetic or other device that could be used to interfere with the collection process. The collector must provide a statement ceritfying that she understands the requirement of Section 40.73(a)(2) to include the name of the delivery service. Also, the collector must ensure that all other collectors at the site are aware of and understand the same requirement. The collector must refresh herself on the requirements of 49 CFR Part (a) 13 If the initial transmission is by telephone, is a mechanism established to verify the BAT's identity before providing the information? no BAT Section (a)(5)(i) states: "For any test results not in writing (e.g., by telephone or electronic means), a mechanism must be established to identity the BAT sending the results." The collection site must establish a password with the DER to ensure confidentiality for verbal transmission of test results in accordance with (a)(5)(i) 5

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