Omnibus Transportation Employee Testing Act (OTETA)

1. Omnibus Transportation Employee Testing Act (OTETA) A Basic Course in DOT Drug & Alcohol Testing Programs Dr. Donna Smith FirstLab, Inc. www.firstlab.com

2. History & Rationale • 1991 Omnibus Transportation Employee Testing Act mandated drug and alcohol testing for all Commercial Driver’s Licensed (CDL) employees • Requirements for testing are detailed in FMCSA regulation 49 CFR Part 382 and the procedures for conducting the testing are found in 49 CFR Part 40 • OTETA was aimed at preventing illicit drug use and alcohol misuse by employees in public transportation occupations to promote and protect public safety

3. Program Basics • Each employer must: • Have a written substance abuse policy • Appoint a Designated Employer Representative (DER) • Conduct required drug and alcohol testing in accordance with Part 40 procedures • Conduct Reasonable Suspicion Training for supervisors • Provide drug and alcohol education materials or training for all CDL employees • Maintain records and documents as required by DOT regulations • Conduct a check for previous drug and alcohol violations with prior employers for all CDL applicants

4. Substance Abuse Policy • Identify prohibited drug and alcohol-related conduct • Explain drug and alcohol testing requirements and testing procedures • Define safety-sensitive duty and positions • State consequences and disciplinary actions for violation of policy • Provide a copy of the policy to each employee and maintain documentation that employee has received and understands the policy

5. Designated Employer Representative (DER) • Serves as point of contact for the testing program • Receives test results from the Medical Review Officer and Breath Alcohol Technician (BAT) • Ensures that drivers who violate the policy are removed from driving duties and meet return to duty requirements, if they return to work • Ensures that drivers are in a random testing pool

6. DOT Testing Procedures • 49 CFR Part 40 • Applies to Employers. Employees, Service Agents • Specimen Collection, Laboratory analysis, MRO, Alcohol Testing • SAP and Return to Duty Process • TPA functions • Confidentiality and Release of Information

7. Reasonable Suspicion Training • Required for all supervisors of CDL employees • Minimum of 2 hours • Signs and symptoms of drug/alcohol misuse • Criteria for reasonable suspicion testing • Procedures for documenting R/S testing and getting employee tested • Training can be classroom, video, computer-based

8. Employee Drug and Alcohol Awareness Information • Educational materials or training classes must be provided to all CDL employees • Information must include: • Prohibited conduct • Testing requirements and procedures • Consequences and disciplinary actions • Employee rights and responsibilities in testing program • Alcohol and drug abuse awareness information • Information on getting help with a substance abuse problem • Employee must sign acknowledgment of receipt of information/materials

9. DOT Employee Booklet Available at www.dot.gov/ost/dapc

10. Record Keeping • Employers or their TPA must keep extensive records • Test results, including CCFs • Random testing documents • P/A and R/S testing documentation • Prior Employer checks • Supervisor and employee training records • SAP & RTD documents

11. Check for Previous Drug & Alcohol Violations • Required at time of application or transfer to a CDL position • Applicant must sign release, identifying employers in past 2 years • Prospective employers must contact prior employers, provide signed release and request info on D & A violations • If previous employers report a DOT violation and applicant is hired, new employer must ensure SAP process is complete and FU testing is conducted

12. FMCSA 49 CFR Part 382 • Safety-sensitive positions: CDL drivers • Pre-employment, reasonable suspicion, post-accident, random, return to duty and Follow-up testing • For pre-employment only a drug test is required • 24 out-of-service for 0.02—0.039 BrAC

13. Pre-employment Test • Negative result on a PE drug test required • Applies to employees transferring into a CDL position, as well as new-hires • PE test exception allowed if applicant has been in a DOT testing program with a prior employer for past 12 mos. • Applicants who are positive or refuse to test cannot be hired and must be provided SAP referral information • If reapplication is allowed, completion of SAP process must be documented

14. Reasonable Suspicion Testing • Based on the observations of a supervisor who has completed R/S training • Supervisor’s observations must be documented on a form or written report • R/S tests must be completed ASAP after decision to test is made • If both alcohol and drug tests are indicated, the alcohol test should be conducted first • Employee should be escorted to testing site • Employee should not be permitted to return to work after testing; transportation home should be offered • RTW only after test results are received

15. Post-Accident Testing • Post-Accident testing required if: • Fatality • Driver citied for violation and • Injuries requiring medical treatment away from scene, or • Disabling damage to vehicle requiring towing • Law enforcement P/A tests can be used in lieu of employer’s test • Post-accident tests must be conducted ASAP • Alcohol—within 2 hrs, if longer must document and complete by 8 hrs • Drug—ASAP—but within 32 hrs.

16. Random Testing • Selection for random testing must use a scientifically valid random number selection process • Selections must be made at least 4 times per year and spread reasonable throughout the year • All CDL drivers must be in the random pool from which selections are made • Once notified of selection for random test, the driver must proceed immediately to complete the test • Number of random drug tests conducted must be at least 50% of CDL population; random alcohol tests must be at least 10% • If a selected driver is not available for testing during the selection period (month, quarter, etc.), the reason for not testing must be documented • If alternates were selected, they may be tested instead of unavailable drivers • If drivers are removed from the random pool for more than 30 days, they must have a pre-employment drug test when they return to driving duties • If a test result is cancelled, the test does not count toward the annual percentage.

17. Best Practices for DOT Random Drug & Alcohol Testing

18. Return to Duty and Follow-up Testing • Occur only when there has been a DOT violation (positive, refusal to test, etc.) • RTD test conducted after SAP has provided follow-up evaluation report stating that employee has complied with treatment requirements • Follow-up testing determined by SAP • Begins when employee returns to safety-sensitive duties • Minimum of 6 FU tests in first 12 months after return to duty • FU testing may extend for up to 60 months as ordered by SAP • Number of tests and duration of testing determined by SAP • Employer sets schedule for “no notice” FU tests • Employee is also in CDL random pool

19. Urine Specimen Collection • All DOT tests require: • Use of Federal custody and control form (CCF) • Split specimen collection • Shy bladder procedure for inability to provide specimen • Direct observation collections required in specific circumstances • Specimen temperature out-of range • Specimen suspected of adulteration • Previous test canceled because specimen invalid • Previous test canceled because split not available • Previous test “very” dilute—creatinine 2-5

20. Urine Specimen Collection II • Collectors must complete training and proficiency demonstration • Supervisors of employees should not act as collectors • Most collections conducted at laboratory patient service centers (PSC) or medical clinics (3rd Party sites) • Specimens packaged in specimen bottles, sealed, and placed in plastic bag with CCF • Collector must distribute CCF copies to MRO, employer, and donor

21. Laboratory Analysis • DOT testing must be conducted at a DHHS/SAMHSA certified laboratory • Screening test conducted using immunoassay • Confirmation required for all positive screens using GC/MS • Cut-off levels establish positive result (ng/mL) • Laboratories authorized to conduct specimen validity testing • Laboratories must review CCF for flaws prior to testing specimen

22. Specimen Validity Testing • Creatinine & Specific Gravity • Dilute--creatinine <20; SG <1.0030 • “Ultra-dilute”—2-5 creatinine • Substituted—creatinine <2; SG <1.0010 or >1.0200 • Adulterated • Ph: Acid or base added (<3 or >11) • Nitrites >500 mcg • Specific substance added (soap. bleach, etc) • Invalid • Interfering substance but cannot identify it • Medication interference

23. Drugs Detected • THC • Metabolite of marijuana and cannabis products • Cocaine • Benzaegoline is metabolite of cocaine, including crack • Amphetamines • Amphetamine and methamphetamine (MDMA—Ecstasy) • Opiates • Morphine, codeine, and heroin (6AM) • PCP • Phencyclidine (Angel Dust)

24. Urine Testing Facts • Positive does not establish impairment or intoxication • All drugs except THC are only detected in urine 2-3 days after use • THC can be detected in urine up to 20 days after use for chronic, regular user • Over half of all positives are for THC • Cut-off levels rule out passive inhalation or “incidental exposure” causes • Laboratories must report results to MRO, not employer or TPA

25. Medical Review Officer • MROs must be physicians who have special MRO certification • All results must be verified by MRO prior to release to employer or TPA • Must have CCF copy from collection site prior to reporting results • Non-negative results must have donor interview with MRO prior to verification • MRO cannot give employer (or TPA) any information prior to final verification of result

26. MRO Results • Negative—No drugs present above cut-off level • Negative Dilute—No drugs present above cut-off level and low specific gravity & creatinine • Positive—Drugs present and no medical explanation • Refusal to Test—Adulterated (contains exogenous substance or excessive level of endogenous substances) or Substituted (SG & creatinine not consistent with human urine) • Canceled Test—Invalid specimen, flawed collection/specimen, Shy bladder with medical explanation

27. MRO Safety Concern • Issued by MRO when laboratory positive drug test is due to use of a prescribed or medically administered drug and MRO believes: • Use of prescribed medication poses a significant safety risk, or • Medical condition for which medication is prescribed may pose a significant safety risk • Test result will be reported as “Negative” with MRO comment of a safety concern • Employee is informed by MRO that safety concern is being reported to employer

28. MRO Notice to Donor • MRO notifies donor that he/she can submit (within 5 days) documentation from prescribing physician that demonstrates: • Medication has been discontinued, or • changed to one that does not cause concern • If MRO receives such documentation, employer will be notified that safety concern is removed

29. Employer Actions on MRO Safety Concern • Options for resolving safety-concerns • Have prescribing physician provide statement that employee is able to perform safety-sensitive duties while taking medications • Have employee undergo “fitness for duty” evaluation by employer designated physician • Important for employer to have medication policy and procedures in place • MRO cannot make “fitness for duty” recommendation based on donor interview and urine drug test result

30. Split Specimens • MRO must offer split specimen analysis to any donor with a positive, adulterated or substituted result • Employee cannot be required to pre-pay for split analysis • Employee has 72 hrs to decide if he/she wants split analyzed • MRO processes split request in writing to laboratory • Split musty be tested at a different SAMHSA certified laboratory • Split results reported to MRO • Employee must be removed from duty based on primary specimen result; cannot delay removal pending split outcome

31. Split Specimen Outcomes • Result reconfirmed • Drugs present at limit of detection • Adulteration & substitution criteria met • Failed to Reconfirm • Drugs not detected • Adulteration or substitution criteria not met • Split specimen not available or not suitable for testing

32. Alcohol Testing • Pre-employment alcohol testing not required • 0.04 or greater BrAC is a rule violation (positive test) • 0.02—0.039 BrAC requires temporary removal from safety-sensitive duty • Screening test uses breath or saliva specimen • Confirmation test required within 30 minutes of >0.02 screening result • Confirmation must be an evidential breath test (EBT)

33. Alcohol Testing II • Tests must be conducted by trained technicians (STTs or BATs) • DOT Alcohol Test Form (ATF) must be used for all DOT tests • BAT notifies employer or TPA of result (no MRO review of alcohol test results) • EBT detects only ethanol • Waiting period (15—30 min) between screen and confirmation test eliminates “mouth alcohol” • Procedures for “shy lung” or inability to complete test

34. Third Party Administrator (TPA) • Service agent for employers in implementing testing programs • Can maintain all records for employer • Can perform all tasks except DER, medical review and laboratory functions • TPA must conform to Part 40 and DOT agency rules

35. SAP & Return To Duty • Employers must provide SAP information to all individuals who violate DOT rules, even if they terminate employment • Employees cannot return to duty unless they have: • Been evaluated by a SAP • Complied with recommended treatment/rehab • Undergone a follow-up evaluation by the SAP • Passed a return to duty test • Been prescribed a follow-up testing program (at least 6 tests in first 12 months)

36. Significant Compliance Issues • Random testing • Must do random selections at least quarterly • Must document reasons for not testing selected employees • Must complete tests within testing period • Cancelled and “late” tests do not count toward percentage • Cannot “discontinue” random testing once the required percentage is achieved • Must update random pool to include all safety-sensitive employees

37. Significant Compliance Issues • MIS reports • Must provide annual statistical data as required by DOT rule • Jan-Dec calendar year • Pre-employment tests on all s-s employees before they are hired or perform s-s duties • Prior Violations check ( 2yrs) on all new hires • Post-accident testing documentation on all qualifying accidents • Including missed and delayed alcohol and drug tests

38. Commonly Asked Questions • What does a “pending” test result mean? • What do I do about a negative-dilute? • Can I change a non-DOT test to a DOT test? • I need a DOT MIS report? • What do I do about employees who are laid off or are on WC leave and are on my random list? • One of my employees got a DUI. Do I have to remove him from duty? • Do I need to do a drug test with my driver’s physical exam?

39. Commonly Asked Questions • My random list is wrong. How do I get a new one? • What do I do about an employee who couldn’t provide a urine specimen at the collection site? • How do I get a laboratory statistical report? • My driver’s random test was reported as canceled. Do I send him in for another test? • It’s been five days and I don’t have a test result. Is it pending for the MRO review?

40. Employer Guide to DOT Testing Available at www.dot.gov/ost/dapc

41. Stop By FirstLab’s Table and Meet FirstLab’s Florida Account Manager • Lisa Busse • 1364 Welsh Road • North Wales, PA 19454 • 800-732-3784 Ext. 297 • 706-835-1835 • www.FirstLab.com • lbusse@firstlab.com