What to Expect in a DOT Drug & Alcohol Audit

Transcription

1 What to Expect in a DOT Drug & Alcohol Audit 49 CFR Parts 40, 199, 382, & 655 Deb Bliven A WorkSAFE Service, Inc. aworksafeservice.com (503)

2 Who will conduct the Audit? Representatives from the Department of Transportation (DOT): OST Office of the Secretary (ODAPC) FAA Federal Aviation Administration FRA Federal Railroad Administration FMCSA Federal Motor Carrier Safety Administration FTA Federal Transit Administration PHMSA Pipeline & Hazardous Materials Safety Admin. NHTSA National Highway Traffic Safety Administration Who will conduct the Audit? USCG United States Coast Guard (Department of Homeland Security) State or Local Regulatory Authorities Contractors and/or their Service Agents 2

3 Who does the Auditor meet with? Auditors may meet in person with the employer s Designated Employer Representative (DER) or Drug and Alcohol Program Manager (DAPM) to look at records & conduct interviews, or Who does the Auditor meet with? Auditors may conduct a desk audit where the DER or DAPM send records by mail or to the Auditor for review. 3

4 What is a DER or DAPM? Designated Employer Representative (DER) is defined in 49 CFR Part 40.3 and is an individual identified by the employer as able to receive communications and test results from service agents, who is authorized to take immediate actions to remove employees from safetysensitive duties and to make required decisions in the testing and evaluation process. The individual must be an employee of the company. Service agents can not serve as DERs. Drug & Alcohol Program Manager (DAPM) a term used in FTA programs NOT defined in the regulations. (49 CFR Parts 40 or 655) DER of DAPM Responsibilities Receive test results; Remove employees from safety-sensitive positions immediately upon receipt of certain test results; Refer employees to the Substance Abuse Professional (SAP); Facilitate Return to Duty Process and Follow- Up Testing Program; 4

5 DER of DAPM Responsibilities Coordinate physician referral and reports for Shy Bladder and Shy Lung situations; Report tests results to agency and/or state and local authorities; Oversight of Service Agents used by employer; Urine Drug Screen Collectors; Breath Alcohol Technicians; Medical Review Officer; Substance Abuse Professionals; Consortium/Third Party Administrator Access to your facilities; All written, printed, computer-based drug & alcohol records/reports, files, materials, data, documents/documentation, agreements, contracts, policies; Records must be easily accessible, legible, & in an organized manner. 5

6 Records All records must be maintained in a secure location with limited controlled access. 5 year records Alcohol tests 0.02 or greater, Verified positive controlled substances test results, Documentation of refusals to test Driver SAP referrals and SAP reports, Follow-up tests and Follow-Up test plan, Copy of each annual MIS report 3 year records Previous employer records (40.25) PHMSA supervisor & employee training records PHMSA decision to not conduct post accident testing documents 6

7 2 year records Records related to the alcohol and controlled substances collection process Collection log books (if used, not required), Documents relating to the random selection process, Documentation of STT or BAT training, Inspection, maintenance, & calibration records for EBT Documents generated in connection with decisions to conduct reasonable suspicion testing, Documents generated in connection with post-accident testing, (except PHMSA) Documents verifying medical explanation of shy bladder and shy lung situations, 2 year records (cont.) FTA records related to supervisor and employee training. 1 year records Records of negative and canceled controlled substances and alcohol test with an alcohol concentration <

8 Indefinite period, while the individual performs the functions which require the training and for two years after ceasing to perform those functions: FMCSA ( (b)(4)) Records related to the education and training of breath alcohol technicians, Screening test technicians, Supervisors, Policy Does it meet DOT modality s required content? FMCSA FTA 49 CFR (b) 49 CFR 655 Subpart B» Board Approval PHMSA 49 CFR , 202 Has it been distributed to covered employees? FMCSA Requires CDL sign for Receipt of policy 8

9 Training Employee Training FMCSA no formal employee training required, but educational materials to be provided with written policy; FTA 1 hour drug awareness training Training documentation to be maintained for 2 years from the date of training; PHMSA no formal employee training required, but educational materials to be provided with written policy. Pre-Employment Drug testing prior to performing safety sensitive duties FMCSA: Either conduct pre-employment drug test with negative result, or document pre-employment exception ( (b)) FTA & PHMSA: Testing required, no exception is allowed 9

10 Pre-Employment Is alcohol testing conducted? NOT MANDATED If yes, Conducted under Employer own authority, written in policy, Test all DOT safety sensitive applicants/transferring employees, Use alcohol testing procedures of 49 CFR Part 40 DOT alcohol testing form Prior to performing safety sensitive duties. Inquiries to Previous Employers Responses to Inquiries made to all DOT covered employers the employee worked for in the past 2 years, or Documentation of good faith effort to obtain information Pre-Employment Statement If response(s) indicate positive drug, alcohol test > 0.04, or refusal to test and applicant was hired. Verification of compliance with Return-to-Duty Process (49 CFR Part 40, Subpart O) prior to performing safety sensitive duties. 10

11 Random Testing When was employee placed in random pool? FMCSA Must place in random pool prior to performing safety sensitive duties no later than 30 days from preemployment drug test or will need another preemployment test, or If removed from random pool for more than 30 days, must pre-employment test again with negative results then add back into pool. FTA Prior to performing safety sensitive duties no later than 90 days from pre-employment drug test or will need another pre-employment test, or If removed from random pool for more than 90 days, must pre-employment test again with negative results and add back into pool. PHMSA Must place employee into random pool after receiving negative pre-employment result, or If removed from pool, must retest prior to reentering into random pool. 11

12 Are random selections reasonably spread throughout the year? All modalities consider quarterly the minimum number of selections per year. Are random selections made using a valid scientific method for selection? Random numbers table Computer-based random number generator Are employees tested during the selection period only and not tested after next selection has been made? If not tested during selection period, why not??? Terminated, Medical leave, Vacation. 12

13 Are random alcohol tests conducted just before, during, or immediately after performing safety sensitive duties? Are random drug tests conducted anytime during work day, even if employee is on light duty? Have annualized random testing percentages for drug and alcohol testing been met? Is FTA employer testing all hours and days of the week the transit agency operates? No discernable pattern for testing Testing only during collection sites normal hours of operations Beginning of shift only Testing only on certain days of the week Multiple tests conducted in one day 13

14 Post Accident Testing Did testing meet DOT modality s post accident criteria? If so, when was testing conducted? Alcohol Testing conducted with 8 hours of accident If not conducted with 2 hours of accident is there documentation for delay in testing Drug Testing conducted within 32 hours of the accident If testing was not conducted during time frames, documentation as to why not. PHMSA decision to not conduct testing documents kept 3 years Copies of internal investigation reports and/or state required accident reports. Reasonable Suspicion Was testing based on trained supervisor(s) direct observation of the employee s behavior, speech, appearance, and/or body odor? Specific Contemporaneous Articulable 14

15 Are DOT alcohol testing conducted when observations were made just before, during, or immediately after the employee s performing safety sensitive duties? Are DOT drug tests conducted anytime during work day, even if employee is on light duty? Alcohol testing conducted within 8 hours of the observation, cease testing after 8 hours. If not conducted within 2 hours: Document and continue testing until 8 hours. No testing during 8 hours FMCSA remove driver from safety sensitive duties for a minimum of 24 hours. PHMSA remove employee from safety sensitive duties for minimum of 8 hours. 15

16 How many trained supervisors are required? FMCSA requires 1 trained supervisor to initiate testing Supervisor shall prepare written report within 24 hours of the observations or before results are known. FTA requires 1 trained supervisor to initiate testing PHMSA requires: 1 trained supervisor to initiate testing if employer employs < 50 PHMSA covered employees 2 supervisors (1 trained & concurrence of 2 nd supervisor) to initiate testing if employer employees > 50 PHMSA covered employees Training Supervisor Training Records FMCSA supervisor records maintained indefinitely while the supervisor still supervises and for 2 years after supervisor ceases to perform supervisory duties; FTA training records maintained for 2 years from the date of training; PHMSA training records maintained for 3 years from the date of training. 16

17 What happens after a positive drug test, an alcohol test > 0.04, any refusals to test? Employee immediately removed from safety sensitive duties Referred to SAP for an evaluation Complied with treatment requirements Negative return to duty test(s) Follow-up testing Have return-to-duty and follow-up drug tests been conducted as same gender observed collections? If applicant/employee terminated after a positive or refusal to test was he/she given SAP referrals? Service Agent Oversight Are you using qualified services agents? Have you verified their credentials & qualifications? DOT trained Urine Drug Screen Collectors DOT trained Screening or Breath Alcohol Technicians SAMHSA Certified Laboratories MRO or SAP Do you use a code or password with service agents? 17

18 Do you review chain of custody forms and breath alcohol test forms for accuracy? Do you receive forms promptly? 24 hours or next business day? If errors are discovered are they corrected? Affidavits may be required to fix errors. Have you audited your collection site? In person visit Secret shopped 18

19 Subcontractor Oversight (FTA & PHMSA) Do you use contractors or subcontractors? Do they have FTA or PHMSA compliant programs? Have you audited their programs? 19

20 What happens after the Audit? On-site review Auditors will generally: Present and discuss audit findings, Provide written report, Request employer submit Corrective Action Plan Desk review Auditors will generally: Provide written report of findings, Request employer submit Corrective Action Plan Penalties FMCSA--Any employer or driver who violates the requirements of 49 CFR Parts 40 and 382 are subject to the civil and/or criminal provisions of 49 U.S.C. 521(b), $1000/violation/day not to exceed $10,000. ( ) FTA--Comply or lose funding under 49 U.S.C. 5307, 5309, or (655.82) 20

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