# Presentation: 688328

## Please Take a Handout Located in the Back of the Room

**Please Take a Handout Located in the Back of the Room**

## Operational Issues Large Transit Agencies Face

## Presented by

- 	**Barbara Allen Conway, Manager**Drug and Alcohol Testing Program Municipal Transportation AgencySan Francisco, CA(415) 554-6860 office(415) 554-4115 fax_[Barbara.Conway@sfmta.com](mailto:Barbara.Conway@sfmta.com)_
**	****Jacquelyn M. Adams, Manager**Substance Abuse Control ProgramSanta Clara Valley Transportation AuthoritySan Jose, CA(408) 321-5822 office(408) 321-5806 fax_[Jacquelyn.Adams@vta.org](mailto:Jacquelyn.Adams@vta.org)_

## Overview

- Issues in Pre-employment Testing
- Issues in Post-Accident Testing
- Issues in Changes to Random Drug Testing Percentages

## Pre-employment Testing 

- Must test
- All applicants for safety-sensitive positions
- All transfers into safety-sensitive positions
- Notify applicant in writing of the requirement to pass a drug test (should be on job announcement)

##  Pre-employment Testing (Continued)

- Negative drug test result is required prior to the employee’s performance of safety-sensitive duties
- No waivers
- No acceptance of previous employer’s testing.
- Not more than 90 days prior to date of hire
- Must actually receive negative test report from MRO - i.e., may not assume “no news is good news.”

## Pre-employment Test Refusal

- Not a refusal if applicant
- fails to appear for test
- delays a test
- leaves the collection site prior to commencement of the test
- Refusal occurs:  once the collection has commenced, the donor must complete it - failure to do so is a test refusal

## Dilute Test Result Defined

- §40.93
- As a laboratory you must consider the primary specimen to be dilute if the creatinine concentration is less than 20mg/dL and the specific gravity is less than 1.003, unless the criteria for a substituted specimen are met.
- As a laboratory you must consider the primary specimen to be substituted if the creatinine concentration is less than or equal to 5mg/dL _and_ the specific gravity is less than or equal to 1.001 or greater than or equal to 1.020.
- §40.197
- You may, but are not required to, recollect immediately ONCE. Second result is result of record.

## Question

-    May an employer have a policy of declining to hire applicant(s) who have a negative dilute test result on a pre-employment drug test?

## Example #1

- An applicant submitted a specimen that was deemed to be a negative dilute.
- The applicant was re-tested and the result was also reported as a negative dilute.

## Discussion

- How would your agency have addressed this situation?
- Accept the result as negative and hire the applicant.
- Have a company policy that states applicants with two negative dilute results will not be hired.
- Have a company policy that states applicants with negative dilutes will not be considered for that class but may reapply within a specific period of time.

## Example #2

- 	An applicant submits to a pre-employment test and the result is negative.
- 	The Designated Employer Representative receives a letter from the Medical Review Officer stating his obligation to notify the employer.

## Medical Review Officer Letter

- 	Dear DER:
- 	This letter is referenced to the above mentioned individual who took a pre-employment test on January 1, 2007.  The applicant identified and provided documentation of a medication that yielded a medically negative test result.
- 	The Medical Review Officer’s responsibility is to offer the donor an opportunity to present an alternative medical explanation for the positive test.

## Medical Review Officer Letter (Continued)

- 	Although this has been done, as the MRO, we are authorized under federal rules to extend our role by identifying an individual that may pose a safety risk.  Therefore, it is my recommendation that this individual be evaluated in terms of the applicable regulations, which address the use of  medications on the job.

**Notes:**
Applicants that are on physician prescribed methadone or other opiate based drugs could be in this category.  

## Discussion

- How does your agency address issues of this nature?
- Would your Agency:
- Hire the applicant?
- Send the applicant for a fitness for duty test prior to hiring or post hiring?
- Not hire the applicant?
- Is this addressed in your written policy?

## Answer

- The Department’s rules do not require an employer to hire anyone. That decision is the employer’s.
- While 40.197(b) authorizes an employer to obtain one additional test following a negative dilute test result, a negative dilute test result is a valid negative test for DOT’s purposes.

## Answer (Continued)

- Because a negative dilute test result is a negative test for DOT program purposes, the employer is authorized to have the applicant begin performing safety-sensitive functions.
- If the employer declines to hire the applicant in this situation, the employer’s decision is based solely on its own policy.  The employer cannot claim that its action is required or authorized by DOT rules.

## Post-Accident Testing

- FTA testing required when:
- There is a fatality.
- A _non-fatal accident meets FTA definition of “accident_”, unless the employee can be completely discounted as a contributing factor to the accident.

## Who To Test?

- The Operator of the mass transit vehicle.  He/She must remain readily available for testing and must provide consent.
- Any other covered employee whose performance could have contributed to the accident.

## Who Decides Whether or Not to Test?

-  The employer
- Decision is based on best information available at the time of the decision.
-  The decision to test or not to test for every accident must be documented by the employer.

## Time Requirements for Testing

- ALCOHOL – as soon as possible.
- If test not performed in two hours following the accident, document reasons for delay, and continue attempt to test.
- If test not performed in 8 hours, cease all attempts and document reason for failure to test.
- DRUGS – as soon as possible, but within 32 hours of the accident.
- If not tested within 32 hours, cease all attempts.

## Is Testing Permitted Outside of FTA Criteria?

- Yes, under an employer’s own authority
- Non safety-sensitive employees
- Damage within a certain dollar amount
- More extensive drug panel
- Any company-owned vehicle
- Must use non-Federal or non-DOT forms.
- Must use a separate urine specimen.
- Do not include in annual DAMIS report.

## Are Other Test Results Acceptable?

- Yes.  If test not performed within the required time period, the employer may accept the result of a test performed by Federal, State, or local officials having independent authority for test.
- The employer may use the test result(s) only if it is able to obtain the result from the testing authority.

## Problems in Post-Accident Testing

- Policy does not clearly define circumstances when testing is required.  VTA’s policy does not authorize testing beyond federal requirements.
- Turn-over in trained Supervisors making the decision
- Decision to test made by Management after Supervisor decided not to test
- Testing time limits are not met and the documentation is inadequate

## Question

- Which of the following accidents require testing?

## Example

- Accident #1
- 	Train #8 made contact with another vehicle in the intersection of Capital Ave and Hostetter.  There were no injuries, moderate damage to other vehicle and minor damage to train #8.  Twelve passengers were transferred from train #8 to train #9.  Other vehicle was not towed from the scene.  Train #8 was not removed from operation.

## Discussion

- Should the operator be required to submit to post-accident drug and alcohol testing?
- What is the reason for your decision?

## Answer

- Accident # 1
- No.  The operator is not required to submit to post-accident testing.
- There were no fatalities.
- There was no disabling damage to the train.
- There were no injuries requiring treatment away from the scene.

## Example

- Accident # 2
-  	Bus operator was traveling southbound at a speed of 5-7 m.p.h.  Just after crossing an intersection, he saw a man on a bicycle out of his peripheral vision turn into the train’s path.  He was trying to beat the train.  He applied maximum braking, but the train hit the bicyclist, knocking him over.  He fell sideways and he had blood on his forehead.  The operator called for an ambulance, but he picked up the bicycle, gathered his things and left the scene.

## Discussion

- Should the operator be required to submit to post-accident drug and alcohol testing?
- What is the reason for your decision?

## Answer

- Accident #2
- No.  The operator is not required to submit to post-accident drug and alcohol testing.
- There were no fatalities.
- There was an injury, but the person left the scene and could not be found.
- There was no disabling damage.

## Random Drug Testing Reduction

- Effective January 1, 2007, the employer is required to test a minimum of
-  25% of safety-sensitive employees for drugs
- 10% of safety-sensitive employees for alcohol
- FTA rates are minimums; can establish higher rates in policy.

## Random Drug Testing Reduction (Continued)

- Can increase rate to account for test cancellations to ensure compliance.
- Consortium random rate can be applied to pool size of individual transit system or to total consortium regardless of the number of consortium members - must equal and can exceed FTA rates.

## Random Testing Distribution

-  Spread evenly through the year
-  Spread through all hours of service
-  Weekends, holidays, late night, early morning
-  Whenever safety-sensitive functions are performed

## Impact

- Staffing
- Fewer test days each month
- Fewer hours per day
-  Management of random testing process
- Meeting requirement for  24 hour / 7 day testing
- Testing each shift equally
- Vendor (collection) contracts
- Has the reduction in drug testing impacted the availability and performance of vendors under contract to conduct random testing?
- Have collectors raised the prices because of decreased testing volume?

## Discussion

- How does your agency address these issues?
- Has the testing rate been determined?
- How did your agency determine the testing rate?
- Have your unions made any comments on the approved testing rate?
- Has your policy been changed to reflect the new rate?