In accordance with DOT drug and alcohol regulations (rule 49 CFR Part 40, or “Part 40”), “recipients or subrecipents of Sections 5307, 5309 or 5311 federal funding must test all safety-sensitive employees regardless of the size of the system or the number of employees.” Both the DOT and FTA have developed regulations to assist you in implementing a successful drug and alcohol program.
To determine who is a safety-sensitive employee, you should consider the full list of tasks an employee performs each day and not rely solely on job titles. The following are ‘safety-sensitive’ functions, as defined by the FTA:
- Operating a revenue service vehicle, including when not in revenue service
- Operating a non revenue service vehicle that requires drivers to hold CDLs
- Controlling dispatch or movement of a revenue service vehicle. Note: whether or not dispatchers could impact public safety should be determined by each transit system based on the tasks they perform
- Maintaining revenue service vehicles or equipment used in revenue service including repairs, component overhaul, and rebuilding
- Providing security or carrying a firearm on transit vehicles, at transfer points, and in transfer facilities open to the public
To read more about this, please see the FTA Covered Employees Page
The DOT requires that safety-sensitive employees are tested for the following drugs only:
- Marijuana metabolites /THC
- Cocaine metabolites
- Amphetamines (including methamphetamine and MDMA—a.k.a. ecstasy)
- Opiates(including codeine, heroin, morphine)
- Phencyclidine (PCP)
To read more about this, please see the National RTAP Substance Abuse Awareness Training, Testing, and Compliance Technical Brief
According to the FTA, a violation of the alcohol policy is a confirmed blood alcohol level of 0.04 or greater. If an employee has a confirmed blood alcohol level between 0.02 and 0.039, he/she should be removed from duty for 8 hours unless a re-test < 0.02 blood alcohol level.
Program requirements overview
The source of this section of information is FTA’s "Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit, Revised October 2009," authored by RLS and Associates. If you would like to view the full text, please click here.
In order to be in compliance with FTA regulations, it is necessary that impacted transit systems develop the following program elements:
- Workplace policy statement – you should first designate a Drug and Alcohol Program Manager (DAPM), and it is best if the person chosen already performs administrative duties such as human resources, personnel or risk management. The DAPM will be the primary contact for any issues or questions related to drug and alcohol policies, and the DAPM is responsible for record keeping, the testing process, preparation of the annual Management Information System (MIS) report, and serving as the Designated Employee Representative (DER) and liaison with the drug and alcohol testing service agents. Once this has been established, the following steps should be taken:
o Determine the categories of employees that are subject to testing
o Write a description of what is considered prohibited behavior and conduct
o Write the testing procedures that will be used to test for prohibited drugs and alcohol. The procedures should protect both the employee and the integrity of the testing process. They should also safeguard the validity of the test results and ensure they are attributed to the correct employee
o Write a statement declaring that all safety-sensitive employees will be tested for prohibited drugs and alcohol
o Write a description of the types of behavior that constitute a refusal to test, and clarify that a refusal to test constitutes a violation of the policy
o Write a description of the consequences for violating the drug and alcohol policy. This includes the consequences for an alcohol concentration of 0.02 or greater, but less than 0.04
Each aspect of the policy statement should be clearly defined and shared with your employees and management staff.
- Training and education program – FTA regulations require specific training for safety-sensitive employees and their supervisors. While the regulations do not require refresher training for safety-sensitive employees, it is recommended that your training programs go beyond the required elements. You are also required to keep detailed records of your employee and supervisor training for 2 years. This includes copies of attendance rosters, dates and times of trainings, and certifications of training compliance.
o Safety-sensitive employee training – this includes both general education and training components.
- Each employer must display and distribute information about the effects of drugs and alcohol and a community hotline phone number for any employee that may be having difficulties with substance abuse. Information for distribution can be obtained from your Employee Assistance Program (if you currently have one), your health insurance carrier or local government mental health agencies.
- Employers must also provide each safety-sensitive employee with a written notice of the organization’s drug and alcohol policies and testing procedures.
- Lastly, employers must provide a 60-minute training for safety-sensitive employees on the effects, signs and symptoms of drug use and alcohol misuse. While it is required to provide one hour of training, it is suggested that employers take 2-3 hours to cover the necessary material. National RTAP offers a free Substance Abuse Awareness Online Course that fulfills the required 60 minutes of training, originally developed by RLS & Associates for Oregon DOT. To access the course, register on the National RTAP eLearning system. Email email@example.com with any questions.
o Supervisor training – training must be given to supervisors who are authorized to determine when it is appropriate to administer reasonable suspicion drug and/or alcohol tests. Because only one supervisor’s opinion is necessary to require a reasonable suspicion test, proper training is important. Supervisors in this position are required to complete 120 minutes of training: 60 minutes on the physical, behavioral and performance indicators of both probable drug use and probable alcohol misuse. As with employee training, it is recommended that employers exceed the required amount of training time.
- Drug and alcohol testing - the following are the six different categories of testing:
o Pre-employment (drug test only) – all applicants or employees are required to submit to a drug test and produce a verified negative result before being placed in a safety-sensitive position. This keeps those with a history of high-risk behavior (such as drug use) out of a transit system. Alcohol testing is not required at this point, however employers may choose to also perform this test.
o Reasonable suspicion – if a safety-sensitive employee has exhibited signs of drug use or alcohol misuse through appearance,behavior, speech or body odor, he/she may be subjected to both a drug and alcohol test. Any person who is requesting the reasonable suspicion test must be trained in the facts,circumstances, physical evidence, physical signs and symptoms, and behavior that are associated with use, and they must also be trained in how to approach an employee for testing. See the bullet on supervisor training in the training and education program section above.
o Post-accident – this type of testing must occur after the operation of a revenue service vehicle is associated with the loss of life. It must also be conducted during all other nonfatal accidents unless the operator’s performance can be completely discounted as a contributing factor. In order for an incident to be considered an accident under this category, any of the following must take place: an individual dies; an injured individual receives medical treatment away from the scene of the accident; a public transit bus, electric bus, van or automobile incurs disabling damage and must be towed away from the scene by another vehicle; a public transit rail car,trolley car, trolley bus or vessel is removed from service. Tests should be administered as soon after the accident as possible and no later than 8 hours after for alcohol or 32 hours after for drugs.
o Random – this is required of all safety-sensitive employees, and it acts as a strong deterrent against employees beginning or continuing prohibited drug use and alcohol misuse. The system by which employees are randomly selected should be scientific and there should be no inherent or perceived bias in the process. Recommended methods include the use of a random-number table or a computer-based random-number generator (each number matched to an employee’s identification number). Methods to avoid include picking numbers from a hat or other manual techniques. In general, the number of random drug tests conducted per year should equal at least 25%, and for alcohol at least 10%, of the total number of employees in the test pool. Due to the sensitive nature of random testing, it is important to assure the selected employee that she/he was not singled out for a particular reason. Many very small rural systems enroll in a drug testing consortium. This enlarges the pool and reduces the likelihood that the same employee will be picked over and over again.
o Return-to-duty – before an employee can return to work after a positive test or refusal to test, he/she must be evaluated by a Substance Abuse Professional (SAP) and pass a return-to-duty test. Before the test is administered, the SAP must determine that the employee has followed all recommended rehabilitation steps. While the employee may have only tested positive for drugs or alcohol, they must pass both a drug and alcohol test before returning to work.
o Follow-up – once an employee is permitted to return to duty, he/she will be subject to unannounced follow-up testing for at least 12 months (but no more than 60 months). A minimum of six tests should be conducted within the first 12-month period. Employees who are subject to follow-up testing should also continue to be in the random testing pool, and also submit to tests as called upon in that process.
For details about testing procedures, please see the National RTAP Substance Abuse Awareness Training, Testing, and Compliance Technical Brief.
- Rehabilitation and treatment program – an employer must advise employees who are found abusing substances about resources available to evaluate and resolve problems associated with drug use or alcohol misuse, even when a company policy allows for the termination of employment. If an employee is permitted to return to work, it is the substance abuse professional’s (SAP) responsibility to ensure that he/she is not a threat to public safety. Because of this there are many regulations as to the SAP requirements, qualifications, roles, responsibilities and procedures. Employers can also implement Employee Assistance Programs (EAP) as a way to address substance abuse issues before they become a problem in the workplace. While the FTA does not require employers to provide or pay for rehabilitation or treatment programs, they are often an integral part of substance abuse programs.
- Administrative duties - both DOT and FTA have requirements for employers and service agents on what documentation should be kept and for how long. The following records must be kept:
o Test results
o Testing processes
o Return-to-duty process
o Employee training
o Annual reports to FTA regarding testing program activities and results (to learn more about reporting and to download the necessary forms, please see the FTA website)
The retention period begins on the record creation date, and there are requirements specific to each type of document. For a detailed chart on retention periods, please see page 10-2 of the DOT/FTA Implementation Guidelines. Rural transit systems do not certify directly through FTA, but rather through their state. Your state should ask for certification of compliance either through an annual grant submission or though a separate letter.
If your transit agency fails to implement or properly administer the required program components, you can lose your FTA funding.