DAPM Scenarios

1. DAPM Scenarios {Craig McNulty} 2014 FTA Drug & Alcohol National Conference Little Rock, AR

2. How to respond to all of those tough DAPMquestions

3. Development: One of your employees moves from non-safety-sensitive to safety-sensitive duties Always require a verified negative pre-employment test result prior to the performance of safety-sensitive duties

4. Problem:You get a call from the BAT and your employee’s test result is greater than or equal to 0.02 but less than 0.04 Immediately remove the employee from safety-sensitive duty, until: -the employee's alcohol concentration measures less than 0.02 OR -the start of the employee's next regularly scheduled duty period* *not less than 8 eight hours following the test

5. Problem:You get a call from the BAT and your employee’s test result is greater than or equal to 0.04 • Immediately remove the employee from safety-sensitive duty • Refer them to a SAP • Follow the protocol outlined in your company’s policy (e.g. second chance, zero tolerance)

6. Problem:You get a call from the BAT and your employee’s test result is greater than or equal to 0.04 Have an ‘after hours’ contingency plan set up so the you can immediately remove the employee from safety-sensitive duty Refer them to a SAP Follow the protocol outlined in your company’s policy (e.g. second chance, zero tolerance) AND it is 2 AM…

7. Problem:You get a call from your TPA, and they tell you that your employee’s test result is greater than 0.04 Federal regulations prohibit the transmission of alcohol confirmation tests through a C/TPA. If this happens, have a conversation with your collection site, and review your ATFs to make sure that the proper contact information is listed. NOTE: a C/TPA's name, address, and telephone number may be included on the form to assist with negative results.

8. Problem:You get a call from the MRO and your employee’s test result is POSITIVE • Immediately remove the employee from safety-sensitive duty • Refer them to a SAP • Follow the protocol outlined in your company’s policy (e.g. second chance, zero tolerance)

9. Problem:You get a call from the MRO and your employee’s test result is ADULTERATED • Consider this a REFUSAL and immediately remove the employee from safety-sensitive duty • Refer them to a SAP • Follow the protocol outlined in your company’s policy (e.g. second chance, zero tolerance)

10. Problem:Your operator was involved in a serious accident and you find out the MRO is reviewing the laboratory results. Do you allow the operator to continue to drive? Yes, unless you always take off duty for an accident.

11. Problem:You get a report from the MRO indicating your employee’s test result is CANCELLED due to an INVALID SPECIMEN • The MRO will indicate to you whether or not there was a legit reason (no recollection needed) • If there was not, perform an immediate collection conducted under direct observation • You must tell the collector that it is for same test type and same DOT agency as the invalid

12. Problem:You get a report back from the the MRO regarding an employee who was evaluated for a shy bladder There are two options: (1): When a medical condition has precluded the employee from providing a sufficient amount of urine, the test is cancelledand you take no further action. (2): If there is no medical condition that precluded the employee from providing a sufficient specimen, the test is ruled a “refusal”. Remove the employee from s.s. duty and proceed accordingly to company policy

13. NOTE: If a negative test result is required (i.e., pre-employment, return-to-duty, or follow-up tests),and the invalid/cancelled test result does not show evidence of adulteration/substitution, the employee must still be sent for an unobserved collection immediately

14. Problem:You get a call from the Screening Test Technician (STT) that your employee can not provide enough saliva • You must immediately arrange to administer an alcohol test to the employee using an EBT or other breath testing device • NOTE (for rural systems): There may exist unusual circumstances in which an EBT is not available within the appropriate time frame. In such a case, the employer must have documentation showing a “good faith” effort to get an EBT

15. Problem:The MRO informs you that a positive test was dilute. Consider this a POSITIVE TEST and immediately remove the employee from safety-sensitive duty, refer them to a SAP and follow the protocol outlined in your company’s policy (e.g. second chance, zero tolerance)

16. Problem:The MRO is unable to reconfirm a positive test result because the drug metabolites were not found in the split specimen. The MRO will report, and you shall consider this test, a cancelled test

17. Problem:The MRO informs you that a negative test was dilute and a recollection is required under direct observation • Immediately send the employee for a recollection • You must tell the collector that it is for same test type and same DOT agency

18. Problem:You get a call from the collector because your employee is not cooperating at the collection site. • The collector shall consider this a REFUSAL* • You will immediately remove the employee from safety-sensitive duty, refer them to a SAP and follow the protocol outlined in your company’s policy (e.g. second chance, zero tolerance) * Make sure that the collector made a note in the remarks section and signed/dated the CCF

19. Note: The employee CAN NOT return to safety-sensitive duties UNTIL he/she has successfully completed the return-to-duty process (Part 40 Subpart O)

20. Development:You significantly change your policy and have appropriate approval from your board, CEO, etc. Provide a copy of the revised policy or revisions to all covered employees

21. Problem:There is a significant delay in receiving a pre-employment test result back, and you need him/her to start duties immediately. BE PERSISTANT. Find out where the delay is originating from. • Call the MRO • Is the TPA holding the results? • Does the collection site have the correct contact information for your company? • Is the MRO copy being sent promptly? Is it going through? • Are the specimens being sent out promptly? • Are payment delays slowing down the process? NOTE: DO NOT let the prospective employee begin safety-sensitive duties without that negative result!

22. NOTE: You can have different policies for different types of tests (e.g., conduct retests in pre-employment situations, BUTnot in random test situations) BUT this must be made clear to your employees beforehand (e.g. written in your company policy)

23. Problem: You learn of facts after an accident that indicate an FTA threshold was NOT met; but, you have already conducted a post-accident test. • It’s OK…treat it as any other post-accident test • You are not obligated to weigh eventual facts and circumstances that could later arise • Your obligation at the time of the accident is to make a decision (Test/no Test) • The test is still DOT…and consequences of the test remain • NOTE: The FTA will support your decision either way, as long as the official clearly documents their decisions, and those decisions are based on the best information available at the time the decision was made

24. Problem: You learn of facts after an accident that indicate an FTA threshold was met; but, you have released the employee from the scene and he/she has gone home. It is still under 32 hours since accident) • Once you dismiss them from the scene, that is your FINAL decision • DO NOT call the employee back to work to test them • If you find yourself saying “had I known that, I would have certainly tested the driver,” you have done nothing wrong • REMEMBER: You are not obligated or expected to weigh all eventual facts and circumstances that later arise

25. Problem:Following an accident, you are unable to conduct an alcohol test (8 hours have elapsed), but the police are able to (they arrested your employee). IF the police release the records to you, these results do meet the post-accident testing requirements of 655

26. Problem:You find out that a collector at your collection site never completed their training and therefor they are not technically qualified (e.g. did not complete 5 mock collections), but he/she has been the collector for 60 of your tests, including two positives.(sigh)

27. Solution: • Federal regulations state that these tests won’t be cancelled (assuming the collection is otherwise proper). • Correspond with your collection site, and make sure the collector is (re)trained because the use of an unqualified collector may result in DOT enforcement action. • It can also expose your company to become the subject of a lawsuit.

28. While reviewing CCFs/ATFs you find: OOPS: A non-federal form for a federally mandated test FIX: Assure that the specimen was sent to HHS certified lab - Check to see if the CCF is correctly marked (e.g. split specimen, DOT 5 panel) Then, if this is true, have the collection site: • Provide a signed statement stating that the incorrect form contains all the information needed for a valid DOT drug test • List steps taken to prevent future use on non-DOT forms

29. While reviewing CCFs/ATFs you find: OOPS: A federal form was used for a non-federal test FIX: Have the collection site: • Provide a signed statement explaining the misuse of the DOT-form • List steps taken to prevent future misuse of DOT forms NOTE: Habitual misuse of DOT forms may result in DOT enforcement action

30. While reviewing CCFs/ATFs you find: OOPS: A return-to-duty or follow-up test not marked as being done under direct observation FIX:Contact the collection site to find out if it was done under direct observation. - If it was, the collector can correct the mistake through the use of a Correction Affidavit that explains the error - If it was not, send the employee back as soon as possible for a test under directly observed conditions

31. Development: Your company starts to use a different collection site • Provide the collection site the name and telephone number of the DER (and/or C/TPA) to contact about any problems that may arise during testing • Review collector certificates; go down to the site and talk to them about their trainingand procedures • See if testing appointments are a possibility • Explain that your thoroughness is federally mandated/enforced and not only your personal preference

32. Problem:Your collection site calls you and informs you that your employee has no valid ID. • Positive identification by an employer representative (not a co-worker or another employee being tested) is also acceptable TIP:if you are close to the collection site, you can send a supervisor down to ID the employee • The DER can verify the identity of the employeeover the phone

33. Problem:Your collection site calls you and informs you that your applicant has not shown up for their pre-employment test • This NOT a refusal • Wait for the employee to call you • Make your own judgement call on whether to pursue the applicant or not

34. Problem:Youremployee complains that there were errors in the collection process made by the collector • Review the CCF for any errors, and if there are, correct them immediately • Visit the collection site and explain, in detail, the errors to the site manager • Consider the use of a notification form if errors were paperwork centered

35. Problem:TheDAPM is safety-sensitive and is in the random pool; his/her name is selected for a random test The DAPM can either: • Immediately proceed to the collection site upon review of their name • Have their C/TPA forward that information to a supervisor who will notify the DAPM and require that the DAPM proceed immediately to the collection site

36. Problem: Your have 48 s.s. employees, and select one name a month for random testing. It is the end of July and almost time to pull another list, and the employee selected in July quit July 1. You do not select alternates, what is one to do? • Pull a few extra names for August • It is NOT against the regulations to test higher than 25% • Not only will this solve your problem, but it will keep your employees on their toes, too

37. Development:You expand service hours and your collection site does not cover them all. Now you have decided to use the local hospital. • Review their qualifications • Personally visit them and inspect the site (i.e. is there visual privacy for an alcohol test, is the enclosure secure) NOTE: If the hospital testing falls through: approach your favorite collector at your current collection site; try to work out a contingency based arrangement to come on site to conduct after-hours testing (this works better if you offer incentives)

38. Problem: An employee selected for a random test says they can’t go for the test because they need to pick up their child at daycare. • You may allow employees who provide advance, verifiable notice of scheduled medical or child-care commitments, to be tested no later than three hours before the end of their shift (Alcohol tests are to be scheduled no later than a half hour) • The employers are not required to make these end of shift provisions, but these are the timeframes that an employer must follow should it choose to incorporate them

39. Problem: You receive a SAP schedule for follow-up testing (9 tests over a year, 6 in the first 6 months, and 3 over the remaining 6). But, your employee will be out for the first 7 months due to a medical situation. What do you do? • Follow-up testing may only be performed while the employee is employed in a position that requires, or may require, performing safety-sensitive duties. • Any periods out of service pause the follow-up testing schedule. • The schedule resumes when the employee returns to duty.

40. Problem:Your employer has FTA and FMCSA covered employees, how do you prepare your MIS reports? • If your employees perform duties regulated by multiple DOT agencies, then: • Employees are reported under DOT agency for which they are randomly tested or • Employees are reported under DOT agency for which majority of safety-sensitive duties are conducted • Do not double report

41. Problem: You are recording cancelled random tests as counting towards minimum random test requirements • Keep a close eye on your minimum random test records because cancelled random tests DO NOT count towards your 25% • Always review your program so you can make up for missed tests by sending 1 or 2 extra employees during your testing time frames (i.e. weekly, quarterly, daily)

42. Problem:You have already submitted your MIS, but need to make changes to it • You can always re-submit your MIS • Log back in (using the same username and password) and make the changes

43. My information: Craig McNulty 617-314-9208 ext. 6 Or 857-600-8211 cmcnulty@cahillswift.com NOTE: I have business cards so you don’t have to write this down

44. Please don’t forget to fill out your evaluations Thank you for attending!