Implementation Guidelines - Federal Transit Administration - U.S. ...

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10. Jackson <strong>Federal</strong> Building Suite 3142 915 Second Avenue Seattle, WA 98174-1002 Telephone: (206) 220-7954 Fax: (206) 220-7959 Area served: Washington, Oregon, Idaho, and Alaska Chapter 2. Regulatory Overview 2-23 August 2002
1. Liability of Service Agents Yasuko Ishikawa v. Lab One Relevant Court Rulings In a highly publicized court case (Yasuko Ishikawa v. Lab One), a jury awarded a Delta Air Lines flight attendant $400,000 after a drug-testing laboratory incorrectly reported that she had substituted a specimen. Under DOT regulations, a substituted specimen is considered a test refusal. Consistent with airline policy, the flight attendant was fired even though she insisted she never took drugs and did not alter her urine specimen. Subsequent investigation found that the laboratory had not followed government standards or their own internal testing protocols for conducting validity tests and had incorrectly reported the result as substituted when in fact it was not. Validity tests are used to determine if the specimen provided consists of normal human urine or whether the specimen was switched, adulterated, or altered in some fashion. The tests measure the pH creatinine concentration and specific gravity of the specimen. Validity testing was not a required part of the DOT testing procedure at the time of the test and therefore, the error was not a violation that resulted in the loss of the laboratory’s Department of Health and Human Services (DHHS) certification. However, the flight attendant sued the laboratory and Delta. The case against Delta was dropped, but the case against the laboratory was heard in a Portland, Oregon court. The jury found that the laboratory was negligent and awarded the flight attendant financially. Even though the number of cases that this laboratory procedural error may have affected is believed to be low, the exact number of individuals that may have fallen victim to this faulty testing is unknown. The DOT believes this case is important because it holds service agents accountable and lets them know there is the potential for a significant financial cost associated with mistakes that affect the livelihoods of DOT-covered workers. Given this verdict, the pool of potential plaintiffs could increase significantly. This case was also a primary impetus for the inclusion of validity testing in the revised Part 40 regulations. As soon as the DHHS publishes its mandatory guidelines, validity testing that meets these federal guidelines will be a required component of DOT testing. Any laboratory that makes a mistake of this magnitude in the future will also be subject to a Public Interest Exclusion (PIE)(Part 40, Subpart R). The DHHS inspected all certified laboratories and took corrective action as necessary to remedy procedural errors. All certified laboratories are currently believed to be in compliance. 2. Medicinal Use of Marijuana United States v. Oakland Cannabis Buyers’ Cooperative, et al Chapter 2. Regulatory Overview 2-25 August 2002
Page 1 and 2: October 2009 Implementation Guideli
Page 3 and 4: Notice This document is disseminate
Page 5 and 6: METRIC/ENGLISH CONVERSION FACTORS E
Page 7 and 8: Table of Contents Chapter 1. INTROD
Page 9 and 10: Table of Contents (continued) Secti
Page 11 and 12: Chapter 1. INTRODUCTION Section 1.
Page 13 and 14: Transit employers may go beyond the
Page 15 and 16: Recommendation: Know the Regulation
Page 17 and 18: Sample Documentation Chapter 1. Int
Page 19 and 20: DHHS-Certified Laboratories, Center
Page 21 and 22: FTA Drug and Alcohol Management Inf
Page 23 and 24: Research And Special Programs Admin
Page 25 and 26: employment in safety-sensitive posi
Page 27 and 28: What happens in these cases? The pu
Page 29 and 30: Section 3. SAFETY-SENSITIVE • Ope
Page 31 and 32: performing the volunteer service ar
Page 33 and 34: Safety-sensitive Examples of Nation
Page 35 and 36: • A description of the consequenc
Page 37 and 38: projects, the employer should notif
Page 39 and 40: Sample Documentation Chapter 2. Reg
Page 41 and 42: Certification of Compliance for FTA
Page 43: 4. Atlanta Federal Center Suite 17T
Page 47 and 48: plaintiffs agreed that their positi
Page 49 and 50: FTA and FMCSA Regulatory Comparison
Page 51 and 52: FTA and FMCSA Regulatory Comparison
Page 53 and 54: process ensures that all critical c
Page 55 and 56: Chapter 3. Program Formulation 3-4
Page 57 and 58: Chapter 4. POLICY DEVELOPMENT AND C
Page 59 and 60: concentration of 0.04 or greater th
Page 61 and 62: has a confirmed alcohol concentrati
Page 63 and 64: MRO before the employer is notified
Page 65 and 66: policy with the requirement to form
Page 67 and 68: Do not assume that your contractors
Page 69 and 70: PRE-EMPLOYMENT DRUG TESTING NOTIFIC
Page 71 and 72: Sample Program Notification Letter
Page 73 and 74: authorized by the employer to make
Page 75 and 76: The 60 minutes of awareness trainin
Page 77 and 78: medications which could result in p
Page 79 and 80: employees who have problems with pr
Page 81 and 82: particular alcohol testing device t
Page 83 and 84: emain current with the regulations
Page 85 and 86: − Changes in Rules, Guidance and
Page 87 and 88: Exhibit 5-1 Summary of Education an
Page 89 and 90: Exhibit 5-3 Typical Agenda for Supe
Page 91 and 92: Exhibit 5-4 REASONABLE SUSPICION TR
Page 93 and 94: Chapter 6. TYPES OF TESTING Six typ
Page 95 and 96:
Previous DOT Employer Record Check
Page 97 and 98:
the “insufficient volume” proce
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for employees what is meant by on-d
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Nonfatal accidents involving a bus,
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Testing for drugs and alcohol follo
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iases in the process. To be conside
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1. Determine how frequently random
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In many small transit systems, ever
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Before making the return-to-duty re
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up testing program. The SAP must do
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Employee Discharged BAC >= 0.04 Con
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Employee Discharged Split Specimen
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Sample Documentation Chapter 6. Typ
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1) Accident Report Number: 2) Locat
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Chapter 7. DRUG TESTING PROCEDURES
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Recommendation Multiple Collection
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spouse, relative) or a close person
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The DOT requires the new version of
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9. The collector must direct the em
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evening contact telephone numbers i
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temperature range (90.0 to 100.0 F)
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publishes its final rule establishi
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for the preceding 6 months ending o
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Chapter 7. Drug Testing Procedures
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• The MRO will verify the test re
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The MRO may change a verified test
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direct the DER to have the employee
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employee for a retest under direct
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Sample Documentation Chapter 7. Dru
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Collection Site Checklist (cont.) (
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12. You may now wash your hands and
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Privacy Act Statement: (For Federal
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than an EBT, that is approved by th
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Breath Alcohol Technician (§40.213
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availability and the need for backu
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At the conclusion of the screen tes
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sufficient amount of breath. A medi
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In addition to stipulating the cons
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Sample Documentation Chapter 8. Alc
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[Federal Register: May 4, 2001 (Vol
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The Conforming Products List is the
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Highway Safety Programs; Model Spec
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45420 Federal Register / Vol. 65, N
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Page 188:
U.S. Department of Transportation (
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Section 1. SAP QUALIFICATIONS A sub
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Education/Treatment Program Referra
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Employers are not required to follo
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SAP, many employers have looked to
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10 weeks, with most sessions schedu
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_____________________________ _____
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FOLLOW-UP TESTING PROCESS SAP Input
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Alcohol Test Results
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when the applicant was assigned saf
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may arrange to have the consortium
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• Employers and service agents sh
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The list of randomly selected trans
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A. At a Nonprofit Agency or Indepen
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Reporting Period: Laboratory Name a
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Record Retention Checklists (page 2
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Retains CCF1 Split Lab - CCF1 Labor
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CCF1 Split Lab Retains - CCF1 Labor
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U.S. DEPARTMENT OF TRANSPORTATION D
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Chapter 11. CONSORTIA AND THIRD PAR
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Greater Expertise. The FTA and DOT
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Section 2. CONSIDERATIONS IN ESTABL
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esults (≥0.02) between the BAT an
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consideration. Thus, the more diver
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Section 5. IS A CONSORTIUM RIGHT FO
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• Procurement of testing services
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• Consider which consortium model
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Exhibit 11-1 Role of State DOTs in
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Exhibit 11-3 CONSORTIA RESPONSIBILI
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Chapter 12. PROGRAM MONITORING As a
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• Conduct periodic review of serv
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compliance. You are encouraged to c
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Chapter 13. THE DRUG-FREE WORKPLACE
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Violations of the act may result in
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Exhibit 13-1 DRUG-FREE WORKPLACE AC
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Chapter 14. SUBSTANCE ABUSE MANAGEM
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Notification of audit Requested mat
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them to move throughout the facilit
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above materials. ⎯⎯Procedures t
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DAY 3 Time Activity Team Address of
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Date of Collection Jan-01 Nov-00 Se
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Time of the Test Time of the Test 8
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Each auditor will discuss the porti
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Sample Re-audit Agenda DAY 1 Time A
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Index of Appendices Appendix A. Acr
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AA Alcoholics Anonymous Appendix A.
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RFP Request for Proposal RIA Radio
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Newsletters Appendix B. Additional
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U.S. Department of Labor. What Work
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Other Government Web sites Drug and
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Appendix C Americans with Disabilit
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sensitive duties for the illegal us
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If the individual is qualified and
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allegation of discrimination under
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Appendix D. Certified Laboratories
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DrugProof, Divison of Dynacare 543
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One Source Toxicology Laboratory, I
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The following laboratories are volu
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Federal Register / Vol. 65, No. 141
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Page 312 and 313:
Page 314 and 315:
Appendix F. Fact Sheets Drug Detect
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Social Issues • Two-thirds of all
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• The euphoric stimulation increa
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• Paranoia • Profuse sweating a
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connection between marijuana smokin
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Opiates (Narcotics) Fact Sheet Opia
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Phencyclidine (PCP) Fact Sheet Phen
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Appendix G Questions and Answers
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ecipient, and someone other than th
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Q. Can transit operators receive wa
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Q. If an employee changed jobs prio
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Q. How much training are employers
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acceptable for the company-required
Page 340 and 341:
Q. In a post-accident situation req
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employees and 50 non-DOT employees,
Page 344 and 345:
Q: What actual address is required
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Q: Can a split specimen be sent to
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actual employee of the employer may
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Q: Must collectors, BATs, STTs, MRO
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an observer, or a monitor for co-wo
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Q: If a collector makes an error on
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Appendix H Terms and Definitions
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indirectly, one controls or has the
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Confirmation validity test Confirme
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These terms include any designee of
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Medical Review Officer (MRO) A pers
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Random test Reason to believe Reaso
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Safety-sensitive function Any of th
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trolley bus, or vessel. A “mass t
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49 CFR Part 40 Updated August 31, 2
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§ 40.89 What is validity testing,
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Page 4 of 100 § 40.287 What inform
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Page 6 of 100 Subpart A - Administr
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Page 8 of 100 Medical Review Office
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Page 10 of 100 § 40.17 Is an emplo
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Page 12 of 100 (b) You must request
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Page 14 of 100 (4) The collector's
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Page 16 of 100 (1) To avoid distrac
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Page 18 of 100 (f) Direct the emplo
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Page 20 of 100 (g) As the collector
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Page 22 of 100 participate in the D
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Page 24 of 100 (b) You must determi
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Page 26 of 100 (d) If you have not
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Page 28 of 100 December 31 of the p
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Page 30 of 100 (a) Review Copy 2 of
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Page 32 of 100 (1) As the DER, you
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Page 34 of 100 (i) Recent needle tr
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Page 36 of 100 (2) If you receive i
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Page 38 of 100 (iii) If a negative
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Page 40 of 100 (6) Result of the te
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Page 42 of 100 (d) When you receive
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Page 44 of 100 (1) Report that the
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Page 46 of 100 (2) There is not an
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Page 48 of 100 (c) The laboratory r
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Page 50 of 100 (6) The failure to d
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Page 52 of 100 partially meets thes
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Page 54 of 100 (c) As the user of t
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Page 56 of 100 (vi) You must then d
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Page 58 of 100 (i) You may transmit
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Page 60 of 100 (b) In the case of a
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Page 62 of 100 (iii) Key DOT drug t
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Page 64 of 100 § 40.295 May employ
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Page 66 of 100 (e) The requirements
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Page 68 of 100 accident drug test r
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Page 70 of 100 § 40.343 What tasks
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Page 72 of 100 and follow-up testin
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Page 74 of 100 (b) In exercising th
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Page 76 of 100 resubmit the matter
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Page 78 of 100 § 40.397 When does
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Appendix A to Part 40 - DOT Standar
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Appendix C to Part 40-DOT Drug Test
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Page 84 of 100 Appendix E to Part 4
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Appendix G to Part 40—Alcohol Tes
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Page 88 of 100
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Page 90 of 100
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I. Employer: Company Name: Page 92
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Page 94 of 100 The following form a
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Section III. Drug Testing Data Page
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Page 98 of 100 TIP ~ Even though so
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Page 100 of 100 Finally, additional
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49 CFR Part 655
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2 Electronic access to this rule an
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duty and follow-up testing under sp
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When the drug and alcohol rules ini
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the consequences for prohibited dru
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Labor unions: 3 Trade associations:
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FTA Response. FTA opts not to inclu
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Since each employer uses its own te
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Most of the commenters to this sect
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themselves that employees can succe
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Several commenters responding to th
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service providers and the employer.
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esponsibility of FTA transit funds
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26 Federalism assessment. However,
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Part 655 - Prevention of Alcohol Mi
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655.52 Substance abuse professional
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(b) This part must be read in conju
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(2) The volunteer performs a safety
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Refuse to submit means any circumst
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An employer must have an anti-drug
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part. (c) Specific information conc
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(5) Phencyclidine. (c) Consumption
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concentration less than 0.04. This
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§655.43 Reasonable suspicion testi
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48 the reasons the alcohol test was
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(c) Rates for drug testing. (1) Whe
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annual percentage rate under this p
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(a) Each employer shall require a c
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56 for evaluating and resolving pro
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qualifying the supervisors to make
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60 (12) Number of covered employees
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post-accident alcohol test indicati
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equired to be maintained by this pa
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(b) A certification must be authori
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Drug-Free Workplace Act
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TABLE OF CONTENTS INTRODUCTION ....
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egulations that have been made sinc
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The behaviors that are prohibited b
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⎯ An individual who refuses to su
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Have employees been notified that p
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⎯ Add a bluing agent to the toile
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Are employees who are subject to te
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LABORATORY TESTING Are all drug tes
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⎯ Direct the analysis of the spli
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Is only one test conducted at a tim
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Does the BAT notify the employer’
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Does the SAP evaluate whether a saf
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ADMINISTRATIVE REQUIREMENTS If a pr
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Are procedures in place to have emp
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hours following the accident, the e
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Are random numbers substituted only
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Are employees that are subject to f
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OTHER TRAINING Consistent with the
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♦ Documents presented by a covere
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CERTIFICATION ♦ Each year transit
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A R DMINISTRATIVE EQUIREMENTS Do th
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DRUG AND ALCOHOL POLICY REVIEW QUES
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Meeting FTA thresholds; Meeting dru
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CONSEQUENCES OF A FAILED OR REFUSED
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How much notice is given to the emp
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RECORDS MANAGEMENT QUESTIONNAIRE AP
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If the information requested is not
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Has the employer met the minimum an
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Do the records indicate that any dr
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Does the employer utilize the stand
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If tests are cancelled because of a
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If you conducted the initial test,
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SALIVA TEST TECHNICIAN QUESTIONNAIR
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MEDICAL REVIEW OFFICER (MRO) QUESTI
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What action would you take if the s
Page 661 and 662:
• • • As the SAP, can you sub
Page 663:
Do you assist your members in any w
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