SOME OLD QUESTIONS WITH THE SAME OLD ANSWERS

Recently, a couple of old questions have come up again and may warrant a response for the benefit of those employers who have not heard them before or who have forgotten the answers.

If an employee (driver) fails to show up at a collection site, who makes the determination that this is a refusal? Believe it or not, we got several different answers from employers. In this case, the first thing to do is see what the rule text actually states. Yes, the rules do provide answers in most cases.

Part 40.61(a) directs the collector to do the following: “ When a specific time for an employee's test has been scheduled, or the collection site is at the employee's work site, and the employee does not appear at the collection site at the scheduled time, contact the DER to determine the appropriate interval within which the DER has determined the employee is authorized to arrive. If the employee's arrival is delayed beyond that time, you must notify the DER that the employee has not reported for testing…”

So what is a refusal? Per 40.191(a)(1), a refusal is when employees: Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see §40.61(a));

The confusion here lies in the interpretation of who actually makes the final decision that this is a refusal to test. It is obvious that the collector makes the call that a particular situation exists, i.e., the driver did not show up for testing or appeared several hours after the time designated by the DER. However, in most cases, it would be the DER who attempts to discover all the details of what actually happened. Was the driver notified of the requirement to go to the collection site, when was the notification issued, what extenuating circumstances occurred during this scenario, and what are company policies related to this subject.

Lets break down in more detail the process described above. The rules require the driver to proceed to the collection site immediately after notification. Part 382.305(l) states: Each employer shall require that each driver who is notified of selection for random alcohol and/or controlled substances testing proceeds to the test site immediately; provided, however, that if the driver is performing a safety-sensitive function, other than driving a commercial motor vehicle, at the time of notification, the
employer shall instead ensure that the driver ceases to perform the safety-sensitive function and proceeds to the testing site as soon as possible.

The issue here is, was the notification properly carried out and when did the driver actually leave to go to the collection site. Some employers actually tell a driver that he/she has to be at the collection site “that afternoon” or “before the day ends”. This generally gives the driver who is using drugs sufficient time to obtain substituted urine or an adulterant before coming to the collection site. It is also not the correct procedure that the employer should follow.

Presuming the notification was done correctly, the DER then has to determine why the driver did not show up or was late at the collection site. Was the driver given the correct address of the collection site? Yes, there have been situations where the DER was not aware that the company’s collection site had changed and sent the driver to the wrong place. Is this a refusal? Of course not. The driver complied with the proper instructions and it is not the driver’s fault that he/she was sent to the wrong collection site. Being late for the collection because the driver had to pick up the kids at school is not an appropriate reason for being late or not showing up at the collection site. Being in a car accident on the way to the collection site is a reasonable excuse, provided the DER can obtain documentation from a police report or other source that the driver was truly involved in an accident that prevented him/her from proceeding to the collection site.

And finally, what is the company policy related to this situation? Does it spell out specifically what a driver has to do once he/she is notified to proceed to a collection site? Does it clearly identify those situations that can be appropriate reasons for being late or not arriving at the collection site versus those that are not acceptable by the company? Remember, your company policy will be used to determine compliance during any legal or administrative proceedings.

Bottom line then, in most cases the DER will make the determination if a refusal to test exists when a driver is late or does not show up at the collection site. However, the DER has to apply this decision in a reasonable manner – it may well be challenged by an inspector during a safety audit. Also, if an employer obtains its services through a consortium/ third party administrator (C/TPA), this third party will generally try to provide guidance to the DER in these cases. The C/TPA is the one who arranges the specimen collections and knows if a test was conducted or not. They will generally contact the DER in the cases discussed above and provide guidance on how to proceed. DERs and companies should pay close attention to this, since most C/TPAs have experience in this area and their goal is to ensure that the employer operates the DOT drub and alcohol program according to the rules.

The second issue that has come up – again – is related to a driver returning to duty after a violation. If the driver has been out longer than 30 days, does the employer have to conduct a pre-employment test and a return-to-duty test?

Here is an interpretation from the Federal Motor Carrier Safety Administration on this issue (382.309): *Question 1: A driver has tested positive and completed the referral and evaluation process up to the point of being released by the SAP for a return-to-duty test. The driver no longer works for the employer where he/she tested positive. The driver applies for work with a new employer. Must the new employer conduct two separate controlled substances tests (one pre-employment and one return-to-duty), or will one test suffice for both purposes? Guidance: An individual, who has complied with the education/treatment process as required under 49 CFR Part 40, Subpart O, but has not submitted to a return-to-duty test, and is seeking employment with a new employer, a single test will suffice to meet the requirements of §382.301 and §382.309 only when the new employer would be required to conduct both tests on the same day. *Editor’s Note: This interpretation was issued after the interpretations were published in the Federal Register in April 1997.
So, yes, the employer could roll up both tests into one if both are to be conducted on the same day. This interpretation was written before the mandated direct observation testing for return-to-duty. However, Part 40 states that if a direct observation collection was to be conducted, but was not, the driver must be recalled for a direct observation collection. So, we would have to assume that this kind of test - even though it is a combined pre-employment and return-to-duty test - would be under direct observation.
Bottom line for all of the above is – document, document, and document.

Comprehensive Safety Analysis 2010 (CSA 2010)

A number of employers have raised questions and concerns related to the Federal Motor Carrier Safety Administration’s (FMCSA) Comprehensive Safety Analysis 2010 (CSA 2010) initiative and its impact on the highway industry. A lot of confusion, misinformation, and misconception abounds and is causing anxiety for many employers.

Comprehensive Safety Analysis 2010 is a new FMCSA safety program to improve large truck and bus safety and ultimately reduce crashes. It introduces a new enforcement and compliance model that allows FMCSA and its state partners to contact a larger number of carriers earlier in order to address safety problems before crashes occur.

CSA 2010 replaces SafeStat with a new Safety Measurement System (SMS) that measures the previous two years of roadside violations and crash data. With SMS, every inspection counts, not just out-of-service violations, and both driver and carrier safety performance are monitored.
CSA 2010 is currently being tested in six states. When CSA 2010 is fully implemented by the end of 2010, SMS will replace the Safety Status (SafeStat) measurement system as FMCSA’s tool to identify high-risk motor carriers requiring interventions in order to improve safety on the Nation’s roads. SMS will evaluate the safety of individual motor carriers by considering all safety-based roadside inspection violations, not just out-of service violations, as well as State-reported crashes, using 24 months of performance data. SMS will assess each carrier’s safety performance in each of the Behavior Analysis and Safety Improvement Categories (BASICs): Unsafe Driving, Fatigued Driving (Hours-of-Service), Driver Fitness, Controlled Substances/Alcohol, Vehicle Maintenance, Cargo-Related, and Crash Indicator. SMS calculates a measure for each BASIC by combining the time and severity weighted violations/crashes (more recent violations are weighted more heavily) normalized by exposure (e.g. number of power units or number of relevant inspections). Applying a similar approach to that used in SafeStat, SMS converts each carrier’s BASIC measures into percentiles based on rank relative to peers. SMS will be updated monthly.

There are six important differences between the new Safety Measurement System (SMS) and the current measurement system, SafeStat:
1. SMS is organized by seven specific behaviors (BASICs) while SafeStat is organized into four broad Safety Evaluation Areas (SEAs).
2. SMS identifies safety performance problems to determine the intervention level while SafeStat identifies carriers for a compliance review.
3. SMS emphasizes on-road performance using all safety-based inspection violations while SafeStat uses only out-of-service and selected moving violations.
4. SMS uses risk-based violation weightings while SafeStat does not.
5. SMS will eventually be used to propose adverse safety fitness determination based on a carrier’s own data while SafeStat has no impact on an entity’s safety fitness rating.
6. SMS provides a tool that allows investigators to identify drivers with safety problems during carrier investigations.

A carrier who fails an audit is notified within 45 days and given 60 days to correct the problem or lose its operating authority. Passenger carriers and hazmat haulers are given only 45 days to correct violations.

Under the new rules a carrier automatically fails if an auditor finds a single occurrence of these violations. FMCSA looked back at audits conducted in a recent five year period and estimated that 47.9% would have been failures under the new rules. Since about 40,000 audits are done each year, that means more than 19,000 Motor Carriers could now fail annually. “One would not necessarily expect such a high failure rate to persist after the rule is implemented,” FMCSA noted in a December 2008 Federal Register notice. “Upon implementation of this rule, many carriers will take the appropriate action to pass the stricter new entrant safety audit, and the actual failure rate will be significantly lower.”

Safety regulations that are being called the “15 deadly sins” that will result in failure of a motor carrier entrant audit:
1. Failing to implement an alcohol and/or controlled substances testing program.
2. Using a driver who has refused to submit to an alcohol or controlled substances test required under Part 382.
3. Using a driver known to have tested positive for a controlled substance.
4. Failing to implement a random controlled substances and/or alcohol testing program.
5. Knowingly using a driver who does not possess a valid CDL.
6. Knowingly allowing, requiring, permitting, or authorizing an employee with a commercial driver’s license which is suspended, revoked, or canceled by a state or who is disqualified to operate a commercial motor vehicle.
7. Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a commercial motor vehicle.
8. Operating a motor vehicle without having in effect the required minimum levels of financial responsibility coverage.
9. Operating a passenger carrying vehicle without having in effect the required minimum levels of financial responsibility coverage.
10. Knowingly using a disqualified driver.
11. Knowingly using a physically unqualified driver.
12. Failing to require a driver to make a record of duty status.
13. Requiring or permitting the operation of a commercial motor vehicle declared "out-of-service" before repairs are made.
14. Failing to correct out-of-service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again.
15. Using a commercial motor vehicle not periodically inspected.

There are five important differences between CSA 2010 interventions and FMCSA’s current compliance review (CR):
1. CSA 2010 provides a set of tools to address carriers' safety problems; the CR is a one-size-fits all tool.
2. CSA 2010 interventions provide the ability to focus on specific safety problems while the CR requires a broad examination of the carrier.
3. CSA 2010 interventions focus on improving behaviors that are linked to crash risk; CR is focused on broad compliance based on a set of acute/critical violations.
4. CSA 2010 focused onsite investigations and offsite investigations are less resource intensive and less time consuming for the carrier; CRs are resource intensive.
5. CSA 2010 investigations may take place at a carrier’s place of business or offsite; CRs are generally conducted onsite
Under CSA 2010, all carriers--and eventually all drivers--with sufficient safety data available will receive a safety rating that is periodically updated. CSA 2010 intends to use new data--such as information from police accident reports about driver-related factors contributing to a crash--and improve existing data sources--by, for example, using its database of licensed commercial drivers to identify all drivers with convictions for unsafe driving practices, as well as the carriers they work for--to enable a more precise assessment of safety problems.

Below are three actions that a carrier can do to prepare for CSA 2010:
Check and update your records: Ensure your Motor Carrier Census Form (MCS-150) is up-to-date and accurate. Routinely monitor and review inspection and crash data (http://ai.fmcsa.dot.gov or through FMCSA’s Portal).

Maintain copies of inspection reports and evidence related to any observed violations, identify and address trends or patterns in your company, and challenge any potentially incorrect data using DataQs(https://dataqs.fmcsa.dot.gov/login.asp). FMCSA is currently exploring the option of providing motor carriers the ability to review their own safety performance data by Behavior Analysis and Safety Improvement Category (BASIC) prior to the Safety Management System (SMS) launch; stay tuned for forthcoming information on this topic, www.csa2010.fmcsa.dot.gov.

Visit the CSA 2010 Website: FMCSA regularly updates materials on the CSA 2010 website -www.csa2010.fmcsa.dot.gov. You will find explanations, answers to questions, tips, and guidance. You can sign up for an email subscription or RSS feed to receive the most up-to-date information. You can also submit questions and review a full set of Frequently Asked Questions (FAQs). Be sure to review the materials about SMS and the new BASICs – understanding the new SMS is an important step in preparing for CSA 2010. Carriers will be able to preview their SMS data in the near future and they should take advantage of this opportunity. Monitoring the CSA 2010 Website will alert carriers to when and where the preview will be available.
Ensure compliance: Review your inspection and violation history for the past two years. Identify patterns, trends, and areas needing improvement and begin to address these now. Examine your business processes to determine how they may be contributing to any safety compliance problems. Take steps to increase your drivers’ awareness that inspections are more important than ever, that all violations count, not just Out-of-Service violations, and that their performance directly impacts their driving records and the safety assessment of their employing carrier.

DOT PUBLISHES NOTICE OF PROPOSED RULEMAKING FOR DRUG & ALCOHOL TESTING

Those of you who read the January issue of this publication may remember the comment that the U.S. Department of Transportation (DOT) was going to publish a notice of proposed rulemaking (NPRM) in the near future. Well, here it is; on February 4, 2010, DOT published the NPRM for 49 CFR Part 40. A copy may be obtained from the Federal Register web site at: http://edocket.access.gpo.gov/2010/pdf/2010-2315.pdf

Why is DOT doing this? As mentioned last month, DOT is required by The Omnibus Transportation Employee Testing Act of 1991, to use laboratories certified by, and testing procedures of, the U.S. Department of Health and Human Services (HHS) to ensure ``the complete reliability and accuracy of controlled substances tests.'' Since Congress specifically limited the scientific testing methodology upon which the DOT can base its drug and alcohol testing regulations, the DOT must follow the HHS scientific and technical guidelines. The NPRM is an attempt by the DOT to amend certain provisions of its drug testing program to create consistency with the new technical requirements established by the HHS Mandatory Guidelines.

The major changes that the DOT is proposing are as follows:

1. The DOT proposes changing some of the definitions and adding a few new ones to make them consistent with the HHS definitions.

2. The DOT proposes to allow employers to have the option to choose between using a full service drug testing laboratory and an Instrumented Initial Test Facility (IITF).

3. The DOT wants to add IITF’s to the laboratory section of their regulation and spell-out how an IITF should perform urine drug testing.

4. The DOT is proposing to adopt the following additional HHS laboratory testing requirements:

- Conduct initial testing for methylenedioxymethamphetamine (MDMA) commonly known as ``ecstasy,''
- Conduct confirmatory testing for methylenedioxyamphetamine (MDA), and methylenedioxyethylamphetamine (MDEA), which are close chemical analogues of MDMA,
- Conduct initial testing for 6-Acetylmorphines (Heroin),
- Lower the initial test and confirmatory test cutoff concentrations for Amphetamines; and
- Lower the initial test and confirmatory test cutoff concentrations for Cocaine.

5. The DOT is also proposing to amend Appendix B so that IITF’s will be required to report semi-annual test results to employers and Appendix C so that IITF’s would report semi-annual test data to the DOT.

6. The HHS Mandatory Guidelines will require that nationally recognized Medical Review Officer (MRO) certification entities or subspecialty boards for medical practitioners must have their qualifications, training programs, and examinations approve by the HHS on an annual basis. The DOT is seeking comments on whether Part 40 should also require these groups to be approved.

There are a number of other issues that the DOT also addresses in the NPRM. Many of these are related to the HHS procedural requirements, some of which the DOT does not want to adopt. For example, the DOT does not propose to require observers to receive advanced formalized training to learn about the steps necessary to perform a direct observation collection. The DOT does not propose to change their current requirement that a collector need not obtain prior approval from a collection site supervisor before performing a directly observed collection. Also, the DOT will continue to require collection sites to keep Copy 3 of the Custody and Control Form for only 30 days versus the new HHS requirement to keep the form for two years.

Other issues are related to the HHS requirement to audit 5 percent or a maximum of 50 collection sites; a 3 percent level of blind specimen testing versus current DOT 1 percent requirement; MRO record retention time frame and type of records that MROs maintain; and limits on IITF and MRO relationships.

A few of the issues may be of interest to employers. For example, what exactly is an Instrumented Initial Test Facility (IITF)? It is a mouthful, but the answer is relatively simple. The HHS published Proposed Revisions to their Mandatory Guidelines in the Federal Register on April 13, 2004. At that time, they proposed establishing permanent locations where initial testing, reporting of results, and record keeping were to be performed under the supervision of a responsible technician. These facilities would be certified by the HHS, but would not have the full capabilities to conduct confirmation testing. Any non-negative results would have to be forwarded to one of the current certified laboratories. The assumption was that some laboratories might want to establish IITFs to be closer to their customers and provide faster negative results to employers.

At this point, there are no IITFs established, so it is difficult to state how effective and how widely they will be used. As mentioned, the DOT will give an employer the option to use an IITF or a “regular” laboratory. One scenario, which may require watching, is whether or not use of IITFs will increase the lag time for reports related to non-negative results. In other words, if an IITF comes up with a non-negative result, they must package the specimens and forward them to the laboratory that can conduct confirmation testing. Will this increase the length of time for reporting non-negative results remains to be seen?

Although not clearly stated, another issue of interest is that the HHS will require initial testing for 6-Acetylmorphines without waiting for the MRO to request this test. The presence of this metabolite is proof of heroin use and the MRO does not have to find clinical evidence of illegal drug use. Of importance to employers is the fact that most of these changes – which may change again after comments from the public – will need to be added to their current drug and alcohol policies.

The DOT is requesting comments to their NPRM by April 5, 2010. Although the proposed changes do not seem to be dramatic or extensive, nevertheless, it behooves employers to read the NPRM and provide input to the DOT. Procedures on how to provide comments are listed in the NPRM.