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Agenda 10/26/2010 Item #16A 8Agenda Item No. 16A8 October 26, 2010 Page 1 of 19 EXECUTIVE SUMMARY Recommendation to approve the adoption of the Zero Tolerance Substance Abuse Policy for Collier Area Transit to be implemented by the transit service management vendor, Tectrans OBJECTIVE: To obtain approval for the adoption of the Zero Tolerance Substance Abuse Policy for Collier Area Transit to be implemented by the transit service management vendor, Tectrans. CONSIDERATION: In accordance with Federal Transit Administration (FTA) regulations, the Collier County Transit Management vendor has developed a Zero Tolerance Substance Abuse Policy, which meets all Department of Transportation (DOT) Federal guidelines and requirements. In order to be fully in compliance with FTA regulations and eligible to receive FTA Grants, a Board of County Commissioners approved substance abuse policy must be in place and followed by CAT. A Zero Tolerance Policy adopted by Tectrans involves strict prohibition on the use of illegal drugs and consumption of alcoholic beverages while employed by the company and imposes strict measures. Tectrans is dedicated to providing safe, dependable and efficient transportation services to our customers. They recognize that their safety - sensitive employees' use of illegal drugs and misuse of alcohol poses a significant risk to public safety, as well as the employee's health and well being. In view of this, the company has adopted this policy that is designed to: 1. Create a work environment free from the adverse effects of drug abuse and alcohol misuse; 2. Deter and detect employees' use of illegal drugs and misuse of alcohol; 3. Prohibit the unlawful manufacture, distribution, dispensing, possession, or use of controlled substances; and 4. Encourage employees to seek professional assistance anytime personal problems, including drug or alcohol dependency, adversely affect their ability to safely perform their assigned duties. The Management staff within the Alternative Transportation Modes Department endorses the policy adopted by Tectrans. FISCAL IMPACT: There is no fiscal impact associated with this item. LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office and is legally sufficient for Board action —SRT. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this Executive Summary. Agenda Item No. 16A8 October 26, 2010 Page 2 of 19 RECOMMENDATION: That the Collier County Board of Commissioners approve the Collier Area Transit Substance Abuse Policy and authorize the Chairman to sign and date the policy. Prepared by: Yousi Cardeso, Administrative Assistant, Alternative Transportation Modes Attachment: Tectrans Substance Abuse Policy Agenda Item No. 16A8 October 26, 2010 Page 3 of 19 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number. 16A8 Item Summary: Recommendation to approve the adoption of the Zero Tolerance Substance Abuse Policy for Collier Area Transit to be implemented by the transit management vendor, Tectrans. Meeting Date: 10/26/2010 9:00:00 AM Prepared By Yousi Cardeso Administrative Assistant Date Transportation Division Alternative Transportation Modes 1018/2010 4:03:39 PM Approved By Glama Carter Planner, Principal Date Transportation Division Alternative Transportation Modes 10/12/2010 10:29 AM Approved By Caroline Soto Management/Budget Analyst Date Transportation Division Transportation Administration 10/12/2010 10:38 AM Approved By Norm E. Feder, AICP Administrator - Transportation Date Transportation Division Transportation Administration 10/12/2010 10:53 AM Approved By Michelle Edwards Arnold Director - Alt Transportation Modes Date Transportation Division Alternative Transportation Modes 10/12/2010 12:01 PM Approved By Nick Casalanguida Director - Transportation Planning Date Transportation Division Transportation Planning 10112/2010 5:16 PM Approved By Natali Betancur Administrative Assistant Date Transportation Division Transportation Road Maintenance 10/14/2010 8:21 AM Approved By OMB Coordinator Date County Manager's Office Office of Management & Budget 10/14/2010 12:24 PM Approved By Scott R. Teach Deputy County Attorney Date County Attorney County Attorney 10/15/2010 11:33 AM Approved By Agenda Item No. 16A8 October 26, 2010 Page 4 of 19 Therese Stanley Manager - Operations Support - Trans Date Office of Management & Budget Office of Management & Budget 10/15/2010 2:29 PM Approved By Leo E. Ochs, Jr. County Manager Date County Managers Office County Managers Office 10/16/2010 2:07 PM TECTRANS SUBSTANCE ABUSE POLICY 1.0 POLICY STATEMENT Agenda Item No. 16A8 October 26, 2010 Page 5 of 19 Tectrans has adopted A Zero Tolerance Position on the use of illegal drugs, including alcoholic beverages while in the employ of the company and shall impose strict prohibition measures. Tectrans is dedicated to providing safe, dependable and efficient transportation services to our customers. We recognize that our safety- sensitive employees' use of illegal drugs and misuse of alcohol poses a significant risk to public safety, as well as the employee's health and well being. In view of this, the company has adopted this policy that is designed to: 1. Create a work environment free from the adverse effects of drug abuse and alcohol misuse; 2. Deter and detect employees' use of illegal drugs and misuse of alcohol; 3. Prohibit the unlawful manufacture, distribution, dispensing, possession, or use of controlled substances; and 4. Encourage employees to seek professional assistance anytime personal problems, including drug or alcohol dependency, adversely affect their ability to safely perform their assigned duties. 2.0 PURPOSE The purpose of this policy is to assure worker fitness for duty and to protect our employees, passengers, and the public from the safety and health risks posed by the misuse of alcohol and use of prohibited drugs. This policy is intended to comply with all applicable State and Federal regulations governing workplace anti -drug use and alcohol misuse programs in the transportation industry. They include, DOT 49 CFR Part 40, as amended on December 19, 2000 ( "Procedures for Transportation Workplace Drug and Alcohol Testing Programs "); FTA 49 CFR Part 655 ( "Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations ") ; DOT 49 CFR Part 29 ( "Drug -Free Workplace Act of 1988 "); and CA Govt. Code Section 8350 et. seq. ( "Drug -Free Workplace Act of 1990 "). This policy incorporates the requirements of above regulations for safety- sensitive employees and others when so noted. NOTE: Additional requirements and/or disciplinary actions established under Company authority are entered in bold -faced type. Requirements of the Drug -Free Workplace Act (not covered under Part 655) are in Italics. 3.0 APPLICABILITY Unless otherwise noted in specific provisions, this policy applies to all safety- sensitive, including paid part-time employees when they are on transit property or when performing any Company - related business. It applies also to off -site lunch periods or breaks when an employee is scheduled to return to work or is on -call. 4.0 PRE- EMPTION OF STATE AND LOCAL LAWS ��' ����� Adopt Revised: 04/01/2010 Adopted: Effective: April, 01, 2010 Page 1 Agenda Item No. 16A8 October 26, 2010 Page 6 of 19 If any conflict occurs between State and local laws and any requirement of the above - mentioned Federal regulations, the Federal regulations prevail. However, Federal regulations do not preempt provisions of State criminal laws that impose sanctions for reckless conduct attributed to prohibited drug use or alcohol misuse, whether the provisions apply specifically to transportation employees, employers, or the public in general. 5.0 DEFINITIONS Adulterated Specimen: A urine specimen that contains a substance that is not expected to be present in human urine, or contains a substance expected to be present but is at a concentration so high that it is not consistent with normal human urine. Alcohol Use: The drinking or swallowing of any beverage, liquid mixture or preparation (including any medication), containing alcohol. For purposes of this policy, alcohol is alcohol regardless of source. Breath Alcohol Technician (BAT): An individual who instructs and assists employees or applicants in the alcohol testing process and operates an Evidential Breath Testing (EBT) device. Canceled Test: A drug or alcohol test that has a problem identified that cannot be or has not been corrected, or which Part 40 requires to be canceled. A canceled test is neither a positive nor a negative test. Collector. A person who instructs and assists individuals at a collection site, who receives and makes an initial inspection of the specimen provided by the individual, and who initiates and completes the Custody and Control Form (CCF). Consortium/Third -Partv Administrator: A service agent that provides or coordinates the provision of a variety of drug and alcohol testing services to the company. Controlled Substances: Any drug classified by the U.S. Drug Enforcement Agency (DEA) into the five schedules or classes on the basis of their potential for abuse, accepted medical use, and accepted safety for use under medical supervision. Medications containing any controlled substance must be prescribed by a physician who has a valid DEA license number. Designated Employer Representative: An employee or employees authorized by the company to take immediate action(s) to remove employees from safety- sensitive duties following a positive test, test refusal, or other policy violations. Disabling Damage: Damage which precludes departure of a motor vehicle from the scene of the accident in its usual manner in daylight after simple repairs, including EC' RAA NS Revised: .04/01/2010 Adopted: Effective: April, 01, 2010 Page 2 Agenda Item No. 16A8 October 26, 2010 Page 7 of 19 damage to motor vehicles that could have been driven, but would have been further damaged if so driven. "Disabling damage" does not include: • Damage which can be remedied temporarily at the scene of the accident without special tools or parts. • Tire disablement without other damage even if no spare tire is available. • Headlamp or taillight damage. • Damage to turn signals, hom, or windshield wipers which make them inoperative. DHHS: Department of Health and Human Services. DOT: Department of Transportation. Drugs: The drugs for which tests are required under DOT and FTA regulations. They are marijuana, cocaine, amphetamines, phencyclidine (PCP) and opiates. Drug Abuse: Use of any illegal drug or controlled substance without a valid prescription, misuse of legally prescribed drugs, or use of illegally obtained prescription drugs. This includes use of prescription drugs legally prescribed to another individual. Evidential Breath Testing (EBT) Device: A device approved by the National Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath under DOT Part 40 and placed on the NHTSA's Conforming Products List. FTA: Federal Transit Administration. Mass Transit Vehicles: Vehicles used for mass transportation or ancillary services. Medical Review Officer (MRO): A licensed physician (medical doctor or doctor of osteopathy) responsible for receiving laboratory drug test results, who has knowledge of substance abuse disorders, and has the appropriate medical training to interpret and evaluate an individual's confirmed drug and /or validity test results together with the individual's medical history and any other relevant biomedical information. Positive Alcohol Test: The presence of alcohol in the body at a concentration of 0.04 BAC or greater as measured by an EBT device. Positive Drug Test: Any urine that is chemically tested (screened and confirmed), shows the presence of controlled substances, and is verified by the MRO. Refusal to Test: Includes circumstances or behaviors such as: • Failure to appear for any test (except pre - employment) at the collection site in the time allotted. • Leaving the collection site before the testing process is completed. ®E C ; RA1N� Revised: Yi 04/01/2010 Adopted: Effective: April, 01, 2010 Page 3 Agenda Item No. 16A8 October 26, 2010 Page 8 of 19 • Failure to provide a urine, breath, or saliva specimen as required by DOT Part 40. • Failure to permit the observation or monitoring of specimen collection when it is required. • Failure to provide a sufficient amount of urine or breath specimen without a valid medical explanation. • Failure or refusal to take a second test when required. • Failure to undergo a medical evaluation when required. • Failure to cooperate with any part of the testing process. (Example: refusal to empty pockets when requested by the collector, behaving in a confrontational manner that disrupts the collection process, or failure to wash hands when directed to do so by the collector) • For an observed collection, failure to follow the observer's instructions to raise clothing above the waist, lower clothing and underpants to about mid - thigh, and to turn around to permit the observer to determine if individual is wearing any type of device that could be used to interfere with the collection process. • Possession or wearing of a prosthetic or other device that could be used to interfere with the collection process. • Admitting adulteration or substitution of the urine specimen to the collector or the MRO. • Leaving the scene of the accident without just cause prior to submitting to a test. • If the MRO reports a verified adulterated or substituted test result. • In alcohol testing, refusal to sign Step 2 of the Alcohol Testing Form (ATF). A refusal to test is equivalent to a positive test result. Screening Test Technician (STT): A person who instructs and assists employees in the alcohol testing process and operates an alcohol screening device, such as a breath or saliva device, other than an EBT. Split specimen: In drug testing, a part of the urine specimen that is sent to a first laboratory and retained unopened, and which is transported to a second DHHS - certified laboratory for testing upon employee request following a verified positive or a verified adulterated or substituted test result from the primary specimen. Substance Abuse Professional (SAP): A person who evaluates employees who have violated a DOT drug and alcohol regulation and makes recommendations concerning education, treatment, follow -up testing, and aftercare. Substituted specimen: A specimen with creatinine and specific gravity values that are so diminished or so divergent that they are not consistent with normal human urine. Vehicles: Includes buses, electric buses, vans, automobiles, rail cars, trolley cars, trolley buses or vessels, non - revenue commercial motor vehicles, and vehicles used by armed security personnel. Zero Tolerance: A term used to describe a non - discretionary enforcement policy for laws, administrative rules, or other matters of organizational conduct. Under a system of Zero Tolerance, persons in position of authority who might otherwise exercise their ■ EC ' RA n IS Revised: 04/01/2010 Adopted: Effective: April, 01, 2010 Page 4 Agenda Item No. 16A8 October 26, 2010 Page 9 of 19 discretion in making subjective judgments regarding the severity of a given offense, are instead compelled to act in particular ways, and where relevant to impose a pre- determined punishment regardless of individual culpability. 6.0 EDUCATION AND TRAINING The education and ongoing awareness component of this policy will include display of posters, distribution to all employees of the drug and alcohol policy and other informational materials, and periodic information seminars. As required by FTA regulations, the company will provide to all safety- sensitive employees a minimum of 60 minutes of training on the effects and consequences of prohibited drug use on personal health, safety, and the work environment, and on the signs and symptoms that may indicate prohibited drug use. Information on the signs, symptoms, health effects and consequences of alcohol misuse is presented as Appendix A of this policy. Supervisors who may make reasonable suspicion referrals shall receive an additional 60 minutes of training on the physical, behavioral, and performance indicators of probable drug use, and at least 60 minutes of training on the physical, behavioral, speech and performance indicators of probable alcohol misuse. 7.0 CONTACT PERSON Any questions about this policy or any aspect of the company's drug- and alcohol -free program should be referred to: Jorge Flores 6053 W. Century Blvd. 9th Floor Los Angeles, CA 90045 (310) 981 -9500 x 152 (office) (310) 341 -6922 (cell) 8.0 COVERED EMPLOYEES 1 EC , RAN' Revised: 04/01/2010 Adopted: Effective: April, 01, 2010 Page 5 Agenda Item No. 16A8 October 26, 2010 Page 10 of 19 As a condition of employment, all employees are required to submit to drug and alcohol tests administered in accordance with 49 CFR Part 40 and Part 655. A refusal to submit to a test as directed will be considered to be a positive test result and the employee will be subject to all the attending consequences as stated in this policy. (Please refer to Section 5.0 - DEFINITIONS for specific circumstances or behaviors that are considered refusal to test.) As defined by the FTA, safety- sensitive employees include those who perform, or may be called upon to perform, the following safety- sensitive functions. 1. Operating a revenue service vehicle, even when it is not in revenue service; 2. Operating a non - revenue service vehicle when required to be operated by a Commercial Driver's License (CDL) holder; 3. Controlling dispatch or movement of a revenue service vehicle; 4. Maintaining (including repairs, overhaul and rebuilding) a revenue service vehicle or equipment used in revenue service. Supervisors are considered safety- sensitive only if they perform, or may be called upon to perform any of the above safety- sensitive functions. The company has analyzed actual job duties performed, or may be called upon to perform, by all of its employees and has determined that the following job classifications are considered safety- sensitive for the purposes of this policy. • Administrator • Operations Manager • Transportation Dispatcher • F/T and P/T Bus Drivers • Lead man/Mecha n ic • Mechanic EC ; RA�� Revised: 04/01/2010 Adopted: Effective: April, 01, 2010 Page 6 Agenda Item No. 16A8 October 26, 2010 Page 11 of 19 9.0 DRUGS (OR METABOLITES) TESTED FOR AND CONFIRMATORY CUT -OFF LEVELS • Marijuana • Cocaine • Opiates • Amphetamines /includes methamphetamines • Phencyclidine (PCP) • Ecstasy 10.0 PROHIBITED BEHAVIORS 10.1 Illegal Drugs Unless legally prescribed, the prohibited drugs listed on Section 9.0 are illegal and employees are prohibited from consuming any of them at all times. Employees may be tested for illegal drugs anytime they are on duty or subject to duty. 10.2 Prescription or Over - the - Counter Medication Under Company policy, the appropriate use of legally prescribed drugs and non- prescription medications is not prohibited. However, employees must notify their manager and may not perform any safety- sensitive function if their medication carries a warning label that mental functioning, motor skills or judgment may be adversely affected, unless the medication is being used in accordance with the instructions of a physician who has provided a written determination that the substance will not adversely affect the employee's ability to safely perform safety- sensitive duties. A prescription is considered valid only if it is in writing and indicates the employee's name, date, the name of the substance, quantity or amount to be taken, and the period of authorization. Prescriptions written by physicians who are not licensed by the U.S. Drug Enforcement Agency and /or controlled substances obtained the United States are not considered valid medical prescriptions under this policy. It is a violation of this policy to use any controlled substance in a manner that is inconsistent with the prescription. Any covered employee who violates this section of the policy is subject to disciplinary action, up to and including termination. 10.3 Alcohol Safety- sensitive employees are prohibited from consuming alcohol in any form: ■ EC , RA 'N"S Revised: 04/01/2010 Adopted: Effective: April, 01, 2010 Page 7 Agenda Item No. 16A8 October 26, 2010 Page 12 of 19 • while performing safety- sensitive functions; • within 4 hours prior to performing safety- sensitive functions; • while they are on call • Within eight hours following an accident requiring a post- accident alcohol test, unless the test was completed within 8 hours. Alcohol tests are conducted only just before, during, and just after the employee's performance of a safety- sensitive function. An alcohol test is considered positive if the employee's BAC is at 0.04 or greater. If a safety- sensitive employee tests positive for alcohol at a concentration equal to or greater than 0.02 but less than 0.04, he/she cannot continue to perform any safety- sensitive function until eight hours have passed, or the employee was re- tested and the result was less than 0.02. 11.0 TYPES OF TESTING 11.1 PRE - EMPLOYMENT TESTING All applicants for employment or any employee transferring from a non - safety- sensitive to a safety- sensitive position will be required to undergo a pre - employment drug test at a time and place designated by the company. A verified negative drug test result must be received from the MRO prior to hire. If a pre - employment test is canceled, the individual will be required to undergo another test and successfully pass the test with a verified negative result. In accordance with the revised Part 40, the company will check on the drug and alcohol testing background of new hires and other employees beginning safety- sensitive work after obtaining the individual's written consent if they previously performed safety - sensitive work for a DOT - covered employer within the last two years. If the individual refuses to provide the written consent, he /she will not be hired into the safety- sensitive position. In addition, if the individual has had a positive DOT pre - employment drug or alcohol test within the last two years, or has refused such a test, he /she will not be hired until and unless the individual has provided a documentation of successful completion of the return-to -duty process, which includes a SAP referral, evaluation and treatment plan. In addition, if the employee has not performed any safety- sensitive function for at least 90 consecutive calendar days regardless of the reason, and the employee has not been in the random selection pool during that time, he or she must pass a pre - employment drug test before being allowed to return to safety- sensitive duties. 11.2 REASONABLE SUSPICION TESTING Whenever a supervisor has reason to believe that an employee has used a prohibited drug and /or engaged in alcohol misuse, reasonable testing will be conducted. The referral will be made by a trained supervisor based on the specific, contemporaneous, and articulable observations concerning the appearance, behavior, speech, or body odors of the employee. The supervisor who makes the referral need not be the employee's own supervisor, as long as he /she has received training in detecting the TI E ; RAn'S Revised: 04/01/2010 Adopted: Effective: April, 01, 2010 Page 8 Agenda Item No. 16A8 October 26, 2010 Page 13 of 19 signs and symptoms of drug use and alcohol misuse. The supervisor's observations will be documented and such documentation shall be kept in the employee's confidential drug and alcohol testing file. A reasonable suspicion alcohol test will be conducted only if the reasonable suspicion observation is made just before, during, or just after the employee's performance of safety- sensitive function. Once a supervisor has made a reasonable suspicion determination, he /she must remove the employee from performing any safety- sensitive functions and arrange to have the employee accompanied to the testing site immediately. If the alcohol test is not conducted within two hours, reason for the delay must be documented and kept in the employee's reasonable suspicion test file. All attempts to complete the alcohol test must cease after eight hours. 11.3 POST- ACCIDENT TESTING Any covered employee operating a mass transit vehicle at the time of an accident shall be required to submit to drug and alcohol tests as soon as practicable after the accident. For purposes of this policy, "accident" is defined as an accident involving a mass transit vehicle where the result is: • An individual dies; • An individual suffers a bodily injury and immediately receives medical treatment away from the scene; • The mass transit vehicle ( if bus, electric bus, van, or automobile) or any other vehicle(s) involved in the accident suffers a disabling damage as a result of the accident and is transported away from the scene by a tow truck or other vehicle; or • The mass transit vehicle (if rail car, trolley car, trolley bus, or vessel) is removed from revenue service. 11.3.1 Fatal Accidents Whenever there is a loss of human life, any surviving employee operating the company vehicle at the time of the accident shall be tested for drugs and alcohol. Any safety- sensitive employee not in the vehicle but whose performance could have contributed to the accident also shall be tested. 11.3.2 Non -fatal Accidents Following non -fatal accidents, the employee operating the vehicle at the time of the accident shall be tested unless his /her performance can be completely discounted as a contributing factor to the accident. Any other safety- sensitive employee whose performance could have contributed to the accident also shall be tested. 11.3.3 Other Post - Accident Testing Requirements 1 EC T RA'N S Revised: 04,01,2010 Adopted: Effective: April, 01, 2010 Page 9 Agenda Item No. 16A8 October 26, 2010 Page 14 of 19 Employees involved in an accident that requires testing must remain readily available for testing, including notifying the company of their location if they leave the scene of the accident before testing to obtain emergency medical care, or to obtain assistance in responding to the accident. They will be considered to have refused to submit to testing if they fail to do so. Employees are prohibited from using alcohol for eight hours following an accident or until the post- accident testing is completed, whichever occurs first. Every effort will be made to conduct alcohol testing within two hours after the accident. In the event the alcohol test is delayed beyond two hours, the company will prepare and maintain a record stating the reason(s) for the delay. If an alcohol test is not administered within eight hours following the accident, the company will cease all efforts to administer the test and document the reason for the inability. In the event a drug test is not administered within 32 hours from the time of the accident, the company will cease all attempts to administer the drug test. This requirement should not be construed to delay the necessary medical attention for injured people following the accident. If the company is unable to perform post- accident tests in accordance with FTA regulations, the company will use the post- accident test results administered by State or local law enforcement personnel under their own authority. This is acceptable only under limited circumstances and the test results must be obtained by the Company. Following a post- accident test, the employee is not allowed to perform any safety- sensitive function until the company has received a verified negative drug test result and an alcohol test result of less than 0.02. An employee whose drug test and /or alcohol test produces a negative result shall be promptly returned to his /her regular work and be made whole for any lost wages, unless the employee is suspended for any additional purposes concurrent with the waiting of the test results. 11.4 RANDOM TESTING As required by FTA regulations, safety- sensitive employees are required to undergo random drug and alcohol tests to deter use of prohibited drugs and misuse of alcohol. The random selection will be conducted using a scientifically valid method, such as a random number table or a computer -based random number generator which gives each covered employee an equal chance of being selected every time a selection is made. As is the nature of the random method, it is possible that some employees will be selected several times in one year, and other employees not for several years. Management does not have any discretion on who will be selected. Every effort will be made by the company to spread random testing reasonably throughout the calendar year, all days of the week, and all hours when safety- sensitive functions are performed. The testing dates and times are unannounced and employees TI EC T RAIN Revised: 04/01/2010 Adopted: Effective: April, 01, 2010 Page 10 Agenda Item No. 16A8 October 26, 2010 Page 15 of 19 are required to immediately proceed to the designated collection site following notification. The Company will conduct random drug and alcohol tests at a minimum annual percentage of covered employees as required by the FTA. The rates are subject to change on an annual basis, depending on the industry-wide positive rate determined by the FTA from the annual MIS reports submitted by covered employers. 11.5 RETURN -TO -DUTY TESTING Following SAP referral, an employee who has refused a required test, has a verified positive, adulterated or substituted drug test result, or tests positive for alcohol at 0.04 or greater, will be immediately terminated. In the event that such an employee is allowed to return to work, he /she must successfully complete the retum -to -duty process before he /she is allowed to resume any safety- sensitive function for the company. This includes successful completion of the rehabilitation, treatment or education program outlined by the SAP, and obtaining a verified negative drug test and /or alcohol test under 0.02 prior to being allowed back to work. 11.6 FOLLOW -UP TESTING In addition to the Return -to Duty test described in Section 11.5 above, an employee who previously tested positive, or refused to take the test, shall be subject to follow -up testing for drugs and /or alcohol, as prescribed by the SAP, for a minimum period of 12 months to a maximum of five years. As mandated by the FTA, the employee shall undergo at least six follow -up tests during the first 12 months of his /her return to work. Although they are both unannounced, follow -up testing is apart and separate from random testing. The duration and frequency of testing will be designated by the SAP, but the actual follow -up testing dates will be decided by the employee's manager or supervisor. The employee is responsible for payment of all costs associated with follow -up testing. 12.0 DRUG & ALCOHOL TESTING PROCEDURES All DOT drug and alcohol tests required under this policy will be administered in accordance with the "Procedures for Transportation Workplace Drug and Alcohol testing Programs (49 CFR Part 40), as amended Throughout the testing process, the privacy of the employee will be protected and the integrity and validity of the process will be maintained. The drug testing procedure will include a split specimen collection method, and a DOT Chain of Custody and Control Form with a unique identification number to ensure that the correct test result is attributed to the correct employee. An initial screening test using an immunoassay technique will be performed. If the specimen is positive for one or more of the drugs tested, then a confirmation test will be performed using the state -of- the -art gas chromatography /mass spectrometry (GC /MS) analysis. Additionally, the laboratory will conduct analyses to determine if a urine specimen has been adulterated, tampered with, or diluted. If the MRO reports a negative - dilute test 1 EC 1 R^n1S 04/oi %20 0 Adopted: Effective: April, 01, 2010 Page 11 Agenda Item No. 16A8 October 26, 2010 Page 16 of 19 result, the Company will direct the employee to take a second test with no advance notice, and depending on the level of creatinine reported by the laboratory to the MRO, the MRO may direct the second test to be directly observed. Should the second test result in another negative - dilute result, the test will be considered a negative and no additional testing will be required unless directed to do so by the MRO. If the test is confirmed positive, the MRO will conduct a verification process, which includes giving the employee an opportunity to provide a valid medical explanation for the positive test result. The laboratory is required to keep positive, adulterated, substituted or invalid specimens for one year, or longer if requested. If the laboratory reports to the MRO an "Invalid Result" or "Rejected for Testing" (because of a fatal or uncorrectable flaw), a recollection may be required and depending on the circumstances, the MRO may require a directly- observed collection. Tests for alcohol concentration will be conducted using an alcohol screening device (breathalyzer or saliva) and an evidential breath testing (EBT) device if the screen test is at 0.02 BAC or greater. A DOT Alcohol Testing Form will be used and a unique sequential number will be assigned to each test. Detailed drug and alcohol specimen collection procedures are available upon request from the Contact Person identified in Section 7.0 of this policy. 13.0 DIRECTLY- OBSERVED URINE SPECIMEN COLLECTION Under the following circumstances, the employee will be directed to undergo an immediate urine specimen collection under direct observation with no advance notice: • If the laboratory reported to the MRO that a specimen is invalid and there was no adequate medical explanation for the result; • If the MRO reported that the original positive, adulterated, or substituted test result had to be canceled because the split specimen testing could not be performed; • If the drug test is a return-to -duty or a follow -up test; • If the collector observes employee conduct or materials brought to the collection site that clearly indicates an attempt to tamper with a specimen; • If the temperature on the original specimen was out of range; or • If the original specimen appeared to have been tampered with. The observer shall be the same gender as the employee, but need not be the collector. The observer is responsible for ensuring that the specimen goes from the employee's body into the collection container. Prior to the collection, the observer must request the employee to raise his /her shirt, blouse, or dress /skirt, as appropriate, above the waist; lower clothing and underpants to about mid - thigh; and to turn around to show the observer that he or she is not wearing any type of prosthetic device that could be used to interfere with the collection process. If none is observed, the employee may return clothing to its proper position for observed urination. If the employee declines to allow a -EC ; RAIN Revised: ®® 04/01/2010 Adopted: Effective: April, 01, 2010 Page 12 Agenda Item No. 16A8 October 26, 2010 Page 17 of 19 directly observed collection when required under this policy, it is considered a refusal to test. 14.0 MONITORED URINE SPECIMEN COLLECTION Under those circumstances when a multi -stall restroom has to be used for urine specimen collection and the facility cannot be adequately secured, the collector will conduct a monitored collection. The monitor shall be the same gender as the employee, unless the monitor is a medical professional. The monitor will not watch the employee void into the collection container. However, if the monitor hears sounds or observes attempts to tamper with a specimen, an additional collection under direct observation will be ordered. If the employee declines to permit a collection authorized to be monitored, the employee is considered to have refused to test. 15.0 SPLIT SPECIMEN TESTING After notification by the MRO of a verified positive drug test or refusal to test because of adulteration or substitution, the employee has 72 hours to request (verbally or in writing) a test of the split specimen. However, there is no split specimen testing allowed for an invalid test result. After 72 hours have passed, the request can be considered only if the employee can present to the satisfaction of the MRO information that unavoidably prevented the employee from making a timely request. Following the employee's timely request, the MRO shall send a written request to the primary laboratory to forward the split specimen to a second DHHS - certified laboratory for testing without regard to the cut -off concentration. If the second laboratory fails to reconfirm the substance detected in the primary specimen or the adulterant identified, or if the split specimen is unavailable for testing, the test shall be canceled. The MRO shall report the cancellation and the reasons for it to the DOT, the company, and the employee. In the case of the split specimen being unavailable, the employee shall be directed, with no advance notice, to submit another specimen under direct observation. All costs related to split specimen testing will be paid by the employee. The employee shall be reimbursed if the second test invalidates the original test or if the test was canceled. 16.0 CONSEQUENCES As required by FTA regulations, any safety- sensitive employee who has a verified positive drug test result, an alcohol concentration of 0.04 or above, or refuses to submit to a required drug or alcohol test (including adulteration or substitution) shall be: 1. Immediately taken out of safety- sensitive duty; 2. Referred to a SAP for evaluation, education or treatment and provided educational materials. T EC , RA IN ' Revised: 04/01/2010 Adopted: Effective: April, 01, 2010 Page 13 Agenda Item No. 16A8 October 26, 2010 Page 18 of 19 If an employee tests positive for alcohol at 0.02 to 0.039, he /she will be removed from safety - sensitive duties until his /her next regularly scheduled workday (if at least 8 hours from the completion of the test), or if a re -test shows a result of less than 0.02. FTA regulations allow individual employers to determine the discipline to be imposed on employees who violate the FTA regulations or company policy. It is the policy of TECTRANS to terminate employees after the first offense. Such disciplinary action will follow the FTA required actions outlined above. 17.0 REFERRAL, EVALUATION AND TREATMENT If an employee (including an applicant) tests positive for drug(s) or alcohol or refuses to submit to a test when required, the company shall advise the employee of the resources available for evaluating and resolving problems associated with prohibited drug use and alcohol misuse and document such referral. The employee shall be given the name, address and phone number of SAPs acceptable to the company and a list of community hot line numbers. The individual will be responsible for any costs associated with the SAP evaluation and recommendation(s). 18.0 CONFIDENTIALITY AND ACCESS TO FACILITIES AND RECORDS Employees have a right to examine their own drug and alcohol testing records, provide information to dispute the results, and have access to any pertinent data such as EBT calibration or drug testing laboratory certification. They also have a right to obtain a copy of their own drug and /or alcohol testing results by submitting a written request to the Drug and Alcohol Program Manager identified in Section 7.0 of this policy. The Company will do everything possible to safeguard the confidentiality of drug and alcohol testing records and protect the privacy of the individuals tested. Individual test results or medical information will be released to third parties only with the employee's specific written consent, or to those parties authorized by the DOT or FTA to receive such information without the employee's consent. The employee's written consent is not required in administrative or legal proceedings such as: A lawsuit, grievance, or administrative proceeding brought by, or on behalf of the employee, resulting from a positive drug or alcohol test or a refusal to test; or A criminal or civil action resulting from an employee's performance of safety - sensitive duties where the alcohol or drug test information is deemed relevant. Access to the company facilities and drug and alcohol program records also must be provided, without the employee's consent, to DOT or FTA agency representatives; the National Transportation Safety Board as part of an accident investigation; r a Federal, state or local safety agency with regulatory authority over the company or the employee; or State or grantee required to certify to FTA compliance with 49 CFR Part 40 and Part 655. In addition, DOT has adopted a rule authorizing employers and Third Party Administrators (TPAs) to disclose to state commercial driver licensing (CDL) authorities �' ���'� Revised: 04/01/2010 ((YY �� Adopted: Effective: April, 01, 2010 Page 14 Agenda Item No. 16A8 October 26, 2010 Page 19 of 19 (e.g., DMV) the drug and alcohol violations of employees who hold CDLs and operate commercial motor vehicles, when a State law allows it. . 19.0 DRUG -FREE WORKPLACE ACT of 1988 (DFWA) REQUIREMENTS Under the DFWA, employees are prohibited from the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in the workplace. Employees are required to notify management in writing of any criminal drug statute convictions he /she receives for a violation occurring in the workplace, no later than five calendar days after such a conviction. Within 10 calendar days of receiving such notice, the company shall provide written notification of the conviction to the FTA Within 30 calendar days of receiving notice of the conviction, the company shall take appropriate disciplinary action, or require the employee to participate and successfully complete a drug rehabilitation program. iT C T RAI S Revised: oa /o1 /zolo Adopted: Effective: April, 01, 2010 Page 15