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Nome Dickerson

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  • in reply to: Alcohol Tests vs Drug Tests #3813
    Nome Dickerson

    o Random and Reasonable Suspicion alcohol tests can only be conducted just before, during, or just after the performance of safety-sensitive functions.
    o Random and Reasonable Suspicion drug tests, however, can be conducted any time the employee is on duty (regardless of if the employee is performing a safety-sensitive function or not).
    o The FTA regulations require this difference in when an employer may conduct drug tests as opposed to alcohol tests.
    o Generally, because alcohol is a legal substance, USDOT-FTA (as a regulatory entity) has a limited legal authority of WHEN they can authorize tests on individuals for alcohol as opposed to drugs.
    o See 49 CFR Part 655.43(c) and Part 655.45(i).

    in reply to: Drug/alcohol testing #3809
    Nome Dickerson

    This answer boils down to a bigger root cause of compliance issues in USDOT drug and alcohol compliance: Testing Authority/Applicability.

    When an employer sends an employee for a USDOT-FTA drug/alcohol test (regardless of the reason for the test, such as Pre-employment, Post-accident, Random, etc.), the employer is essentially acting as the “arm” of USDOT-FTA. That is, when an employee is sent for a USDOT-FTA test, it is because that test has been authorized and required by USDOT-FTA, as opposed to the employer themselves.

    To send an employee for a USDOT-FTA test when that test is not authorized or required by USDOT-FTA regulations, the employer is in some way misrepresenting the Federal regulation as well as applying the Federal regulation when not authorized.

    When talking specifically about FTA post-accident testing, an employer is required to send an employee for a USDOT-FTA post-accident test if any of the “Three Thresholds” are met (see 49 CFR Part 655.44).

    The FTA post-accident test is only authorized by the federal regulation in certain circumstances (The “three thresholds”; 49 CFR Part 655.44)

    If none of the FTA’s “Three Thresholds” are met following an accident, not only is the employer not required to send the employee for the USDOT-FTA post-accident testing, the employer is prohibited from sending them for a USDOT-FTA post-accident test.

    If an employer wants to include in their drug & alcohol policy some type of language such as “ACME Transit reserves the right to conduct NON-DOT post-accident testing following an accident which does not require USDOT-FTA post-accident testing”, then they may be able to conduct a NON-DOT post-accident test under their own authority (on NON-DOT forms).

    However, the transit system must still have a procedure in place to determine after every accident, whether or not the USDOT-FTA thresholds were met.

    Additionally, if an agency decides to implement some type of NON-DOT post-accident testing procedures into their policy, they should absolutely seek legal consultation to ensure no other laws prohibit/limit this action.

    in reply to: Altoona tests prior to 10/31/16 #3806
    Nome Dickerson

    • Bus models that were tested prior to October 31st, 2016 are not subject to the Pass/Fail requirement. This effectively means that bus reports for buses that initiated testing prior to that date will not be rescored under Pass/Fail.
    • Partial testing that is performed after October 31st, 2016 on buses that initiated testing prior to October 31st, 2016 will not be Pass/Fail and will not be scored as the partial test results effectively amend the original test report that was not subject to pass/Fail.
    • Bus Models that initiated testing after October 31st, 2016 are subject to Pass/Fail and any subsequent partial testing on these models is also subject to the Pass/Fail requirement.

    in reply to: Changes Clause #3803
    Nome Dickerson

    I believe the changes you describe can be made under the changes clause. Yes you will need to do an ICE and a cost or price analysis for each of the changes. You may also want to review the Buy America calculations to determine if your changes affect compliance with the regulations.

    in reply to: Comprehensive EEO Plan #3798
    Nome Dickerson

    FTA’s EEO Circular 4704.1A provides guidance to FTA grant recipients necessary to carry out Equal Employment Opportunity requirements and prepare EEO Program Plans.

    • EEO Circular (PDF)
    • Sample Utilization Analysis Chart (Excel)
    • Sample Employment Practices Chart (Excel)
    • Federal Register notice
    • Letter to Grantees: Updated EEO Circular and Certification Questionnaire Information

    FTA requires recipients meeting the threshold below to prepare an EEO Program Plan. The program is a detailed, results-oriented set of procedures designed to ensure recipients meet EEO requirements in their agencies’ employment-related matters.

    Threshold Requirements

    Any FTA applicant, recipient, subrecipient, and contractor who meets both of the following threshold requirements must implement all of the EEO Program elements:

    • Employs 100 or more transit-related employees, and
    • Requests or receives capital or operating assistance in excess of $1 million in the previous Federal fiscal year, or requests or receives planning assistance in excess of $250,000 in the previous Federal fiscal year.

    Agencies that have between 50–99 transit-related employees are required to prepare and maintain an EEO Program that includes the statement of policy, dissemination plan, designation of personnel, assessment of employment practices, and a monitoring and reporting system.

    EEO Program Components

    • Statement of Policy
    • Dissemination
    • Designation of Personnel Responsibility
    • Utilization Analysis
    • Goals and Timetables
    • Assessment of Employment Practices
    • Monitoring and Reporting

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