Town of Rosendale, NY
Ulster County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Rosendale 12-13-1995 by Res. No. 12-95-5. Amendments noted where applicable.]
The Town Board of the Town of Rosendale hereby adopts the Drug and Alcohol Policy and Program, a copy of which is annexed hereto and made a part hereof.[1]
[1]
Editor's Note: See § 8A-2 et seq. of this chapter.
A. 
The Federal Highway Administration (FHWA) has issued a rule requiring alcohol and drug testing of drivers who are required to have a commercial driver's license (CDL). The Department of Transportation (DOT) rules include procedures for urine drug testing and breath alcohol testing.
B. 
Title 49 CFR Part 382, Controlled Substances and Alcohol Use and Testing, requires employers to test their employees who maintain a CD license in the performance of their duties for prohibited drugs and alcohol under the following work-related conditions:
(1) 
Preemployment/preassignment.
(2) 
Postaccident.
(3) 
Random.
(4) 
Reasonable cause/suspicion.
(5) 
Return to duty.
(6) 
Follow-up.
The Town of Rosendale recognizes that the use and/or abuse of alcohol or controlled substances by drivers of commercial vehicles or employees in safety-sensitive positions presents a serious threat to the safety and health of employees and the general public. It is the policy of the Town of Rosendale that its drivers and safety-sensitive support personnel should be free of drugs and alcohol in compliance with the Omnibus Transportation Employee Testing Act of 1991. The Town of Rosendale has implemented a drug and alcohol testing program which is designed to help reduce and avoid traffic accidents and injuries to our employees and the public, to discourage substance and alcohol abuse and to reduce other drug- and alcohol-related problems.
For purposes of this chapter, the Town of Rosendale prohibits the use of alcohol and/or controlled substances by all employees. In accordance with the FHWA ruling, all employees with a CDL license are required to have alcohol and/or drug testing.
A. 
Town of Rosendale policy prohibits employees from engaging in the following conduct:
(1) 
Using, possessing, dispensing, distributing, selling, or receiving alcohol, intoxicants, illegal drugs or other controlled substances on Town premises, or while engaged on Town business.
(2) 
Reporting to work under the influence, or with any measurable amount of alcohol, intoxicants, illegal drugs, or other controlled substances in their system.
(3) 
Reporting to work under the influence of a prescription drug unless the employee's physician determines that the use of the prescription drug will not adversely affect the employee's ability to perform a safety-sensitive function. Note that the federal regulations include prescription medications containing alcohol in the substances banned from use in the workplace. Therefore, employees should not report for duty while taking prescription medication if such medication contains any measurable amount of alcohol.
(4) 
Consuming any amount of alcohol, intoxicants, illegal drugs, or other controlled substances while on duty or within four hours of reporting for duty.
(5) 
Refusing to undergo or cooperate in any alcohol or drug testing required by this chapter.
(6) 
Misusing this chapter in regard to subordinates.
(7) 
Providing false information in connection with a test, falsifying test results through tampering, contamination, adulteration, or substitution.
B. 
Any employee who violates any of the rules set forth above is subject to discipline, up to and including termination.
Safety-sensitive employees may not consume alcohol:
A. 
Within four hours before performing a safety-sensitive function;
B. 
While performing a safety-sensitive function;
C. 
After a fatal accident unless the employee has been tested or eight hours have elapsed from the actual time of the accident; or
D. 
After a nonfatal accident unless the employee's involvement can be completely discounted as a contributing factor to the accident, the employee has been tested, or eight hours have elapsed from the actual time of the accident.
The unauthorized use of any controlled substance is strictly prohibited in all situations.
For purposes of this anti-drug and alcohol misuse plan, the following definitions apply:
A. 
An occurrence involving a commercial vehicle operating on a public road which results in:
B. 
A fatality;
C. 
Bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
D. 
One or more motor vehicles incurring disabling damage as a result of the accident, requiring the vehicle to be transported away from the scene by a tow truck or other vehicle.
E. 
If an employee is ticketed for a moving traffic violation as a result of an accident while driving a commercial motor vehicle, the employee is subject to a drug and alcohol test under the plan.
ALCOHOL
The intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol.
ALCOHOL CONCENTRATION (OR CONTENT)
The alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by an evidential breath test under this chapter.
ALCOHOL USE
The consumption of any beverage, mixture, or preparation, including any medication containing alcohol.
BREATH ALCOHOL TECHNICIAN (BAT)
An individual who instructs and assists individuals in the alcohol testing process and operates an evidentiary breath testing device (EBT).
COLLECTION SITE
A designated clinic/facility where applicants or employees may present themselves for the purpose of providing a specimen of their urine to be analyzed for the presence of drugs or providing a sample of their breath to be analyzed for the presence of alcohol.
COMMERCIAL MOTOR VEHICLE
A motor vehicle or combinations of motor vehicles used in commerce to transport passengers or property if the motor vehicle:
A. 
Has a gross combination rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight of more than 10,000 pounds; or
B. 
Has a gross vehicle weight rating of 26,001 or more pounds;
C. 
Is designed to transport 16 or more passengers including the driver; or
D. 
Is of any size and is used in the transportation of materials found to be hazardous for the purpose of the Hazardous Materials Transportation Act which requires the motor vehicle to be placarded under the Hazardous Material Regulations (49 CFR Part 172, Subpart F).
CONFIRMATION TEST
For alcohol testing, means a second test, following a screening test with a result of 0.02 or greater, that provides quantitative data of alcohol concentration. For controlled substances, testing means a second analytical procedure to identify the presence of a specific drug or metabolite, which is independent of the screen test and which uses a different technique and chemical principle from that of the screen test in order to ensure reliability and accuracy. (Gas chromatography) mass spectrophatometry (GC/MS) is the only authorized confirmation method for cocaine, marijuana, opiates, amphetamines, and phencyclidine.
CUTOFF LEVELS
The minimum value established for designating a test result as positive.
DRIVER
Any person who operates a commercial motor vehicle. This includes, but is not limited to, full-time, regularly employed drivers; casual, intermittent or occasional drivers; leased drivers and independent, owner-operator contractors who are either directly employed by or under lease to an employer or who operate a commercial motor vehicle at the direction of or with the consent of any employer. For the purpose of a preemployment or preduty testing only, the "driver" includes a person applying to drive a commercial motor vehicle.
DRUGS (PROHIBITED)
All controlled substances including, but not limited to, marijuana, cocaine, amphetamines, phencyclidine and/or opiates.
FAIL A DRUG TEST or TEST POSITIVE
The confirmation test result shows positive evidences of the presence under DOT procedures of a prohibited drug in the employee's or applicant's system.
MEDICAL REVIEW OFFICER (MRO)
A licensed physician (medical doctor or doctor of osteopathy) responsible for receiving laboratory results generated by an employer's drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's confirmed positive test result together with that individual's medical history and any other biomedical information.
PASS A DRUG TEST OR TEST NEGATIVE
The initial testing or confirmation testing under DOT procedures does not show evidence of the presence of prohibited drugs in the employee's or applicant's system.
REFUSE TO SUBMIT TO AN ALCOHOL OR CONTROLLED SUBSTANCE TEST
An employee either:
A. 
Fails to provide adequate breath for testing without a valid medical explanation after he or she received notice of the requirement for breath testing in accordance with the provisions of this chapter;
B. 
Fails to provide adequate urine for controlled substance testing without a valid medical explanation after receiving notice of the requirement for urine testing in accordance with the provisions of this chapter; or
C. 
Engages in conduct that clearly obstructs the testing process.
SCREENING TEST (also known as "initial test")
In alcohol testing, an analytical procedure to determine whether a driver may have a prohibited concentration of alcohol in his or her system. In controlled substance testing, it means an immunoassay screen to eliminate "negative" urine specimens from further consideration.
SUBSTANCE ABUSE PROFESSIONAL (SAP)
A licensed physical (medical doctor or doctor of osteopathy) or a licensed or certified psychologist, social worker, employee assistance professional, or addiction counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission) with knowledge of and clinical experience in the diagnosis and treatment of alcohol and controlled substance-related disorders.
The DAPM shall be responsible for the preparation of the Drug and Alcohol Testing Policy which complies with requirements of the Department of Transportation regulations as set forth in Title 49 CFR Parts 382 and 40. The DAPM shall be responsible for:
A. 
Providing oversight and evaluation of this chapter;
B. 
Providing guidance and counseling;
C. 
Reviewing of all discipline applied under this chapter for consistency and conformance to the Employee Handbook's policy and procedure;
D. 
Overseeing the third-party administrator;
E. 
Maintaining a secure file system on drug/alcohol testing results;
F. 
Keeping all necessary records.
A. 
It is the intent of the Town to contract with a private health care system provider as a third-party administrator. The TPA will be responsible for:
(1) 
Scheduling random drug and alcohol testing;
(2) 
Collection of all drug and alcohol samples at a testing site(s) meeting the requirements of the OTETA regulation 40.25;
(3) 
Providing all alcohol testing using EBT devices which meet the guidelines and specifications of National Highway Safety Administration;
(4) 
Providing all drug testing including blind testing in compliance with the OTETA requirements;
(5) 
Providing the service of a certified MRO as required by the OTETA;
(6) 
Keeping all necessary records associated with the service provided.
B. 
The Town of Rosendale shall ensure that all covered employees are aware of the provisions and coverage of this chapter.
Supervisors are responsible for observing the performance and behavior of employees, documenting events which might require reasonable cause testing and requesting a second supervisor for substantiation for reasonable cause testing, if available.
Each covered employee has the responsibility to be knowledgeable of the requirements of the plan and to fully comply with the provisions of the plan. Covered employees must notify their supervisor of any criminal drug statute conviction within five days of such conviction. Upon receipt of such notification or other notice for a violation occurring within the workplace, the Town will, as required by law, take action as covered by the Town of Rosendale Employee Handbook. A covered employee using drugs prescribed by a licensed physician or any other therapeutic drug use is required to notify his or her supervisor when such may impact the employee's ability to perform his duties safely.
A preemployment drug and alcohol test must be conducted before an individual is hired or contracted and when an individual is hired or contracted and when an individual is transferred/promoted from a noncovered to a covered position. This also applies to employees returning from paid or unpaid leave of 30 days or more who have not been participating in the drug and alcohol testing policy and have not been subject to the random selection process. A negative test is required prior to performing safety-sensitive functions.
If the accident involves a commercial motor vehicle and falls within the definition of "accident," the employee shall be drug tested as soon as possible, but no later than 32 hours after the accident. Each employee shall also be alcohol tested within two hours of the accident if possible, but no later than eight hours after the accident. The Town of Rosendale must take all reasonable steps to obtain a urine specimen and breath sample from an employee after an accident, as defined above, but any injury should be treated first.
A. 
The primary purposes of random testing are to deter prohibited drug and alcohol use and to ensure a drug-free and alcohol-free workforce. Regulations require that covered employees shall be subject to drug and alcohol testing on an unannounced and random basis. The Town of Rosendale shall conduct a number of drug tests on all covered employees equal to at least 50% of the average number of covered employees each calendar year, spread reasonably over a twelve-month period. In addition, the Town shall conduct a number of alcohol tests on covered employees equal to at least 25% of the number of such covered employees each calendar year, spread reasonably over a twelve-month period. The following is an outline of the key aspects of the random testing selection process:
(1) 
Employees remain in the random selection pool at all times, regardless of whether or not they have been previously selected for testing.
(2) 
Employees shall be selected for testing in a statistically random manner so that all persons within the group have an equal opportunity of selection on each occasion.
(3) 
The process will be unannounced as well as random. Employees will be notified that they have been selected for testing after they have reported for duty on the day of collection.
B. 
The employee notification and testing procedures are as outlined in Appendix E.[1]
[1]
Editor's Note: See § 8A-25.
A. 
Reasonable cause/suspicion testing is designed to identify drug- and/or alcohol-affected employees who may pose a danger to themselves and others in their job performance. Employees may be at work in a condition that raises concern regarding their safety or productivity. Supervisors must then make a decision as to whether there is reasonable cause to believe an employee is using or has used a prohibited drug and/or alcohol. Supervisors will be provided with training designed to identify the signs and symptoms of drug and/or alcohol use. The decision to test must be based on a reasonable and articulate belief that the employee is using a prohibited drug and/or alcohol on the basis of specific, current, physical, behavioral or performance indicators of probable drug and/or alcohol use. In making a determination of reasonable cause, the factors to be considered include, but are not limited to, the following:
(1) 
Adequately documented pattern of unsatisfactory work performance, for which no apparent nonimpaired related reason exists, or a change in an employee's prior pattern of work performance.
(2) 
Physical signs and symptoms consistent with substance abuse.
(3) 
Evidence of illegal drug or alcohol use, possession, sale or delivery while on duty.
(4) 
Occurrences of a serious or potentially serious accident that may have been caused by human error or flagrant violations of established safety, security or other operational procedures.
B. 
Anytime an employee tests positive for alcohol (0.02 or greater), a supervisor will arrange to transport the employee from the collection site to the employee's home. Anytime an employee is drug tested under the reasonable cause or postaccident section of this chapter, the employee shall not perform any safety-sensitive duties pending the receipt of the drug test results.
An employee who refuses to take or fails a drug or alcohol test may not return to duty (i.e., perform safety-sensitive functions) until the employee passes a drug and alcohol test, if applicable, and the substance abuse professional (SAP) has determined that the employee may return to duty (i.e., perform a safety-sensitive function).
A. 
Compliance with the Town's Drug and Alcohol Testing Policy is a condition of employment. If an employee refuses to take a required test, or fails a drug and/or alcohol test, he shall be removed from any safety-sensitive functions and placed on leave without pay. Additional disciplinary actions up to and including termination may result.
B. 
The Town of Rosendale shall not use any employee in a safety-sensitive function who either fails a drug test as verified by the MRC, fails an alcohol test verified by the BAT or refuses to take a drug and/or alcohol test as required by this chapter.
C. 
Before an employee returns to duty requiring the performance of a safety-sensitive function after engaging in conduct prohibited by this chapter, the employee shall undergo a return-to-duty drug and/or alcohol test with a result indicating an alcohol concentration of less than 0.02 if the conduct involved was alcohol; or an illegal drug test with a verified negative result if the conduct involved illegal drugs. The employee will be responsible for any fee involved in return-to-duty drug and/or alcohol testing, and all following-up testing.
D. 
In addition, each employee identified as needing assistance in resolving problems associated with alcohol misuse or illegal drug use shall be:
(1) 
Evaluated by the Town of Rosendale's SAP to determine that the employee has properly followed any rehabilitation program prescribed by the SAP. The employee shall be responsible for all rehabilitation charges in excess of those covered under the Town's medical plan; and
(2) 
Subject to unannounced follow-up alcohol and illegal drug tests administered by the Town following the employee's return to duty. The number and frequency of such follow-up testing shall be prescribed by the SAP and conforming to the OTETA regulations.
A. 
General. All collection or testing of samples will be done by the third-party administrator.
B. 
Collection sites. The collection sites shall have all necessary personnel, materials, equipment, facilities and supervision to provide for the collection, security, temporary storage and shipping of urine specimens to a certified testing laboratory; and to conduct alcohol tests by a breath alcohol technician (BAT) trained to proficiency in the operation of the evidentiary breath testing device (EBT).
C. 
Certified laboratory. The testing laboratory shall be certified under DHHS Mandatory Guidelines for Federal Workplace Drug Testing Programs; 53 Federal Register 11970, April 11, 1988, and subsequent amendments. The laboratory shall provide services in accordance with Part 4 and Part 382. The laboratory shall permit inspections by the Town, the FHWA Administrator, or, if the Town is subject to the jurisdiction of a state agency, a representative of the state agency.
A. 
General information. The Town of Rosendale shall contract with the third-party administration for the services of an MRO for this drug testing policy in accordance with the requirements of Title 49 CFR 40.33. The MRO shall be a licensed physician with knowledge of drug abuse disorders. The MRO shall review all positive drug test results and interview individuals testing positive to verify the laboratory report before notifying the Town.
B. 
Positive test results. Following verification of a positive test result, the MRO shall, as provided in the Town's policy, refer the case the DAPM (or designee) for action.
C. 
Reconfirmation analysis. The MRO shall notify each employee with a confirmed positive test that the employee has 72 hours in which to request a test of the split specimen. If the employee requests an analysis of the split specimen within 72 hours of having been informed of a verified positive test, the MRO shall direct, in writing, the laboratory to provide the split specimen to another DHHS certified laboratory for analysis. If the analysis of the split specimen fails to reconfirm the presence of the drug(s) found in the primary specimen, is unavailable, inadequate for testing, or not testable, the MRO shall cancel the test and report the cancellation and the reasons for it to the Town and the employee.
D. 
Disclosure of information.
(1) 
Except as provided in this paragraph, the MRO shall not disclose to any third party medical information provided by the individual to the MRO as a part of the testing verification process. The MRO may disclose such information to the Town, county, DOT or federal safety agency, or a physician responsible for determining the medical qualifications of the employee under the appropriate DOT regulation, as applicable, only if:
(a) 
An applicable DOT regulation permits or requires such disclosure;
(b) 
In the MRO's medical judgment, the information could result in the employee being determined to be medically unqualified under any applicable DOT rule; or
(c) 
In the MRO's medical judgment, in a situation in which there is no DOT rule establishing physical qualifications standards applicable to the employee, the information indicates that continued performance by the employee of his/her covered function could pose a significant safety risk.
(2) 
Before obtaining medical information from the employee as part of the verification process, the MRO shall inform the employee that information may be disclosed to third parties as provided in this paragraph and the identity of any parties to who information may be disclosed.
A. 
General information. The DAPM (or designee) shall maintain a locked file system which will contain drug and/or alcohol test results. This file shall be maintained as confidential. Employees' files shall be handled on a strict "need to know" basis. Drug and/or alcohol test results shall not be included in personnel files. Information regarding an individual's drug and/or alcohol testing results or rehabilitation may be released only upon written consent of the affected employee, except:
(1) 
Such information must be released regardless of consent to DOT or other government agency as part of an accident investigation; or
(2) 
Such information may be disclosed regardless of consent in a lawsuit, grievance or other proceeding initiated by or on behalf of the employee and arising from a verified positive drug and/or alcohol test.
B. 
Employee access. An employee is entitled, upon written request, to obtain copies of any records pertaining to the employee's use of alcohol or drugs, including any records pertaining to his/her alcohol or drug test.
C. 
Location of records. All records required by 49 CFR shall be maintained and shall be made available for inspection at the Town of Rosendale's principal place of business within two business days after a request has been made by an authorized representative of FHWA.
A. 
Drug/Alcohol Program Manager (DAPM):
(1) 
Town Supervisor.
(2) 
Town Deputy Supervisor.
(3) 
Highway Superintendent.
B. 
Medical review officer (MRO): provided by third-party administrator.
C. 
Third-party administrator: Kingston Hospital Occupational Health and Wellness Center.
D. 
Substance abuse professional (SAP): Kingston Hospital Employee Assistance Program.
E. 
Certified laboratory: provided by third-party administrator.
A. 
Drugs.
(1) 
Scope.
(a) 
The drug testing custody and control form is to be used as a permanent record on which identifying data on the employee and on the specimen collection and transfer process are retained. The drug testing plan requires testing for marijuana, cocaine, opiates, amphetamines and phencyclidine.
(b) 
Urine specimens collected under this plan may be used only to test for controlled substances designated or approved for testing as described in this section and shall not be used to conduct any other analysis or test.
(c) 
This plan does not prohibit procedures reasonably incident to analysis of the specimen for controlled substance (e.g., determination of pH or test for specific gravity, creatinine concentration or presence of adulterants).
(2) 
Procedures. The collection site person shall utilize the DOT approved drug testing custody and control form (COC).
(3) 
Security.
(a) 
The purpose of this paragraph is to prevent unauthorized access which could compromise the integrity of the collection process of the specimen.
(b) 
The designated collection site is to be secure. If a collection site facility is dedicated solely to urine collection, it shall be secure at all times. If a facility cannot be dedicated solely to drug testing, the portion of the facility used for testing shall be secure during drug testing.
(c) 
A facility normally used for other purposes, such as a public rest room or hospital examining room, may be secured by visual inspection to ensure other persons are not present and undetected access (e.g., through a rear door not in view of the collection site person) is not possible. Security during collection may be maintained by effective restriction of access to collection materials and specimens. In the case of a public rest room, the facility must be posted against access during the entire collection procedure to avoid embarrassment to the employee or distraction of the collection site person.
(d) 
If it is impractical to maintain continuous physical security of a collection site from the time the specimen is presented until the sealed mailer is transferred for shipment, the following minimum procedures shall apply:
[1] 
The specimen shall remain under the direct control of the collection site person from delivery to its being sealed in the mailer.
[2] 
The mailer shall be immediately mailed, maintained in secure storage, or remain until mailed under the personal control of the collection site person.
(4) 
Chain of custody.
(a) 
The chain-of-custody block of the drug testing custody and control form shall be properly executed by authorized collection site personnel upon receipt of specimens.
(b) 
Handling the transportation of urine specimens from an authorized individual or place to another shall always be accomplished through chain-of-custody procedures. Every effort shall be made to minimize the number of persons handling specimens.
(5) 
Access to authorized personnel only.
(a) 
No unauthorized personnel shall be permitted in any part of the designated collection site when urine specimens are collected or stored. Only the collection site person may handle specimens prior to their securement in the mailing container or monitor or observe a specimen collection (under the conditions specified in this section).
(b) 
To promote security of specimens, avoid distraction of the collection site person and ensure against any confusion in the identification of specimens, the collection site person shall have only one donor under supervision at any time.
(c) 
For this purpose, a collection procedure is complete when the urine bottle has been sealed and initialed, the drug testing custody and control form has been executed, and the employee has departed the site (or, in the case of an employee who was unable to provide a complete specimen, has entered a waiting area).
(6) 
Privacy.
(a) 
Procedures for collecting urine specimens shall allow individual privacy unless there is a reason that a particular individual may alter or substitute the specimen to be provided, as further described in this paragraph.
(b) 
For purposes of this procedure, the following circumstances are the exclusive grounds constituting a reason to believe that the individual may alter or substitute the specimen:
[1] 
The employee has presented a urine specimen that falls outside the normal temperature range (32º C. to 38º C./90º F. to 100º F.); and
[a] 
The employee declines to provide a measurement of oral body temperature; or
[b] 
Oral body temperature varies by more than 1º C./1.8º F. from the temperature of the specimen.
[2] 
The last urine specimen provided by the employee (i.e., on a previous occasion) was determined by the laboratory to have a specific gravity of less than 1.003 and a creatinine concentration below 0.2 g/l;
[3] 
The collection site person observes conduct clearly and unequivocally indicating an attempt to substitute and adulterate the sample (e.g., substitute urine in plain view, blue dye in specimen presented); or
[4] 
The employee has previously been determined to have used a controlled substance without medical authorization and the particular test was being conducted under a DOT regulation providing for follow-up testing upon or after return to service.
(c) 
A higher-level supervisor of the collection site person, or a designated employer representative, shall review and concur in advance with any decision by a collection site person to obtain a specimen under the direct observation of a same-gender collection site person based upon the circumstances described in Subsection A(6)(b) above.
(7) 
Integrity and identity of specimen. The collection site person shall take precautions to ensure that a urine specimen is not adulterated or diluted during the collection procedure and that information on the urine custody and control form can identify the individual from whom the specimen was collected. The following minimum precautions shall be taken to ensure that unadulterated specimens are obtained and correctly identified:
(a) 
To deter the dilution of specimens at the collection site, toilet bluing agents shall be placed in toilet tanks wherever possible, so that reservoir of water in the toilet bowl always remains blue. Where practicable, there shall be no other source of water (e.g., no shower or sink) in the enclosure where urination occurs. If there is another source of water in the enclosure, it shall be effectively secured or monitored to ensure it is not used as a source of diluting the specimen.
(b) 
When an individual arrives at the collection site, the collection site person shall ensure that the individual is positively identified as the employee selected for testing (e.g., through presentation of photo identification or identification by the employer's representative). If the individual's identity cannot be established, the collection site person shall not proceed with the collection. If the employee requests, the collection site person shall show proper identification to the employee.
(c) 
If the individual fails to arrive at the assigned time, the collection site person shall contact the appropriate authority to obtain guidance on the action to be taken.
(d) 
The collection site person shall ask the individual to remove any unnecessary outer garments such as coat or jacket that might conceal items or substances that could be used to tamper with or adulterate the individual's urine specimen. The collection site person shall ensure that all personal belongings such as a purse or briefcase remain with the outer garments. The individual may retain his or her wallet. If the employee requests it, the collection site person shall provide the employee a receipt for any personal belongings.
(e) 
The individual shall be instructed to wash and dry his or her hands prior to urination.
(f) 
After washing hands, the individual shall remain in the presence of the collection site person and shall not have access to any water fountain, faucet, soap dispenser, cleaning agent, or any other materials which could be used to adulterate the specimen.
(g) 
The individual may provide their specimen in the privacy of a stall or otherwise partitioned area that allows for individual privacy. The collection site person shall provide the individual with a specimen bottle or collection container, if applicable, for this purpose.
(h) 
The collection site person shall note any unusual behavior or appearance on the urine custody and control form.
(i) 
In the exceptional event that an employer-designated collection site is not accessible and there is an immediate requirement for specimen collection (e.g., circumstances require a postaccident test), a public rest room may be used according to the following procedures: A collection site person of the same gender as the individual shall accompany the individual into the public rest room which shall be made secure during the collection procedure. If possible, a toilet bluing agent shall be placed in the bowl and any accessible toilet tank. The collection site person shall remain in the rest room, but outside the stall, until the specimen is collected. If no bluing agent is available to deter specimen dilution, the collection site person shall instruct the individual not to flush the toilet until the specimen is delivered to the collection site person. After the collection site person has possession of the specimen, the individual will be instructed to flush the toilet and to participate with the collection site person in completing the chain-of-custody procedures.
(j) 
Collection methodology.
[1] 
Upon receiving the specimen from the individual, the collection site person shall determine if it has at least 45 ml of urine (30 ml for the primary specimen and 15 ml for the secondary specimen). If the individual is unable to provide such a quantity of urine, the collection site person shall instruct the individual to drink not more than 24 ounces of fluids and, after a period of up to two hours, again attempt to provide a complete sample using a fresh collection container. The original insufficient specimen shall be discarded. If the employee is still unable to provide an adequate specimen, the insufficient specimen shall be discarded, testing discontinued, and the DAPM notified. The MRO shall refer the individual for a medical evaluation to develop pertinent information concerning whether the individual's inability to provide a specimen is genuine or constitutes a refusal to test. Upon completion of the examination, the MRO shall report his or her conclusions to the employer in writing.
[2] 
In preemployment testing, if the employer does not wish to hire the individual, the MRO is not required to make such a referral.
[3] 
Upon completion of the examination, the MRO shall report his/her conclusions to the employer in writing.
(k) 
The collection procedures set forth below shall be followed for a urine collection:
[1] 
The donor shall urinate into a collection container or specimen bottle capable of holding at least 60 ml.
[2] 
If a collection container is used, the collection site person, in the presence of the donor, pours the urine into two specimen bottles. Thirty ml shall be poured into one bottle, to be used as the primary specimen. At least 15 ml shall be poured into the other bottle, to be used as the split specimen.
[3] 
If a single specimen bottle is included as a collection container, the collection site person shall pour 30 ml of urine from the specimen bottle into a second specimen bottle (to be used as the primary specimen) and retain the remainder (at least 15 ml) in the collection bottle (to be used as the split specimen).
[4] 
Both bottles shall be shipped in a single shipping container, together with copies one, two, and the split specimen copy of the chain-of-custody form, to the laboratory.
[5] 
If the test result of the primary specimen is positive, the employee may request that the MRO direct that the split specimen be tested in a different DHHS-certified laboratory for presence of the drug(s) for which a positive result was obtained in the test of the primary specimen. The MRO shall honor such a request if it is made within 72 hours of the employee having been notified of a verified positive test result.
[6] 
When the MRO informs the laboratory in writing that an employee has requested a test of the split specimen, the laboratory shall forward, to a different DHHS-approved laboratory, the split specimen bottle, with seal intact, a copy of the MRO request, and the split specimen copy of the chain-of-custody form with appropriate chain-of-custody entries.
[7] 
The result of the test of the split specimen is transmitted by the second laboratory to the MRO.
[8] 
Action required by DOT agency regulations as the result of a positive test (e.g., removal from performing a safety-sensitive function) is not stayed pending the result of the test of the split specimen.
[9] 
If the result of the test of the split specimen fails to reconfirm the presence of the drug(s) or drug metabolite(s) found in the primary specimen, the MRO shall cancel the test, and report the cancellation and the reasons for it to the DOT, the employer and the employee.
(l) 
After the specimen has been provided and submitted to the collection site person, the individual shall be allowed to wash his/her hands.
(m) 
Immediately after the specimen is collected, the collection site person shall measure the temperature of the specimen. The temperature measuring device used must accurately reflect the temperature of the specimen and not contaminate the specimen. The time from urination to temperature measure is critical and in no case shall exceed four minutes.
(n) 
A specimen temperature outside the range of 32º C. to 38º C./90º F. to 100º F. constitutes a reason to believe that the individual has altered or substituted the specimen. In such cases, the individual supplying the specimen may volunteer to have their temperature taken to provide evidence to counter the reason to believe the individual may have altered or substituted the specimen.
(o) 
Immediately after the specimen is collected, the collection site person shall also inspect the specimen to determine its color and look for any signs of contaminants. Any unusual findings shall be noted on the urine custody and control form.
(p) 
All specimens suspected of being adulterated shall be forwarded to the laboratory for testing.
(q) 
Whenever there is reason to believe that particular individual has altered or substituted the specimen as described in Subsection A(6)(b)[1] and [3], a second specimen shall be obtained as soon as possible under the direct observation of a same-gender collection site person.
(r) 
Both the individual being tested and the collection site person shall keep the specimen in view at all times prior to being sealed and labeled. As provided below, the specimen shall be sealed by placement of a tamper-proof seal over the bottle cap and down the side of the bottle and labeled in the presence of the employee. If the specimen is transferred to a second bottle, the collection site person shall request the individual to observe the transfer of the specimen and the placement of the tamper-proof seal over the bottle cap and down the sides of the bottle.
(s) 
The collection site person and the employee shall be present at the same time during procedures outlined in Subsections A(7)(t) through (w) of this section.
(t) 
The collection site person shall place securely on the bottle an identification label which contains the date, the individual's specimen number and any other identifying information provided or required by the employer. If separate from the label, the tamper-proof seal shall also be applied.
(u) 
The individual shall initial the identification label on the specimen bottle for the purpose of certifying that it is the specimen collection from the donor.
(v) 
The collection site person shall enter on the drug testing custody and control form all information identifying the specimen. The collection site person shall sign the drug testing custody and control form certifying that the collection was accomplished according to the applicable federal requirements.
(w) 
The individual shall be asked to read and sign a statement on the drug testing custody and control form that the specimen collected from him/her is in fact that specimen he/she provided.
(x) 
The collection site person shall complete the chain-of-custody portion of the drug testing custody and control form to indicate receipt of the specimen from the employee and shall certify proper completion of the collection.
(y) 
The urine specimen and chain-of-custody form are now ready for shipment. If the specimen is not immediately prepared for shipment, the collection site person shall ensure that it is appropriately safeguarded during temporary storage.
(z) 
Control of specimen.
[1] 
While any part of the above chain-of-custody procedures is being performed, it is essential that the urine specimen and custody documents be under the control of the involved collection site person.
[2] 
If the involved collection site person leaves their work station momentarily, the collection site person shall take the specimen and drug testing custody and control form with them or shall secure them. After the collection site person returns to the work station, the custody process will continue. If the collection site person is leaving for an extended period of time, they shall package the specimen for mailing before leaving the site.
[3] 
The collection site person shall not leave the collection site in the interval between presentation of the specimen by the employee and securement of the sample with an identifying label bearing the employee's specimen identification number and seal initialed by the employee. If it becomes necessary for the collection site person to leave the site during this interval, the collection shall be nullified and at the election of the employer a new collection may be begun.
(8) 
Collection control. To the maximum extent possible, collection site personnel shall keep the individual's specimen bottle within sight both before and after the individual has urinated. After the specimen is collected, it shall be properly sealed and labeled.
(9) 
Transportation to laboratory. Collection site personnel shall arrange to ship the collected specimens to the drug testing laboratory. The specimens shall be placed in shipping containers designed to minimize the possibility of damage during shipment (e.g., specimen boxes and/or padded mailers); and those containers shall be securely sealed to eliminate the possibility of undetected tampering. On the tape sealing the container, the collection site person shall sign and enter the date specimens were sealed in the containers for shipment. The collection site person shall ensure that the chain-of-custody documentation is attached to each container sealed for shipment to the drug testing laboratory.
(10) 
Failure to cooperate. If the employee refuses to cooperate with the collection process, the collection site person shall inform the designated employer representative and shall document the noncooperation on the drug testing custody and control form.
(11) 
Employee requiring medical attention. If the sample is being collected from an employee in need of medical attention as part of a postaccident test given in an emergency medical facility, necessary medical attention shall not be delayed in order to collect the specimen.
(12) 
Use of chain-of-custody forms. A chain-of-custody form shall be used for maintaining control and accountability of each specimen from the point of collection of final disposition of the specimen. The date and purpose shall be documented on the form each time a specimen is handled or transferred and every individual in the chain shall be identified. Every effort shall be made to minimize the number of persons handling specimens.
B. 
Alcohol.
(1) 
Scope. The evidential breath testing procedures set forth in this subsection address all the requirements as set forth in 49 CFR Part 40 and specify the required form and disposition of such testing forms.
(2) 
Alcohol testing form and log book.
(a) 
The BAT shall utilize the breath alcohol testing form provided by the employer. The alcohol testing form must comply with the provisions as contained in 49 CFR Part 40 with regard to the information that must be contained on the form. The form must address the specific requirements contained in Section 40.59. The employer may not modify or revise the form.
(b) 
The employer may utilize a form that is directly generated by an EBT and may omit the space for affixing a separate printed result to the testing form. The form shall provide triplicate or three consecutive identical copies with copy one (white copy) being retained by the employer; copy two (green copy) shall be provided to the employee; and copy three (blue copy) shall be retained by the BAT.
(c) 
The employer shall use a log book in conjunction with any EBT used for screening tests that does not meet the requirements for receipts/numbering sequential.
(d) 
The breath alcohol testing form may include such additional information as may be required for billing and other legitimate purposes necessary to the testing, provided that personal identifying information on the individual (other than the social security number or employee identification number) may not be provided.
(3) 
Breath testing locations.
(a) 
The employer shall ensure that there are sufficient breath testing sites or the availability of BATs located within a reasonable proximity to each of the employer's work locations.
(b) 
The employer shall conduct the testing in a location that affords visual and aural privacy to the employee being tested. The location shall prevent unauthorized personnel from seeing or hearing test results. All necessary equipment, personnel and materials for conducting the alcohol testing shall be provided at the testing site.
(c) 
A mobile collection facility, such as a van that is equipped with alcohol testing, that meets the requirements set forth in the regulations may be utilized.
(d) 
No unauthorized persons shall be permitted access to the testing site when the EBT remains unsecured, or in order to prevent such individuals from seeing or hearing a test result.
(e) 
In some circumstances the employer may have to conduct such alcohol testing outdoors at the scene of an accident that does not meet the requirements as specified in postaccident provisions of the regulations; then the BAT shall provide the necessary visual and aural privacy to the employee to the greatest extent practicable.
(f) 
The BAT shall supervise only one employee's use of the EBT at a time. The BAT shall not leave the alcohol testing site while the testing process is in progress.
(4) 
Breath alcohol testing preparations.
(a) 
When an employee arrives at the alcohol testing site, the BAT shall ensure that the individual is positively identified as the employee selected for alcohol testing (e.g., through presentation of photo identification or identification by the employer's representative). If the employee's identity cannot be established, the BAT shall not proceed with the alcohol test. If the employee requests, the BAT shall show proper identification to the employee.
(b) 
The BAT shall explain the alcohol testing process to the employee.
(c) 
If the employee fails to arrive at the assigned time, the BAT should contact the appropriate authority to obtain guidance on any action to be taken.
(5) 
Screening test procedures.
(a) 
The BAT shall begin the alcohol testing process by completing Step 1 on the alcohol breath testing form. The employee shall then complete Step 2 by signing the certification. Refusal by the employee to sign the certification shall be regarded as a refusal to take the alcohol test.
(b) 
The BAT shall select an individually sealed mouthpiece and it shall be opened in full view of the employee, and shall attach it to the EBT in accordance with the manufacturer's instructions.
(c) 
The BAT shall instruct the employee to blow forcefully into the mouthpiece for at least six seconds or until the BET instrument indicates that an adequate amount of breath has been obtained.
(d) 
If the EBT does not meet the requirements listed for printing receipts, the BAT shall show the employee the result displayed on the EBT. The BAT shall record the displayed result, test number, testing device, serial number of the testing device, time and quantified result in Step 3 of the form. The BAT shall record in the log book the test number, date of the test, name of the BAT, location and quantified test result. The employee shall then initial the log book entry.
(e) 
If the EBT provides a printed result but does not print the results directly onto the form, the BAT shall show the employee the result displayed on the EBT. The BAT shall then affix the test result printout to the breath alcohol test form in the designated space. The result shall be secured in such a manner that will provide clear evidence of removal, such as the use of tamper-evident tape.
(f) 
If the EBT prints the test result directly onto the alcohol form, then the BAT shall show the employee the result displayed on the EBT.
(g) 
If the result of the screening alcohol test is a breath alcohol concentration of less than 0.02, the BAT shall date the form and sign the certification in Step 3 of the form. The employee shall then sign the certification and fill in the date in Step 4 of the form. If the employee does not sign the certification in Step 4 or does not initial the log book entry for test, it shall not be considered a refusal to be tested. In this event, the BAT shall note the employee's failure to sign or initial in the "Remarks" section of this form.
(h) 
If a test result printed by the EBT does not match the displayed result, the BAT shall note the disparity in the "Remarks" section. Both the BAT and the employee shall initial or sign the notation. The alcohol test is invalid and the DAPM and the employee shall be so advised.
(i) 
At this point, no further testing is authorized. The BAT shall transmit the result of less than 0.02 to the DAPM or other appropriate employer representative in a confidential manner. The employer shall receive and store the information so as to ensure that confidentiality is maintained as required in the regulations.
(j) 
If the result of the screen test is an alcohol concentration of 0.02 or greater, then the BAT shall perform a confirmation test. If the confirmation test will be conducted by a different BAT, then the BAT who conducts the screening test shall complete and sign the form and log entry. The BAT will upon completion of the alcohol test provide the employee with Copy 2 of the breath alcohol testing form.
(6) 
Confirmation test procedures.
(a) 
When a BAT other than the one who conducted the screening is required to conduct the confirmation test, the new BAT will require the employee to provide positive identification such as photo ID card or identification by a employer representative. The BAT will upon request of the employee being tested provide such identification.
(b) 
The BAT shall instruct the employee not to eat, drink, put any object or substance in his/her mouth and, to the extent possible, not belch during the waiting period just prior to the confirmation test being conducted. This waiting period shall begin with the completion of the screening test and shall not be less than 15 minutes, but must be within 20 minutes of the completion of the screening test. The BAT shall explain to the employee that the reason for this is to prevent any accumulation of mouth alcohol leading to an artificially high reading and that it is for the benefit of the employee to comply with these instructions. The BAT shall also explain that the test will be conducted at the end of the required waiting period, even if the employee has disregarded the instructions. Should the BAT become aware that the employee has not complied with the instructions as provided, the BAT shall note the observations in the "Remarks" section of the form.
(c) 
When a BAT other than the one who conducted the screening test is required to conduct the confirmation test, the new BAT shall initiate a new breath alcohol testing form. The BAT shall then complete Step 1 on the form and the employee shall then complete Step 2 by signing the certification. If the employee should choose not to sign the certification, the BAT shall then make an appropriate notation in the "Remarks" section indicating the employee's refusal to take the alcohol test. The BAT shall note in the "Remarks" section that a different BAT conducted the screening test.
(d) 
The BAT shall open, in the presence of the employee, a new individually sealed mouthpiece and attach the mouthpiece to the EBT in accordance with the manufacturer's instructions. The BAT will then instruct the employee to blow forcefully into the mouthpiece for at least six seconds or until the EBT indicates that an adequate amount of breath has been obtained.
(e) 
The BAT shall ensure, prior to the confirmation test being administered to the employee, that the EBT shall register 0.00 on an air blank. Should the EBT again register greater than 0.00, the testing shall not proceed using that EBT. An EBT taken out of service because of failure to perform an air blank accurately shall not be used for testing until a check of external calibration is conducted and the EBT is found to be within the accepted tolerance limits. Alcohol testing using another EBT may proceed.
(f) 
In the event that the screening and confirmation test results are not identical, the confirmation test results shall be deemed to be the final result on which any disciplinary action by the employer may be taken in order to comply with the requirements of the plan and any applicable federal requirements.
(g) 
If the EBT provides a printed result but does not print the results directly onto the form, the BAT shall show the employee the result displayed on the EBT. The BAT shall then affix the test result printout to the breath alcohol test form in the designated space. The result shall be secured in such a manner that will provide clear evidence of removal, such as the use of tamper-evident tape.
(h) 
If the EBT prints the test result directly onto the alcohol form, then the BAT shall show the employee the result displayed on the EBT.
(i) 
After the confirmation test is completed, the BAT shall date the form and sign the certification in Step 3 of the form. The employee shall then be instructed to sign the certification and fill in the date in Step 4. If the employee should elect to not sign the certification or to provide his/her initials in the log book entry for the test conducted, it shall not be considered a refusal to be tested. The BAT shall then note the employee's failure to sign or initial the log book in the "Remarks" section of the testing form.
(j) 
If a test result printed by the EBT does not match the displayed result, the BAT shall note the disparity in the "Remarks" section. Both the BAT and employee shall initial or sign the notation on the testing form. The test shall be considered "invalid" and the employer representative and the employee shall be so advised.
(k) 
The BAT shall transmit all alcohol testing results to the DAPM or other employer representative in a confidential manner. All communications by BATs shall be to the DAPM or designee only and may be provided in writing, in person or by telephone or electronic means. The BAT shall ensure that immediate transmission of the test results to the employer is conducted in order for the employer to prevent the employee from performing any covered functions.
(l) 
The initial transmission will be accomplished in writing, via fax to the DAPM or designee. The BAT shall follow the initial transmission by providing to the DAPM or designee the company's copy of the breath alcohol testing form. The test results shall be stored in such a manner so as to protect the confidentiality of the results and to eliminate the disclosure of information to unauthorized persons.
(7) 
Refusals to test and uncompleted tests.
(a) 
Refusal by an employee to complete and sign Step 2 of the breath alcohol testing form, to provide breath, to provide an adequate amount of breath, or otherwise to cooperate with the testing process in a way that prevents the completion of the test shall be noted by the BAT in the "Remarks" section of the form. The testing process shall be terminated and the BAT shall immediately notify the employer DAPM or designee.
(b) 
If a screening or confirmation test cannot be completed or if an event occurs to invalidate the test, the BAT shall, if practicable, begin a new screening or confirmation test using a new breath alcohol testing form with a new sequential test number.
(8) 
Inadequate amount of breath.
(a) 
If the employee is unable, or alleges that he/she is unable, to provide a sufficient amount of breath to permit a valid breath test because of a medical condition, the BAT shall again instruct the employee to attempt to provide an adequate amount. If the employee refuses to make the attempt, the BAT shall immediately inform the DAPM.
(b) 
If the employee attempts and fails to provide an adequate amount of breath, the BAT shall so note in the "Remarks" section of the testing form and shall immediately inform the DAPM. The DAPM shall direct the employee to obtain, as soon as practical after the attempt, an evaluation from a licensed physician who is acceptable to the employer concerning the employee's medical ability to provide an adequate amount of breath.
(c) 
If the physician determines, in his/her reasonable medical judgment, that a medical condition has or could have precluded the employee from providing an adequate amount of breath, the employee's failure to provide an adequate amount of breath shall not be deemed as a refusal to take an alcohol test. The physician shall provide to the employer DAPM a written statement of the basis of his/her conclusion.
(d) 
If the physician, in his/her reasonable medical judgment, is unable to make the determination that a medical condition has precluded the employee from providing an adequate amount of breath, the employee's failure to provide an adequate amount of breath shall be regarded as a refusal to take a test. The physician shall provide a written statement of the basis of his/her conclusion to the employer DAPM.
(9) 
Invalid tests. A breath alcohol test shall be invalid under the following circumstances:
(a) 
The EBT does not pass its next external calibration check. This invalidates all test results of 0.02 or greater on tests conducted since the last valid external calibration test. This would not invalidate any negative tests conducted.
(b) 
The BAT does not observe the minimum fifteen-minute waiting period prior to conducting the confirmation test.
(c) 
The BAT does not perform an air blank of the EBT before a confirmation test, or an air blank does not result in a reading of 0.00 prior to the administration of an alcohol test.
(d) 
The BAT does not sign the breath alcohol testing form.
(e) 
The BAT fails to note in the "Remarks" section of the form that the employee has failed or refused to sign the form following the recording or printing on or attachment to the form of the test results.
(f) 
An EBT fails to print a confirmation test result.
(g) 
The sequential test number or alcohol concentration displayed on the EBT is not the same as the sequential test number or alcohol concentration on the printed result.
A. 
Drug test.
(1) 
All drug tests required under this plan shall be accomplished utilizing a urinalysis drug-testing methodology. The initial immunoassay screen test will eliminate "negative" urine specimens from further consideration. A confirmatory test shall be utilized to identify the presence of a specific drug for all "positive" urine specimens resulting from the initial tests. This confirmatory test shall use a more reliable technique than the initial screen test [i.e., gas chromatography/mass spectrometry (GC/MS)].
(2) 
If the test result of the primary specimen is positive, the employee may request that the MRO direct the split specimen to be tested in a different DHHS-certified laboratory for presence of the drugs for which a positive result was obtained in the test of the primary specimen. The MRO shall honor such a request if it is made within 72 hours of the employee having been notified of a verified positive test result. This additional confirmatory test shall use the GC/MS methodology.
(3) 
All testing and tests required under this plan shall be done in accordance with the requirements of the DOT regulations entitled "Procedures for Transportation Workplace Drug Testing Programs (49 CFR Part 40)," and the United States Department of Health and Human Services "Mandatory Guidelines for Federal Workplace Drug Testing Programs" and any, if more stringent, applicable to New York State rules. These governmental regulations set forth the testing requirements for the drugs, the specimen collection procedures, including the chain of custody, and the required laboratory certification.
B. 
Alcohol tests. All alcohol tests shall be performed on an evidential breath testing device (EBT) approved by the National Highway Traffic Safety Administration (NHTSA) which appears on the NHTSA's "Conforming Products List of Evidential Breath Measurement Devices" (CPL). All alcohol tests shall be performed by a certified breath alcohol technician (BAT).
A. 
There are strict time requirements regarding postaccident testing. It is the employee's responsibility to notify supervision immediately of an accident as defined under the definition section of the plan. If an employee is unsure whether an incident falls under the definition of accident, the employee shall notify supervision of the incident so that an appropriate decision can be made and documented by the supervisor. The supervisor shall notify the employer's Drug and Alcohol Program Manager immediately of an accident which may require a drug and/or alcohol test. Nothing in this instruction shall be construed to require the delay of necessary medical attention for injured people following an accident or prohibit an employee from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident or to obtain necessary emergency medical care.
B. 
No employee shall use alcohol following an accident as defined in the definition section of this policy for eight hours following the accident, or until he/she undergoes a postaccident alcohol test, whichever first occurs.
C. 
An employee who is subject to postaccident testing who fails to remain readily available for such testing, including notifying the employer of his/her location if he/she leaves the scene of the accident prior to submission to such test, may be deemed by the employer to have refused to submit to testing.
A. 
Testing.
(1) 
Initial test. The initial test shall use an immunoassay which meets with the requirement of the Food and Drug Administration for commercial distribution.
(2) 
Confirmatory test. All specimens identified as positive on the initial test shall be confirmed using gas chromatography/mass spectrometry (GC/MS) techniques at the cutoff values listed in the regulations for each drug. All confirmations shall be by quantitative analysis.
B. 
Reporting results.
(1) 
The laboratory shall report test results to the employer's MRO within an average of five working days after receipt of the specimen by the laboratory. Before any test result is reported (the results of initial tests, confirmatory tests or quality control data), it shall be reviewed and the test certified as an accurate report by the responsible individual. The report shall identify the drugs/metabolites tested for, whether positive or negative, the specimen number assigned by the employer, and the drug testing laboratory specimen number.
(2) 
The laboratory shall report as negative all specimens which are negative on the initial test or negative on the confirmatory test. Only specimens confirmed positive shall be reported positive for a specific drug.
(3) 
The MRO may request from the laboratory and the laboratory shall provide quantitation of test results. The MRO shall report whether the test is positive or negative and may report the drug(s) for which there was a positive test, but shall not disclose the quantitation of test results to the employer. The MRO may reveal the quantitation of a positive test result to the employer, employee or decision maker in a lawsuit, grievance or other proceeding initiated by or on behalf of the employee or raising from a verified positive drug test.
(4) 
The laboratory may transmit results to the MRO by various electronic means (e.g., teleprinter, facsimile or computer) in a manner designed to ensure confidentiality of the information. Results may not be provided verbally by telephone. The laboratory and employer must ensure the security of the data transmission and limit access to any data transmission, storage and retrieval system.
(5) 
The laboratory shall send only to the MRO the original or a certified true copy of the drug testing custody and control form (Copy 1), which, in the case of the report positive for drug use, shall be signed (after the required certification block) by the individual responsible for day-to-day management of the drug testing laboratory or the individual responsible for attesting to the validity of the test reports, and attached to which shall be a copy of the test report.
(6) 
The laboratory shall provide to the employer official responsible for coordination of the drug testing program a monthly statistical summary of urinalysis testing of the employer's employees and shall not include in the summary any personal identifying information. Initial and confirmation data shall be included from test results within that month. Normally this summary shall be forwarded by registered or certified mail not more than 14 calendar days after the end of the month covered by the summary. The summary shall contain the following information:
(a) 
Number of specimens received for testing.
(b) 
Number of specimens confirmed positive for:
[1] 
Marijuana metabolites.
[2] 
Cocaine metabolites.
[3] 
Opiates.
[4] 
Phencyclidine.
[5] 
Amphetamines.
(c) 
Number of specimens for which a test was not performed.
(7) 
Quarterly reports shall not include data from which it is reasonably likely that information about individuals' tests can be readily inferred. If necessary, in order to prevent the disclosure of such data, the laboratory shall not send a report until data are sufficiently aggregated to make such an inference unlikely. In any quarter in which a report is withheld for this reason, the laboratory will so inform the employer in writing.
(8) 
The laboratory shall make available copies of all analytical results for employer drug testing programs when requested by DOT with regulatory authority over the employer.
(9) 
Unless otherwise instructed by the employer in writing, all records pertaining to a given urine specimen shall be retained by the drug testing laboratory for a minimum of two years.
C. 
Long-term storage. Long-term frozen storage (-20º C. or less) ensures that positive urine specimens will be available for any necessary retest during administrative or disciplinary proceedings. Drug testing laboratories shall retain and place in properly secure long-term frozen storage for a minimum of one year all specimens confirmed positive, in their original labeled specimen bottles. Within this one-year period, an employer (or other person designated in a DOT agency regulation) may request the laboratory to retain the specimen for an additional period of time, but if no such request is received the laboratory may discard the specimen after the end of one year, except that the laboratory shall be required to maintain any specimens known to be under legal challenge for an indefinite period.
D. 
Retesting specimens. Because some analytes deteriorate or are lost during freezing and/or storage, quantitation for a retest is not subject to a specific cutoff requirement but must provide data sufficient to confirm the presence of the drug or metabolite.
E. 
Subcontracting. Drug testing laboratories shall not subcontract and shall perform all work with their own personnel and equipment. The laboratory must be capable of performing testing for the five classes of drugs (marijuana, cocaine, opiates, phencyclidine and amphetamines) using the initial immunoassay and confirmatory GC/MS methods specified in this appendix. This paragraph does not prohibit subcontracting of laboratory analysis if specimens are sent directly from the collection site to the subcontractor, the subcontractor is a laboratory certified by DHHS as required under this appendix, and the subcontractor is responsible to the employer for compliance with this appendix and applicable DOT regulations as if it were the prime contractor.
F. 
Inspections. DOT, any company utilizing the laboratory, DHHS, or any organization performing laboratory certification on behalf of DHHS reserves the right to inspect the laboratory at any time. Employer contracts with laboratories for drug testing, as well as contracts for collection site services, shall permit the employer and the DOT of jurisdiction (directly or through an agency) to conduct unannounced inspections.
G. 
Documentation. The drug testing laboratories shall maintain and make available for at least two years documentation of all aspects of the testing process. This two-year period may be extended upon written notification by DOT or by a company for which laboratory services are being provided. The required documentation shall include personnel files on all individuals authorized to have access to specimens, chain-of-custody documents, quality assurance/quality control records, procedure manuals, all test data (including calibration curves and any calculations used in determining test results), reports, records on performance testing, performance on certification inspections and hard copies of computer-generated data. The laboratory shall maintain documents for any specimen known to be under legal challenge for an indefinite period.
H. 
Protection of employee records.
(1) 
Employer contracts with laboratories shall require that the laboratory maintain employee test records in confidence, as provided in DOT regulations.
(2) 
The contracts shall provide that the laboratory shall disclose information related to a positive drug test of an individual to the individual, the employer, or the decision maker in a lawsuit, grievance or other proceeding initiated by or on behalf of the individual and arising from a certified positive drug test.