January 2010 Articles

Transcription

1 January 2010 Articles Federal Ban on Texting for Commercial Truck Drivers U.S Transportation Secretary Ray LaHood today announced federal guidance to expressly prohibit texting by drivers of commercial vehicles such as large trucks and buses. The prohibition is effective immediately and is the latest in a series of actions taken by the Department to combat distracted driving since the Secretary convened a national summit on the issue last September. "We want the drivers of big rigs and buses and those who share the roads with them to be safe," said Secretary LaHood. "This is an important safety step and we will be taking more to eliminate the threat of distracted driving." The action is the result of the Department's interpretation of standing rules. Truck and bus drivers who text while driving commercial vehicles may be subject to civil or criminal penalties of up to $2,750. "Our regulations will help prevent unsafe activity within the cab," said Anne Ferro, Administrator for the Federal Motor Carrier Safety Administration (FMCSA). "We want to make it crystal clear to operators and their employers that texting while driving is the type of unsafe activity that these regulations are intended to prohibit." FMCSA research shows that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting. At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road. Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers. Because of the safety risks associated with the use of electronic devices while driving, FMCSA is also working on additional regulatory measures that will be announced in the coming months. During the September 2009 Distracted Driving Summit, the Secretary announced the Department's plan to pursue this regulatory action, as well as rulemakings to reduce the risks posed by distracted driving. President Obama also signed an Executive Order directing federal employees not to engage in text messaging while driving government-owned vehicles or with governmentowned equipment. Federal employees were required to comply with the ban starting on December 30, The regulatory guidance on today's announcement will be on public display in the Federal Register January 26 and will appear in print in the Federal Register on January 27. The public can follow the progress of the U.S. Department of Transportation in working to combat distracted driving Source: U.S. Department of Transportation Decision Making During A Urine Drug Screen Collection There are several situations that can take place during a Federal drug screen specimen collection. Sometimes during a drug screen collection it is necessary for a collector to call the company Designated Employer Representative (DER) and notify them of a problem or a situation. After receiving the call the DER,

2 not fully knowing the Federal Regulations, will advise the collector to let the employee or applicant leave the collection facility and report back at another day or time to attempt another drug screen specimen collection. This is not following the regulations. As the DER you must be informed of the regulation in order to be able to advise your employee and/or applicant correctly. When a donor cannot provide enough of a specimen, if specimen shows signs of tampering, if the donor provides a specimen without a temperature within range, or if the donor cannot provide a specimen at all, the collector may make several attempts to receive an acceptable specimen from the donor and it may be observed. The donor may be detained up to three (3) hours by the collector. At the end of three hours and if the donor did not provide a specimen this would be considered a "Shy Bladder". At this point the collector must notify the DER and the DER must refer the donor to a physician for a medical evaluation. The evaluation must be performed within 5 business days, and then reviewed by the Medical Review Officer. The Medical Review Office will determine if there is a legitimate permanent medical reason for the "Shy Bladder" or if it is a "Refusal to Test". However, if the donor refuses to provide a second specimen or leaves the collection site before the collection process is complete, this is also considered a "Refusal to Test". At this point, the donor should be informed of the consequences of his/her actions by the collector and the DER must also be notified. Note that this applies to pre-employment collections also. I have copied the section of the regulations (CFR 49 Part 40) which apply for your review or future reference: What does the collector check for when the employee presents a specimen? As a collector, you must check the following when the employee gives the collection container to you: (a) Sufficiency of specimen. You must check to ensure that the specimen contains at least 45 ml of urine. (a)(1) If it does not, you must follow "shy bladder" procedures (see (b)). (a)(2) When you follow "shy bladder" procedures, you must discard the original specimen, unless another problem (i.e., temperature out of range, signs of tampering) also exists. (a)(3) You are never permitted to combine urine collected from separate voids to create a specimen. (a)(4) You must discard any excess urine. (b) Temperature. You must check the temperature of the specimen no later than four minutes after the employee has given you the specimen. (b)(1) The acceptable temperature range is deg.c/ deg.f. (b)(2) You must determine the temperature of the specimen by reading the temperature strip attached to the collection container. (b)(3) If the specimen temperature is within the acceptable range, you must mark the "Yes" box on the CCF (Step 2).

3 (b)(4) If the specimen temperature is outside the acceptable range, you must mark the "No" box and enter in the "Remarks" line (Step 2) your findings about the temperature. (b)(5) If the specimen temperature is outside the acceptable range, you must immediately conduct a new collection using direct observation procedures (see 40.67). (b)(6) In a case where a specimen is collected under direct observation because of the temperature being out of range, you must process both the original specimen and the specimen collected using direct observation and send the two sets of specimens to the laboratory. This is true even in a case in which the original specimen has insufficient volume but the temperature is out of range. You must also, as soon as possible, inform the DER and collection site supervisor that a collection took place under direct observation and the reason for doing so. (b)(7) In a case where the employee refuses to provide another specimen (see (a)(3)) or refuses to provide another specimen under direct observation (see (a)(4)), you must notify the DER. As soon as you have notified the DER, you must discard any specimen the employee has provided previously during the collection procedure. (c) Signs of tampering. You must inspect the specimen for unusual color, presence of foreign objects or material, or other signs of tampering (e.g., if you notice any unusual odor). (c)(1) If it is apparent from this inspection that the employee has tampered with the specimen (e.g., blue dye in the specimen, excessive foaming when shaken, smell of bleach), you must immediately conduct a new collection using direct observation procedures (see 40.67). (c)(2) In a case where a specimen is collected under direct observation because of showing signs of tampering, you must process both the original specimen and the specimen collected using direct observation and send the two sets of specimens to the laboratory. This is true even in a case in which the original specimen has insufficient volume but it shows signs of tampering. You must also, as soon as possible, inform the DER and collection site supervisor that a collection took place under direct observation and the reason for doing so. (c)(3) In a case where the employee refuses to provide a specimen under direct observation (see (a)(4)), you must discard any specimen the employee provided previously during the collection procedure. Then you must notify the DER as soon as practicable. If you receive a call from a collector during a drug screen collection and you need advice regarding a situation please do not hesitate to call me with your questions. These questions do need to be answered right away due to the importance of a correct decision according to the Federal Regulations. by Rebecca Ekorn Sr. Compliance Administrator, CDTA

4 Regulations As They Apply to CDL Drivers This article summarizes the regulations as they apply to commercial driver licensed (CDL) drivers, and is intended to better educate drivers about their rights and obligations as participants in a DOT drug & alcohol testing program. Who Must Be Tested? All CDL drivers operating commercial motor vehicles (CMVs) (greater than 26,000 CGVWR, or transporting more than 16 passengers, or placarded hazardous materials) on the public roadways must be DOT drug and alcohol tested. This means any driver required to possess a CDL, including those employed by Federal, State, and local government agencies, owner operators, and equivalently licensed drivers from foreign countries. Part-time drivers must also be included in an employer's drug testing program. Drivers who only operate CMVs on private property not open to the public do not require testing. Required Tests CDL drivers are subject to each of the following types of tests: Pre-Employment - A new driver must be drug tested with a negative result before an employer can permit him to operate a CMV on a public road. Alcohol testing is permitted only if it applies to all CDL drivers. If a driver is removed from a random testing pool for more than 30-days, he must again be pre- employment tested. Post-Accident - CDL drivers must be drug and alcohol tested whenever they are involved in a fatal accident, or receive a traffic citation resulting from an injury or vehicle-disabling accident. The alcohol test must occur within 8 hours, and the drug test must occur within 32 hours. Random Testing - CDL drivers are subject to unannounced random testing throughout the year. A driver may be directed to take a drug test even when at home in an off-duty status. Random alcohol tests occur while on duty or immediately before or after. Once notified to report for random testing drivers must immediately report to the testing location. Delaying your arrival can be considered a refusal. Never Refuse to Test. Driver refusals are equivalent to testing "positive" and are defined in 49 CFR Reasonable Suspicion - DOT-trained supervisors can direct you to be drug or alcohol tested whenever you exhibit signs of drug or alcohol abuse. The decision must be based on observations concerning the appearance, behavior, speech, or body odors of the driver. Return-to-Duty - Return-to-duty tests require "direct observation" as prescribed in 49 CFR (a)(9). They are only required after an employee has completed the "return-to- duty" process, and wants to return to work in a safety sensitive function (i.e., driving CMVs). They basically replace the preemployment test for "positive" tested and "refusal" drivers. Follow-Up - Follow-up drug and alcohol tests are required as prescribed tests least six unannounced by the substance abuse professional (SAP) who signs the return-to-duty report. They consist of a minimum of at directly observed conducted during the first 12 months following the return- to-duty test. The SAP can prescribe follow-up testing for a maximum of 5 years for drivers who have tested "positive" or "refused to test." Follow-up testing is in addition to any selections for random testing.

5 Testing Procedures Once notified to report for testing, a CDL driver must report to the collection site immediately. (To familiarize yourself with the collection process and any of the other aspects of the DOT drug and alcohol testing program, please refer to: The DOT drug testing program tests for 5-panels of controlled substances covering the following classes - Marijuana, Cocaine, Opiates (Opium and codeine derivatives), Amphetamines and Methamphetamines, and Phencyclidine (PCP). Once tested, the laboratory will report the analysis to a medical review officer (MRO). If the analysis indicates a positive result, the MRO will contact the driver to determine whether there are circumstances that would explain the positive result. If there are none, the MRO will report a positive result to the employer. Source: Department of Transportation, Federal Motor Carrier Safety Administration *The DOT drug and alcohol testing regulations for commercial driver licensed (CDL) employees can be found at 49 CFR Part 382, and 49 CFR Part 40. These regulations can be found at: Conducting Background Investigations and Reference Checks Background investigations and reference checks are employers' principal means of securing information about potential hires from sources other than the individuals themselves. Both approaches may involve verifying information initially provided by applicants and eliciting information they have not provided. Overview Background investigations and reference checks are two different approaches to screening applicants for job openings. A background investigation generally involves determining whether an applicant may be unqualified for a position due to a record of criminal conviction, motor vehicle violations, poor credit history, or misrepresentation regarding education or work history. A reference check generally involves contacting applicants' former employers, supervisors, co-workers, educators and athletic coaches to verify previous employment and to obtain information about the individual's knowledge, skills, abilities and character. There are numerous reasons employers should perform at least some level of background investigation or reference check with respect to every new hire. The extent of the inquiry will depend upon the nature of the business, the job at issue and perceptions of risk. Human resource professionals face many practical challenges and potential legal pitfalls in conducting background investigations and reference checks, regardless of whether they are done in-house or by an outside vendor. The challenges vary depending on the type and depth of inquiry, as well as the federal, state and international laws that may apply. Human resource professionals responsible for pre-employment screening have access to various tools to help them research and select background-screening partners. The industry group National Association of Professional Background

6 Screeners (NAPBS) is developing a six-pronged certification and accreditation process for its member firms. There are many reasons employers should conduct an appropriate level of screening for prospective employees through a background investigation, a reference check or both. Avoiding injury. A major reason to conduct background and reference checks is to avoid harm or legal liability of various types to the employer or to othersfor example, harm to: The employer's business through embezzlement or public disgrace Other employees by sexual harassment or workplace violence. The organization's customers by, for example, sexual assault on business premises. The public by negligent driving. Litigation defense. Defense of legal claims-negligent hiring and retention, for example-is a compelling reason to conduct in-depth criminal records searches of job applicants. A multilevel jurisdictional criminal records search can be strong evidence that the employer exercised due care in hiring. Maximize productivity. Hire the best and reject the rest, the saying goes. Typically, past performance is a strong indicator of future performance and can reveal an individual's professionalism, productivity, job skills and interpersonal communication abilities. A background check helps to distinguish between a true high flier and a mere poser. Nearly half of more than 3,100 hiring managers report catching a job candidate lying on a résumé, according to a CareerBuilder.com survey. Trends A variety of developments and trends in society at large are reflected in trends associated with background screening and reference checks. Frequency of use There is a trend toward greater use of background investigations and reference checks in employment. This trend is driven by several factors, including: Security issues in a "post-9/11 world." New legislation, particularly in the area of immigration law enforcement. Technological advances that make background investigations faster and more economical. Increased awareness of the various risks of failure to conduct adequate background checks. A rise in the willingness of applicants to misrepresent their credentials. Types of findings According to a CareerBuilder.com survey, industries that appear to encounter fraudulent résumés most often are: Hospitality (60%) Transportation/utilities (59) Information technology (57%) Government had the lowest incidence, at 45%.

7 Red flags identifying criminal records also grew in the manufacturing sector from 11.6% in 2006 to 12.6% in 2007, and in the food services sector from 12.1% in 2006 to 13.4% in Education (3.7%) had the lowest red-flag ratio. *This article does not address post-employment medical examinations, drug testing or genetic testing, nor does it deal with an organization's concerns about responding to others' requests for background information or references. Source: Society for Human Resource Management COBRA Subsidy Extension Notice The COBRA subsidy extension notice requirements enacted in December 2009 as part of the Department of Defense Appropriations Act (the DOD Act) can be "confusing" and result in some "over-papering," Kevin Knopf, an attorneyadviser in the Treasury Department's Office of Benefits Tax Counsel, said during a Jan. 22, 2010, U.S. Department of Labor webcast. But "the idea is to make sure that everyone who has some right to a premium reduction or a subsidy gets notice of it before any of their rights run out," he explained, walking through the notice requirements. Updated General ARRA Notice The original American Recovery and Reinvestment Act (ARRA) "was modified so that everyone who has a qualifying event between Sept. 1, 2008, through Feb. 28, 2010, is supposed to receive some kind of notice," he reminded. The updated general ARRA notice in theory goes to everyone, but he noted there are some exceptions. First, he emphasized that in revising the model notices "we did not include anything that allows individuals to make a second election. It only allows people to make retroactive payments while they are in a transition period." Knopf elaborated that "if you don't exhaust the subsidy that was originally available, you don't have any rights under the DOD Act provisions." There were no changes to the COBRA general notice. "I know it's a little confusing," he said, noting the differences between the COBRA general notice and ARRA general notice. The COBRA general notice is to give a heads up about COBRA rights. "ARRA general notice is a replacement COBRA election notice and has all of the information and more." The ARRA general notice is provided to all qualified beneficiaries. "There is a little bit of over-papering here if you have a qualifying event such as a divorce," he acknowledged. "But the law wants everyone who has a qualifying event to get this general notice." If someone already has received the COBRA election notice that has ARRA information in it, they probably don't need the updated general notice, he added. "Certain people may have to get it, but most people who have gotten an ARRA election or general notice with the original information are probably OK," he remarked.

8 However, he cautioned that "an important group of people probably-almost certainly-are going to need to get this full, updated ARRA election notice." He said that people who had a qualifying event in December who received the original ARRA general notice probably were told in that notice that COBRA did not begin until Jan. 1, 2010, and that they then had no right to any subsidies. "Those folks need to get this full updated ARRA general notice-either our model or whatever the plan uses with all of the updated information" and they need "the full 60 days to make a decision on whether or not to elect COBRA," he said. Premium Assistance Notice The premium assistance extension notice is shorter than the general ARRA notice and is "akin to the abbreviated general notice that we issued" after ARRA was enacted, Knopf explained. "What this is designed to do is give people who have already received their election notice information about the extension that the DOD Act added to COBRA," he said. "This is a change from the nine months to the 15 months." So who gets this notice? Knopf said the premium assistance extension notice "must go to anyone who is in transition and has to go within 60 days of the first day of the transition." He said that this notice needs to go to individuals who were assistance eligible as of Oct. 31, 2009, "and all individuals who have experienced a qualifying event on or after Oct. 31" when the qualifying event was a termination of employment. However, some of those individuals already got an updated general notice and they don't need the premium assistance extension notice, he added. The third updated model notice, the updated alternative notice, can be used in states where there is a state law that requires continuation coverage for plans and employers that are not subject to federal law. However, Knopf cautioned that this model "is probably the most stripped down model that we have created," and cautioned that state mini-cobra requirements vary, so employers using this notice "should conform to the state law." Notice Examples Knopf walked through several examples of when to send the updated ARRA general notice and when to send the premium assistance extension notice. Suppose someone has an involuntary termination of employment and was assistance eligible as of Oct. 31, The person was not eligible for any other health care, was sent the original ARRA general notice on Nov. 14, 2009, and elected subsidized COBRA coverage. Knopf said this person would have to now be sent the extension notice. What if someone was divorced in 2009 and was sent an ARRA general notice, and the individual elected COBRA and is still on it? That person does not get any new notice, Knopf said. The person did not have a qualifying event that was the termination of employment. The person already received their election notice in a timely manner. And the person is not getting any subsidies, "so that person is fine." Suppose instead a participant had a qualifying event on Sept. 15, The plan sent the qualified beneficiary the ARRA general notice and the qualified beneficiary did not elect COBRA. What additional notice should be sent? None, Knopf said. The person is not a qualified beneficiary because the person did not elect COBRA.

9 But what if a plan participant experienced a qualifying event that was an involuntary termination on Dec. 8, 2009? The plan sent the qualified beneficiary the original ARRA general notice on Dec. 20, What additional notice should be sent? Knopf said that if the person did not lose coverage until Jan. 1, 2010, or his or her COBRA coverage did not begin until Jan. 1, 2010, that person would "need to get a new updated ARRA general notice with the new 60-day election clock," so the person can make an informed decision. Source: Society for Human Resource Management DOT Agency Information Operating Administrations' Drug and Alcohol Program Information As a result of the Omnibus Transportation Employee Testing Act of 1991, the following DOT Agencies established drug and alcohol testing regulations to ensure that aircraft, trains, trucks, and buses were operated in a safe and responsible manner. The following chart lists each DOT Agency's drug and alcohol testing related information: DOT Agency Program Manager Drug & Alcohol Testing Regulations Federal Aviation Admin (FAA) Federal Motor Carrier Safety Admin (FMCSA) Federal Railroad Admin (FRA) Federal Transit Admin (FTA) Rafael Ramos Drug Abatement Division Room 803 (AAM-800) Independence Ave, SW Washington DC Phone: Fax: drugabatement@faa.gov Jim Keenan Enforcement & Compliance Office Room W New Jersey Ave., SE Washington DC Phone: Fax: jim.keenan@dot.gov For employers and employees in the aviation industry 14 CFR Part 120 For carriers and commercial driver's license holders (CDL) 49 CFR Part 382 Lamar Allen Office of Safety For 1200 New Jersey Avenue, SE employers W Washington DC and Phone: employees Fax: working in Lamar.allen@dot.gov the railroad industry 49 CFR Part 219 Jerry Powers Office of Safety & Security TPM-30, Room E New Jersey Ave., SE Washington DC Phone: Fax: For employers and employees working in the mass 2010 Random Drug Testing Rate 2010 Random Alcohol Testing Rate 25% 10% 50% 10% 25% 10% 25% 10%

10 Pipeline & Hazardous Materials Safety Administration (PHMSA) United States Coast Guard (USCG) Stan Kastanas, Director Office of Substance Abuse Policy, Investigations, & Compliance PHMSA Pipeline Safety National Programs, Washington DC Phone: Mailing Address: Call or for information Fax: - Call or e- mail for information Stanley.Kastanas@dot.gov Robert C. Schoening Drug and Alcohol Program Manager Attn: Commandant (CG-545) US Coast Guard nd St. SW, Stop 7581 Washington DC, Phone: Fax: Robert.C.Schoening@uscg.mil transit industry 49 CFR Part 655 For operators and employees working in the pipeline industry 49 CFR Part 199 For employer and employees operating commercial vessels 46 CFR Part CFR Part 4 25% N/A