This session, we're going to cover the Department of Transportation alcohol testing rules. And it's a little bit different, if you will, from the medical review officer perspective, because the MRO does not review, interpret, or report alcohol test results. But because alcohol testing is a significant part of the Department of Transportation's regulations, it is a part of the competencies that you, as a medical review officer, have to have in terms of the subject matter. So the Department of Transportation was mandated to put in place alcohol testing by that OTETA Act that we've talked about before, the Omnibus Transportation Employee Testing Act, which was signed into law in late 1991. The department then had to develop alcohol testing procedures and everything with regard to how alcohol testing would be implemented in the transportation industries. And so they issued the alcohol misuse prevention rules then in late 1994, and alcohol testing in the DOT agency programs began in January of 95. Only the FAA, the Federal Motor Carrier Safety Administration, the FRA, the Railroad Administration, and the Transit Administration were mandated by the OTETA legislation to do alcohol testing. That's probably because of the structure of how the legislation was put together in that the oil and gas pipeline industries and the maritime industries don't fall under the same committee structure. So what ended up happening was that the PHMSA, the Pipeline Hazardous Materials Safety Administration, issued alcohol testing rules also in 1995, but they were not mandated by OTETA to do so, and therefore they did not require or authorize random alcohol testing, whereas the four DOT rules that were promulgated because of the OTETA language did have to have random alcohol testing. Prohibited alcohol use is defined in the rules, and we'll talk a little bit about that, but it's important to know that unlike drunk driving laws, for example, the alcohol testing regulations are not based on impairment or on intoxication standards. And so we'll talk about what they in fact are based on with regard to prohibited alcohol use. So here we go. The prohibited alcohol conduct is that a person cannot perform alcohol, excuse me, perform safety-sensitive functions if they have an indicated alcohol concentration of 0.04 or greater. So 0.04 becomes the cutoff level, if you will, in distinguishing between what is a positive test or violation of the rule. They cannot perform safety-sensitive functions while consuming or using alcohol. So even if they are simply sipping on alcohol but not ingesting enough to get to 0.04, they cannot do that while on duty performing safety-sensitive work, kind of makes sense really. And then there's also what's called a pre-duty abstinence period or requirement as a part of the DOT alcohol testing regulations, and that is that anyone who is performing safety-sensitive occupations or work under the DOT rules cannot consume alcohol within four hours of reporting for duty. Now for flight crew, that pre-duty abstinence period when you cannot consume any alcohol is lengthened to eight hours prior to coming on duty. And that's because there was an existing FAA rule for many, many years that prohibited flight crew, specifically cockpit crew, meaning pilots, first officers, navigators, that they had to refrain from drinking any alcohol for eight hours prior to assuming flight duty. Additionally, prohibited alcohol conduct under the DOT rules includes using alcohol after an accident, even if the person is off duty and no longer operating or driving a vehicle or no longer performing safety-sensitive work. They cannot consume alcohol until the post-accident alcohol test has been conducted. That again is so that we don't confound, if you will, the post-accident alcohol test by claims that, well, I didn't have any alcohol in my system when the crash occurred, but then I was so nervous and so upset, and while waiting for everything to fall into place, I had a couple of beers or I had a drink. And so that's why my post-accident alcohol test is positive. So a person cannot use alcohol following a DOT reportable accident until the alcohol test is conducted or until eight hours have lapsed. And the eight hours is the time period that an employer has following a DOT reportable accident to accomplish the required post-accident alcohol testing. And then also defined as prohibited alcohol conduct is refusing to submit to a required alcohol test or otherwise causing the test not to be able to be completed and conducted in accordance with the procedures. So when are alcohol tests done under the DOT rules? Well, they're actually done in all of the same circumstances that a drug test is done. So there is post-accident alcohol testing. There is random alcohol testing, except for the oil and gas pipeline industry and the maritime industry. So the US Coast Guard regulations and the PHMSA regulation do not require or authorize random alcohol testing. Reasonable suspicion alcohol testing is authorized and required when the reasonable suspicion criteria are met under all six of the DOT agency rules. Return to duty and follow-up alcohol testing is also a part of all of the DOT agency rules. And pre-employment alcohol testing is authorized by the DOT regulations, but not required. And one difference, if you will, if an employer decides to do pre-employment alcohol testing, they must do so after a conditional offer of employment has been made. In other words, they cannot test applicants on a DOT pre-employment alcohol test. It has to be once the candidate has been offered the position. Then they can do a, quote, pre-employment alcohol test. Let's take a look at random alcohol testing. It is an adjustable annual rate that the employers are required to meet in terms of fulfilling their obligation to conduct random alcohol testing. And that rate is either 10% of their safety-sensitive workforce, up to 50% of their safety-sensitive workforce in a given calendar year. The annual rate for random testing is based on the violation rate for that industry. So if the positive rate on alcohol tests in the trucking industry for the previous year was 1% or more, then the random testing rate for the following year will be 50% of the workforce to be random alcohol tested in that calendar year. If it's less than a half a percent, then the random testing rate for the following year is 10% annually. Each DOT agency, of course, determines that random rate for its regulated industry or its regulated employers. Random testing, unlike random drug testing, random alcohol testing, unlike random drug testing, must be conducted just before, during, or just after the performance of safety-sensitive duties. Drug testing can be conducted any time the person's on duty. Even if, for example, an oil or gas pipeline worker is on duty, but they're not actively performing any maintenance tasks that day, they may be doing something administrative that is not a safety-sensitive task, they can still be called to do a random drug test. The random alcohol tests can only be done just before they are performing safety-sensitive functions, during the performance, or immediately after. Random testing, of course, like random drug testing, has to be unpredictable and is to be conducted immediately after notification of the employee. The alcohol testing procedures are different than the drug testing procedures. Remember, for DOT drug testing, it is a urine specimen that is used, sent to a laboratory, analyzed based on laboratory procedures for cut-off levels and for a specific panel of drugs. But for alcohol testing, we don't use a urine specimen. We instead, it's a program that is based on breath alcohol testing. Alcohol testing has to be conducted using testing devices that are listed on the ODAFC. Remember, that's the Office of Drug and Alcohol Policy and Compliance of the Department of Transportation on their website. And those devices that can be used for DOT alcohol testing have to have been approved by NHTSA, by the National Highway Traffic Safety Administration. Back when the DOT rules were being promulgated, the alcohol testing rules in 1994, NHTSA put together specifications for alcohol testing devices that they could accurately, reliably, and legally, if you will, detect alcohol at as low as a 0.02 alcohol concentration and certainly at a 0.04 and higher alcohol concentration. The alcohol testing procedures, like the urine specimen testing procedures, include accuracy, reliability, and confidentiality protections. The screening, it is also a two-test process in terms of for a positive result. So the initial test or screening test may be conducted under these DOT rules using an alcohol screening device or an evidential breath testing device. So the devices that are used, it's kind of like in the laboratory. You've got methodology that's used for screening, such as immunoassay, and you've got methodology that is specified for confirmation, which is mass spectrometry or gas chromatography. So for alcohol testing, the screening test would use a device that has been, again, approved by NHTSA for the initial test. The confirmation test, if the screening test shows an alcohol concentration of 0.02 or greater, has to be done using an evidential breath test device, again, one that has been evaluated and meets the technical specifications of NHTSA. So the confirmation evidential breath test has to be completed within 30 minutes of that initial screening test when the initial screening test, whether that's done with a breath test device or a saliva test device, when that result is 0.02 or greater. Blood alcohol testing, by the way, is not authorized under these DOT alcohol testing rules. So even if the screening test is positive using a saliva or breath testing device, you cannot confirm that result with a blood specimen. It must be confirmed with a breath specimen that is analyzed or that is conducted using an evidential breath testing device. So basically, a lot of these procedures were modeled after what was used in DWI enforcement or DUI enforcement, which often used breath testing devices that were evidential in nature that could be entered into evidence in court that a person had exceeded the per se level of alcohol in their system while operating a vehicle. So I mentioned earlier that 0.04 was the cutoff level for a violation or for a positive alcohol test, and that's true. However, the department did put in place some actions that needed to be taken if a person had a detectable level or detectable presence of alcohol below 0.04 but above the cutoff level for what is considered negative. So the negative cutoff level is 0.020. So any saliva specimen or breath specimen that has less than 0.02 grams of alcohol per deciliter equivalent is considered negative. But if it is 0.02 up to 0.039, then that is a result that requires the individual to be removed from safety sensitive functions. It's not considered a quote positive test or a violation of the DOT rules, but it does require what we euphemistically refer to as a safety suspension. Now each of the DOT regulations specifies what that suspension or what that temporary removal from duty looks like. So under the FMCSA regulation for commercial drivers, the driver who has an alcohol result of 0.02 to 0.039 has to be removed from driving duties for at least 24 hours. For the Federal Railroad Administration, the removal from duty for a 0.02 to 0.039 alcohol result is for at least 8 hours or until the next assigned duty shift, whichever is greater. For the other DOT regulations or modal rules, the FTA, the FAA, and the Pipeline Hazardous Material Safety Administration, if a person tests at 0.02 to 0.039, they would be removed from duty and then the employer has the option to test them again, say 15 minutes later or a half hour later, and if their result is less than 0.02, that is negative, they can resume duty. Or if they don't want to test them again after a 0.02 to 0.039 result, then they must wait 8 hours before they can resume their safety sensitive duties. It is my experience that almost all of the employers in the transit industry, the oil and gas pipeline industry, and certainly in the FAA industry, they don't do a second test 15 minutes later or a third test a half hour later. They simply remove the individual from safety sensitive functions for the 8-hour suspension period. A test result of 0.02 to 0.039 is not a violation, it is not a positive test, and therefore it does not trigger the substance abuse professional evaluation that we talked about in relationship to a drug test violation, and it does not trigger the return to duty process. Many of us thought that it should, that a person that tests, again remember these tests are being done when the person is on duty when they're performing safety sensitive functions. And we felt that that was indicative enough that they should at least go through a use disorder for problems relative to alcohol misuse. But that was not the decision of the attorneys, the department of justice who had to sign off on our regulation. So for the 0.02 to 0.039, it's simply they're out of service or out off of duty for the prescribed period of time based on the DOT agency rule. And then they simply return to work after that 24 hour period, eight hour period, et cetera, without requirement for SAPIVAL or for the return to duty process. So employees who do engage in prohibited conduct, alcohol conduct, and remember that's kind of a 0.04 greater alcohol test that's consuming alcohol within four hours of reporting for duty. That's refusing to take an alcohol test that is drinking on duty, regardless of what the test result is. Those are considered having engaged in prohibited conduct. They have to be immediately removed from safety sensitive functions, and they have to be referred to a SAP for the evaluation assessment and return to duty process. So such employees who have engaged in prohibited alcohol conduct cannot return to work until they have been evaluated by the SAP, complied with the recommended treatment, tested negative on a return to duty alcohol test, and have a follow-up testing program that has been established by the substance abuse professional. Records on testing on alcohol testing, supervisor education for reasonable suspicion, alcohol, drug and alcohol testing, SAP evaluations, certainly the breath alcohol technician and evidential breath testing technicians qualifications, all of that kind of thing must be maintained. In addition, most employers are required to provide an annual statistical report of their employees alcohol testing, whether that is their random alcohol tests or post-accident alcohol tests, et cetera. And in some industries such as the FAA, every employer who is subject to the rules has to provide an annual report. In other industries such as the trucking industry, FMCSA does a stratified sampling of employers every year. And so then a percentage of the thousands of employers who are subject to FMCSA, drug and alcohol testing, provide an annual statistical report on their testing activity to the FMCSA. There of course are confidentiality requirements for alcohol test results, just like there are for DOT drug test results. Employees have to be provided information about the alcohol misuse policy, the prohibited conduct, how the testing program is going to be implemented and the procedures that will be used. Supervisors have to have one hour of training on the signs and symptoms of alcohol use misuse that would trigger a reasonable suspicion alcohol testing. And employees who engaged in prohibited conduct that must be advised of the SAP evaluation and treatment resources as a part of the alcohol testing regulations. Let's take a look at some of the differences among the six DOT agency alcohol misuse prevention rules. FAA, remember, just like with drug testing, they have a requirement that the training for supervisors on the signs and symptoms of alcohol use or misuse, that training has to be recurrent. It's not a one and done kind of thing. It has to be either annually or biannually, depending on what the FAA has approved for that employer. There is a bar or a ban for second violations that is permanent for that occupation. So an aircraft mechanic who has a second positive alcohol test, even if it's for a different employer, then they would not be permitted to go through rehabilitation again and serve as an aviation mechanic. And pilot certificate actions are taken for alcohol violations, just like they are taken for positive drug tests or refusals to test under the FAA drug testing program. For the Federal Motor Carrier Safety Administration, I mentioned that they have a 24 hour out of service, not driving suspension for an alcohol result of 0.02 to 0.039. And just like for drug testing, the employer who has a driver that is in a DOT reportable crash or accident, if the police administer an alcohol test, whether that's a breath test or a blood test or whatever, the employer can use the results of that test in lieu of conducting an employer DOT alcohol test. For the FRA, the Federal Railroad Administration does require that each railroad submit a very detailed random testing plan that will be approved by the FRA. And that random testing plan has to include how they will do random alcohol testing as well as random drug testing. There are locomotive engineer certificate actions for an alcohol rule violation. And post-accident blood testing is a part of the FRA accident investigation process. Remember I talked about, when we talked about the DOT drug roles, that the FRA is the one that has a separate post-accident investigation program that involves taking blood samples, urine samples, even tissue samples in the case of a post-mortem circumstance, and then also testing for a wide variety, a wider variety of drugs and substances. And so for the FRA post-accident program, the blood test, the blood sample that is taken as part of that accident investigation process is also tested for alcohol in addition to a variety of other substances that may have contributed to or impacted the crash or the accident. For the FRA, there is a nine month suspension from safety sensitive duties for refusing to take an alcohol test, just like that same suspension, nine month suspension is imposed if a railroad employee refuses to take an FRA mandated drug test. For the Federal Transit Administration, this is parallel to their drug testing regulations so that the employers must self-certify, the transit employers, transit agencies, transit authorities have to self-certify compliance with the part 655 alcohol misuse prevention provisions of the FTA regulation. And obviously mechanics and dispatchers of any type of revenue service vehicle are subject to all of the provisions of the FTA alcohol testing regulation. For PHMSA and Coast Guard, they are outliers, if you will, in terms of the alcohol testing program in that neither one of them authorize or require random alcohol testing. And for the oil and gas pipeline, the employer does have to have a very specific written policy that puts out all of the terms of alcohol testing and make certain that the employee understands when they are subject to alcohol testing and what the consequences of engaging in prohibited alcohol use are. The Coast Guard really didn't issue any alcohol testing regulations in 1994. So they did not amend their drug testing regulation in any way to include alcohol testing. Since 1994, there has been language added to Coast Guard safety regulations that do include alcohol testing in circumstances where there is a serious Marine incident. However, again, because of the difficulty with being able to maintain and have access to evidential breath testing devices, those serious Marine incident alcohol tests can be done using only a saliva device and or a breath testing device that is not evidential in quality. So there are some lessening of the restrictions for the alcohol testing procedure for the serious Marine incident testing that is a part of the rule now since the early 2000s. Okay, let's talk about some of the terms that are used in the DOT alcohol testing rules and that are used in part 40. Just like we talked about for urine specimen collection procedures, they're in terms of specific subparts of part 40, subpart C, D, E, et cetera. There are also specific subparts in part 40 for the alcohol testing procedures and those are found in subparts L, M, N, O, and P. L, M, N, no, L, M, N, that's correct, the subparts. So the breath alcohol technician is identified in part 40. They do have to have specific training using a DOT model curriculum. They have to conduct mock tests, if you will, using an evidential breath testing device and completing a Department of Transportation alcohol testing form to document the test results. They must take refresher training every five years. They have to undergo error correction training within 30 days of notification that they made a fatal error in conducting a DOT alcohol test. And supervisors of covered employees should not be doing alcohol tests on their own employees, again, for the perceived conflict of interest, et cetera. In addition to breath alcohol technicians, the rule identifies personnel that are called screening test technicians and these individuals can administer only the initial test, not the confirmation test using an evidential breath testing device. They do have some required training and proficiency demonstrations, not as detailed, obviously, as what is required for the breath alcohol technician. And they also have a requirement for refresher and error correction training. Breath alcohol technicians, of course, can serve as screening test technicians using a non-evidential device, an alcohol screening device such as a saliva device or a breath testing device, as long as they, again, have demonstrated their proficiency and the use of that alcohol screening device. So here's what we're talking about in terms of alcohol testing devices. They have all been evaluated based on some technical specifications by the National Highway Traffic Safety Administrations and have been therefore approved as meeting accuracy and reliability standards. They are listed both as a list of alcohol screening devices, saliva and breath, on the ODAPC website, as well as a separate list of evidential breath testing devices, which of course are exactly what they say. They are all breath testing devices. And alcohol screening devices, that list, of course, includes both saliva and breath testing devices. Each of the devices, whether it is an evidential breath testing device or an alcohol screening device, had to submit as part of their approval process to NHTSA a quality assurance plan. And that quality assurance plan includes information about how do you do an accuracy check with the device? What are the tolerance ranges for the reading of the device? What are its maintenance requirements? In the case of disposable devices, saliva devices, for example, and some of the breath devices, they have shelf life and expiration dates. So the quality assurance plan has to include that information and other elements relative to quality control. There is an alcohol testing form. This time it is a form that has been developed by the Department of Transportation, not like the federal urine testing custody and control form, which is developed by the Department of Health and Human Services. This is a form that is used only by, only for Department of Transportation mandated testing. It's not used for any testing that's mandated by the Nuclear Regulatory Commission or by the Department of Health and Human Services for federal employees in federal drug-free workplace programs. So it is a standard DOT form. It is a paper form. Thus far, they have not approved an electronic version allowing electronic signatures. I've been working with a group of folks for the past five years to try to get DOT to move in that direction, but we have not been successful yet. So it is a three-ply paper form. The printed result from the evidential breath testing device must be affixed to each copy of the alcohol testing form for the confirmation result. For the screening result, there is no requirement for there to be a printed result of that test, but for a confirmation test, the evidential breath testing device must be capable of printing the result. And that result tells what time the test was done, what the date of the test, what the result is, the serial number of the device, and all other kinds of things relative to being able to submit that result. Just like a drug test report from the laboratory, that result can be used to document what alcohol content the person had in their bloodstream as measured by an evidential breath test at that time. The signature of the donor or of the subject of the test, the employee, and of the breath alcohol technician are required on the alcohol testing form. The current form was issued, I think, in 2010. There was an update in 2014, but there really has been no substantial changes at all to the form. It's exactly the same as we've been using from the very beginning because there haven't been any significant changes to the DOT alcohol testing procedures in that time. Where can an alcohol test be done? In essentially any location, an office, a worksite, a clinic, whatever, as long as there is visual and auditory privacy for the subject of the test. There's restricted access, so there's not a lot of distraction or other kinds of things to where the testing is taking place. And certainly alcohol testing under the DOT rule can be done at the scene of an accident. So frequently there are breath alcohol technicians who will go to the scene of the accident with the evidential breath testing device and conduct the test there. The evidential breath testing devices that are on the NHTSA approved list are essentially mobile devices. They can be taken from place to place. They are not a piece of laboratory instrument like a mass spectrometer analyzer or machine. So that enables those to be done essentially at the worksite or in the case of an accident at the scene. So now let's go through the procedures for alcohol testing. And so kind of here, unlike with drug testing, remember we had three parts, if you will, of the drug testing procedures. We had the very detailed collection procedures, and then we had the very detailed laboratory, the analysis procedures that Dr. Sample's gone over with us, and then there are the very specific medical review officer procedures for reviewing, interpreting, and verifying and reporting drug test results. But for alcohol testing, that's all wrapped up into one in terms of the actual alcohol testing event. We're not sending a specimen to a laboratory for analysis. We're not having a result communicated to a medical review officer or other person for review, interpretation, verification, or reporting. So let's take a look then at those kind of rolled into one procedure. So using either an evidential breath testing or an alcohol screening device, the technician obtains the breath or the saliva sample. There's no waiting period beforehand. There's no preparation, if you will, of the alcohol testing site because it is an observed test, if you will, being done with the technician present with the subject. There's not a kind of need for the pre-collection processes that we talked about with urine drug testing. So once the sample is obtained, if the result on that device is less than 0.020, then it is a negative test. The result is recorded on the alcohol testing form, and that is the end of the process. If the result on that initial test, that screening test, either using an evidential breath testing device or an alcohol screening device, saliva or breath, if it is 0.02 or greater, then a second test or a confirmation test is required. Now we do have a wait period between the initial test where we have a presumptive indication of alcohol present and when we conduct the confirmation or the second test. So now there is a 15-minute, what is often referred to as a deprivation period. The purpose of this is to ensure that the person does not have any residual mouth alcohol, any alcohol that was in their oral cavity, maybe from using a breath spray just before they had the alcohol test administered, the screening test, or having rinsed their mouth out with mouthwash that contained alcohol, for example, or it could be something like they had a breath mint or a Lister mint tab or something in their mouth just prior to the initial test. So we want to make sure that any alcohol that may have been in the oral cavity has dissipated and is gone, and that's why in the presence of the technician, the employee sits there for 15 minutes and is instructed not to put anything into their mouth, if they have gum or if they have, you know, mint or whatever, they are to remove that from their mouth and wait the 15 minutes for the confirmation test to be administered. So after the 15-minute wait, but before 30 minutes has elapsed from the presumptive positive screening test, then the confirmation testing process begins, is initiated. The first thing that has to be done is that the evidential breath testing device has to conduct what is called an air blank. The air blank is where the device actually, with the mouthpiece inserted, takes a sample of the ambient air and makes sure that it then reads zero, and that's to ensure that there's no alcohol that's present in the chamber or in the device at all, that there's no alcohol in the air, the immediate surroundings where the testing is being done, that could confound the test. Once the air blank is displayed as a reading of 0.00, then the next thing that the device, the evidential breath testing device through its software, displays a sequential test number. So each of those numbers is unique to, it's a sequential test number for that device. So if this device has conducted in the past 167 alcohol tests, then this test that you're doing now would be test number 168, for example. You obtain then the breath sample. If the result on this confirmation breath sample is less than 0.020, it is a negative test regardless of what the screening test was. If the result on the confirmation test administered using an evidential breath testing device is 0.02 to 0.039, then the employee cannot continue to perform safety sensitive functions. If it is 0.04 or greater, they are going to, it is essentially a positive test of violation of the DOT rules. Any result of a 0.020 or greater has to be immediately reported by the alcohol technician to the designated employer representative. Or in the case of a independent owner operator, has to be reported to the consortium or the third party administrator that they use for their drug and alcohol testing program. The reason that that is the case, again, remember nothing is going to be coming from the laboratory, nothing is going to be coming from a medical review officer. So the technician is to report that result immediately to the employer so the employer can take the appropriate action. 0.02 to 0.039, removal from duty for a specified amount of time, 0.04 or greater, a positive test, removal from duty, and starting the SAP and return to duty process. There are three copies of the printed result, and those are affixed to the three plies of the alcohol testing form. The original is transmitted by the breath alcohol technician to the employer, a copy is maintained for the breath alcohol technician's records, and then the employee is provided a copy. I mentioned earlier, but maybe didn't talk about it in terms of the process, the employee signs the alcohol testing form prior to providing the initial sample. So the form, they don't do it after they have given the test like they do in drug testing. So the employee has to sign up front on the alcohol testing form, and then the technician signs at the conclusion of either the screening test if it's less than 0.02, or at the conclusion of the confirmation test with regard to that result. There is a place on the form for the employee to be asked to sign if their confirmation result is 0.02 or greater, and that is simply asking the employee to acknowledge that they do have detectable presence of alcohol in their specimen, they are not to operate a vehicle of any kind, and that they are going to be removed from safety sensitive duties. If the employee refuses to sign that paragraph following a 0.02 confirmation test, that's fine, it's not a refusal to test, the breath alcohol technician simply notes that on the form. Okay, there are provisions in the rule, and I'm not going to spend a lot of time on them because you as a medical review officer are not directly involved in these as you are in the shy bladder procedures for the inability to produce a sufficient urine specimen. But if the donor cannot provide a saliva specimen because they have dry mouth, and that can be from medications, it can be from who knows what, then the test is to be done using a breath testing device. If the donor is unable to provide a sufficient breath specimen after at least two attempts, if it's a screening test, the technician should use a saliva device. Obviously if it is a confirmation test, they have to use the evidential breath testing device, and so they have to obtain a suitable breath specimen. If they cannot do so after at least two attempts, then the breath alcohol technician discontinues the testing, notifies the DER, and the donor has to undergo a medical examination to determine if there is a medical condition that caused their inability to provide the breath specimen. However, this report and anything having to do with the inability to activate or to provide a valid breath specimen does not go to the MRO for review. That is all taken care of by the employer, and the employer then interfaces with the physician that is going to do the examination with regard to their respiratory condition that may have precluded them from being able to complete the breath test. Here are some things that are an example of the refusal to test, and they're again pretty parallel with what we have in the drug testing arena. You note that it is a refusal to sign step two of the alcohol testing form, which is the signature that's required prior to taking the test. That is a refusal to test. If they will not sign the form and say, yes, I am being tested under DO2 regulations, etc., then that's a refusal to test. Here are some of the fatal flaws, and then we'll talk about the correctable flaws. Now, it is really between the employer and the technician to identify these errors and where appropriate, make a correction, or where there is a fatal flaw, it is the employer that cancels the test. Here are the fatal flaws for an alcohol screening test using a saliva device. If the alcohol screening device is not read within the proper timeframe, all of these devices have that you have to read the result within X number of minutes, and if that was not done, then that's a fatal flaw. If the alcohol screening device did not activate, if it was used past its expiration date or shelf life, fatal flaws in the confirmation process are that there was not the required at least 15-minute wait between screen and confirmation testing. If there was no documentation that an error blank was conducted, that the device was free of alcohol prior to obtaining the confirmation test sample from the employee, if the evidential breath testing device did not print a result, you have to have a printed receipt essentially or a printed document that shows the time of the test, the date of the test, the device that was used, and the result. If the next calibration check of that device, that evidential breath testing device, shows that in fact the device was incorrectly calibrated and was not reading correctly, then you have to go back to the last time that the calibration check was conducted in order to make certain that any results that occurred after that would have to be canceled because their reliability is in question. Here are some of the correctable flaws, again having to do largely with the completion of the ATF of the alcohol testing form, again similar to what we have with DOT drug testing. Just like in drug testing where the MRO cancels a drug test result, that result is not counted as a negative or a positive. If a return-to-duty alcohol test has to be canceled because of a flaw or an error, that can't be used to satisfy the return-to-duty or follow-up test requirement, so they would have to be tested again and get a valid result in order for them to return to duty or to continue duty in a post-rehab follow-up program. It doesn't count toward the random testing procedure, and you cannot remove an employee from duty based on a canceled test result, and again, the same kind of conditions apply for the breath alcohol technician and the DER and the screening test technician, that they can only cancel or invalidate tests for reasons that we went over earlier and that are part of the rule. Records and reports, employers are required to maintain specific records for the alcohol testing process, as you can see here, again, very parallel to what employers are required to do for their drug testing program. The employer's policies have to identify the alcohol testing procedures that will be used in accordance with Part 40. They will talk about how the random selections are going to be done for alcohol testing. Are they done on a separate random selection from a random drug test, or are they done at the same time, all of that kind of thing, and obviously indicating that alcohol testing is done in conjunction with the performance of safety-sensitive duties. So I think that the employer policies, the only thing that is somewhat different from what we were talking about with regard to drug testing is that the employer's policy does have to be pretty specific about on-call or emergency duty. Let me give you an example. An oil or gas line, a pipeline worker is on call to come out when there may be a leak or a problem with a pipeline that needs to have immediate attention or repair. So the question is that if that employee, while sitting at home, even though it was on call, had a couple of beers while they were watching a football game, how does that impact their reporting for duty? So all of that has to be identified in the policy so that a person who is on call, if they are on non-compensated on-call status, then they should have the right to say, I can't come in because I would be in violation of the alcohol misuse prevention because I have had something to drink within the last couple of hours, so I would be in violation of the pre-duty abstinence for our period, for example. So those are the kinds of things that need to be, again, identified in the employer's policy relative to the application of the alcohol testing program. So that, in a nutshell, is DOT alcohol testing. And if you have any questions, we'll kind of go over those. The key thing is that you as a medical review officer are not directly involved in the review, the interpretation, or the reporting, or the verification of DOT alcohol testing results.

DOT alcohol testing

Omnibus Transportation Employee Testing Act

MRO responsibilities

prohibited conduct

pre-duty abstinence

post-accident testing

random testing

NHTSA-approved devices

supervisor education