GUIDANCE FOR REVIEWING PROGRAMS FOR ISSUANCE OF A LETTER OF SUBSTANTIAL COMPLIANCE
1. Program should not simply state "We adhere to all Federal Regulations". Referencing the regulations is not enough.
2. The Program should not just regurgitate the regulations. It should explain how the employer meets the requirements. What does the employer do that meets the requirements? For example, we don't want to see that "The Company conducts tests following a serious marine incident in accordance with 46CFR16.240". We would rather see something like "Following a serious marine incident, The Company will ensure that all crewmembers involved in the accident are chemically tested at the nearest facility as soon as practicable. All efforts will be taken to be sure that testing is completed, etc."
3. The following should also be clearly stated/listed in the program:
a. Name of the Designated Employer Representative (DER)
b. Contracts with service agents - written or oral
c. Name of C/TPA, if utilized. If C/TPA submitting all C/TPA contact information
d. Collection training, MRO qualification and SAP qualification addressed and requirements met
e. Name of one collection facility that is used
f. Certified laboratory used [check against listing]
g. MRO used [address and phone number]
h. The five drugs tested for [all 5 of them!]
i. Description of the four types of testing conducted
j. Testing rate-25% or "rate set by USCG COMDT" [No less than 25%]
k. 40.25 requirements (information request example)
l. Non-negative test handling procedures
m. Blind proficiency testing, if applicable
n. Split specimen procedures
o. Record keeping (for how long and who maintains records)
p. SAP Contact information
q. Who sends in MIS report; employer or consortium [also, when is it sent in]
r. Coast Guard notified in the event of a positive test
s. Collection site security
t. EAP program description [Be sure all aspects of each of the EAP requirements laid out in 46 CFR 16.401 are mentioned in the program. If it isn't in there, it isn't good enough]
4. It should be clear that alcohol testing is done ONLY if there is Reasonable Cause or after a Serious Marine Incident.
Also, we want to be sure that alcohol is tested for via blood or breath samples. We are not testing urine for alcohol!
5. An excellent example of a program came from a consortium that briefly paraphrased each section of the regulations then listed the employers responsibility and consortiums responsibility regarding each section. It was simple and easily understood by employees. If asked how a program should be set up, this is a good way to suggest.
6. When we read a program, we keep in mind that it is probably the only source of information regarding chemical testing requirements for employees. Since most employees probably don't know what a CFR is, a program should be informative and understandable.
Legalese should be avoided and CFR cites should appear infrequently. CFR's are not very difficult documents to summarize. Therefore, companies should strive to summarize the information so that the information is presented in a way that crewmembers will understand what is expected of them, and what they can expect from the company.
7. When a program discusses circumstances of testing positive, typically it just states what the employer's actions will be. Employees should be aware that they will most likely endure Coast Guard consequences as well. Further information about these consequences is not necessary, as long as employees are aware that the Coast Guard may be involved if they test positive.
We would like to see this information in programs. Again, this is something for the benefit of the individual mariner who is reading the chemical testing program that the employer is providing. We should make sure that the employer is providing as much information as possible.