This module will focus on the Department of Transportation Agency Drug and Alcohol Testing Rules, specifically looking at the common elements in those six agency regulations and then comparing and contrasting some of the differences among those six agency regulations. Let's first take a look at a little bit of history and the overall context of the Department of Transportation anti-drug and alcohol misuse prevention rules. So the very first DOT agency regulations were issued in 1988 and all six of the DOT agencies issued their drug testing and drug prevention regulations at that time, starting with the Federal Aviation Administration, the Federal Railroad Administration, the FTA, the Federal Transit Administration, Federal Motor Carrier Safety Administration, the Pipeline and Hazardous Material Safety Administration, and the U.S. Coast Guard. And all of those drug testing regulations, except for the FTA rule, were implemented in 1990. The FTA regulation was not implemented in 1990 because of a court decision that basically said that the Secretary of Transportation did not have the authority to issue such a rule for the public transit industry. Then in 1991, the Omnibus Transportation Employee Testing Act, known as OTETA, was passed by Congress and then signed into law in the fall of 1991. That legislation expanded the scope of drug testing that was in place from the DOT drug testing regulations. And it also added alcohol testing, which was not a part of the original 1988 rules. The OTETA legislation, the big expansion for drug testing was that it now included transit operations. So the FTA rule was put back on the books, if you will. And it expanded it to intrastate transportation operations. So that it brought in school buses, municipalities, and trucking and other companies that did not go across state lines, but nonetheless were involved in some form of transportation or transit services. The Alcohol Misuse Prevention Rules then for each of the six DOT agencies followed that Omnibus Act and they were issued in late 1994 and were implemented in January of 1995. So the Federal Aviation Administration, the FMCSA, the FRA, and the FTA were all covered under the OTETA legislation. And those four agencies then require very similar comprehensive drug and alcohol testing. The Pipeline and Hazardous Material Safety Administration was not a part of the OTETA legislation, nor was the Coast Guard. So testing in the commercial maritime industry and in the oil and gas industries did not come under OTETA. Therefore, both the PHMSA and the U.S. Coast Guard regulations do continue to require comprehensive drug testing as they did in their original rules in 1988. They did not add the same requirements for comprehensive alcohol testing that the OTETA legislation placed on the other four DOT agencies. Part 40 that we have referred to in other parts of this course is the Overriding Procedural Rule that applies to the implementation and the administration, if you will, of the drug and alcohol programs that are mandated for employers to conduct, to implement and conduct. And that regulation does govern all of those rules, all of those DOT agency rules. Each of the DOT agency rules defines prohibited drug conduct. And you need to remember that all of the regulations apply to safety-sensitive positions. They do not apply to all employees of a trucking company or to all employees of an airline, for example, but only to those positions or that work that is defined in the DOT agency regulation as safety-sensitive. So for safety-sensitive workers, the DOT drug regulations specifically prohibit the unauthorized use of controlled substances at any time, not just on duty or not just on company property, but at any time. They also prohibit having a verified positive drug test. So that is prohibited conduct. And they also prohibit refusing to take a drug test. And that includes adulterating or substituting a specimen for the purpose of DOT-mandated testing. Each of the six DOT agency rules also defines and identifies prohibited alcohol conduct. And here, the context, if you will, of prohibited alcohol conduct is structured around the performance of safety-sensitive duties. So an individual is prohibited from performing safety-sensitive duties while having an indicated alcohol concentration of 0.04 or greater. So that's essentially a positive alcohol test while using alcohol. So any on-duty use of alcohol is prohibited. And it is also a four-hour pre-duty abstinence period. So it is prohibited to use alcohol within four hours of performing safety-sensitive duties. The FAA has a specific carve-out where the pre-duty abstinence period is extended to eight hours for airplane cockpit crew members, such as pilots and first officers. The use of alcohol for eight hours following an accident where a DOT post-accident alcohol test is required is also prohibited. And so the individual, even though they may be off-duty following an accident, they are prohibited from consuming alcohol until that post-accident alcohol test is performed or until eight hours have elapsed. And finally, parallel to the prohibited drug conduct, refusal to submit to a required alcohol test is also defined as prohibited alcohol conduct under each of the DOT agency rules. As we mentioned, prohibited drug and alcohol conduct in the DOT agency rules does encompass refusing to test or refusal to submit to a drug test or to an alcohol test. And so it is in Part 40, that procedural rule, where the specifics of what constitutes a refusal to test are identified. And you see on this slide five of the refusal-to-test circumstances, not reporting to a collection site when told to provide a drug or alcohol test, failure to remain at the collection site until the test is completed. If you do not provide a specimen or attempt to do so, that is also a refusal to test. If you refuse to permit direct observation of a urine specimen collection when it's required by the regulation, refusal to test. And must provide an adequate specimen volume unless there is a medical explanation for the, quote, shy bladder, end quote, or the inability to provide an adequate specimen volume for a urine drug test. Continuing our list of those 13 refusals to test, if you will, a person who refuses to undergo a medical examination when directed as a part of the testing process, that may be one that is directed by you as the medical review officer to determine whether they may be clinical signs, for example, of opiate or opioid use or abuse. Or it may be a medical examination that is required when the person has attempted to provide a urine specimen and the shy bladder protocol has been put in place and the person is unable to produce an adequate specimen. And so they then must be seen by a physician who will determine whether there is a medical condition, either a physiologic or a pre-existing psychological condition, that would have explained their inability to provide the specimen. Another refusal to test is if a person does not cooperate with any part of the collection process, such as washing their hands prior to providing a urine specimen. In the case of an alcohol test, refusing to sign the alcohol testing form prior to giving a breath or saliva specimen. It is also a refusal to test if an employee or an applicant does not submit to a recollection of their drug test that has been ordered. And that generally is one that is ordered by you, the medical review officer, because you have canceled a previous test or in a circumstance where there is a negative dilute where the creatinine is very depressed. And so by the regulation, you have to order the employee to have another collection. And refusing to test also involves cooperation, essentially, with the procedures for doing a witness or a direct observation collection so that if the person does not follow that protocol as outlined in Part 40, then that is a refusal to test. And finally, as I mentioned before, refusing to sign Step 2 of the alcohol test form is a specifically defined refusal to test. Refusal to sign the drug testing custody and control form is not a refusal to test determination. It is a refusal to test to possess or wear a prosthetic or other device that could be used to interfere with the collection process. Usually this is in relationship to an apparatus or something that would enable a substituted specimen to be provided or a urine specimen that is not the individual's. And admitting to the collector or the medical review officer that he or she has adulterated or substituted the specimen is also a refusal to test. And finally, the refusal to test that the medical review officer makes a determination of is when there has been an adulterated or substituted drug test result that has been reported to the MRO. So we've gone through the prohibited conduct in terms of the prohibited drug conduct, prohibited alcohol conduct, and then very specifically the prohibited conduct in relationship to a refusal to test. So what are the consequences of an employee engaging in prohibited conduct as outlined in the regulation? So first and foremost is that the employee is to be immediately removed from safety-sensitive functions and secondly referred to a substance abuse professional for evaluation. So that is as far as the DOT rules go in prescribing consequences. It doesn't talk about termination of employment. It doesn't talk about suspension. It doesn't talk about other disciplinary actions that an employer may take. It simply says that the employer must do those two things. Remove the person from duty and provide the individual with information to have a substance abuse professional evaluation assessment and return to duty process completed. The rule goes on to say that employees who engaged in any prohibited conduct cannot return to work. Remember they've been removed from their safety-sensitive position or in the case of an applicant they are not permitted to begin safety-sensitive work and they cannot return to that work until they have been evaluated by a substance abuse professional. They have complied with the recommended treatment, rehabilitation, or assistance. They have a negative return to duty test, a drug test or an alcohol test or both depending on what the substance abuse professional recommends and they have participated in or are participating in a follow-up testing program that has been established by the substance abuse professional in their final evaluation. So this slide gives us kind of one of the first exceptions, if you will. You know that when we defined prohibited alcohol conduct that one of those things was that a person could not perform safety-sensitive work if they had an alcohol concentration of 0.04 or greater. So that was essentially the de facto definition of a positive alcohol test and that was engaging in prohibited conduct. However, all of the DOT agency rules also have a provision for an alcohol test result that is less than the 0.04 but greater than 0.02, which is the negative cutoff, if you will. And so for any employee who has administered a DOT-mandated alcohol test whose test result is 0.02 up to 0.039, while they are not charged with a violation of the federal rule, they must be removed from safety-sensitive functions. And so it's essentially a suspension from safety-sensitive duties. Now each of the DOT rules defines the terms of that quote suspension or removal from duty somewhat differently. So for example, the Federal Motor Carrier Safety Administration says that drivers must not drive for at least 24 hours after they have had a 0.02 to 0.039 test result on a DOT alcohol test. For the FRA, they define that period of suspension from safety-sensitive duties as the next duty shift or returning to work at least eight hours after they had an alcohol test result of 0.02 to 0.039. For the other agencies, the FTA, the FAA, and the Pipeline Hazardous Materials Safety Administration, they have a requirement that if the test result of 0.02 to 0.039, the employer can either remove that person for at least eight hours, or they can go ahead and test them again, say an hour later or two hours later. And if their alcohol test result is less than 0.02, they can resume safety-sensitive work. You will note that the U.S. Coast Guard is not included here, and I'll go into that a little bit later, but the U.S. Coast Guard essentially does not have any alcohol testing under the Part 40 procedures and provisions. Each of the six DOT agency rules define the safety-sensitive positions. They indicate the types of testing that are required under its rule, such as pre-employment testing, post-accident, reasonable suspicion. So they specify when and under what circumstances those types of tests must be administered. They also define an accident, so that when a DOT, an FAA, or an FMCSA-mandated post-accident drug test and alcohol test are required. Each of the rules also identifies the record-keeping and reporting requirements that are placed upon the employer, and each of the DOT rules also identifies what education and training the employer must provide, and that is, in many cases, to the safety-sensitive employees who are subject to testing under the rule, and also to supervisors or managers of those employees. And each of the DOT rules also specify that Part 40 procedures have to apply to all of the DOT testing. This chart very succinctly goes over which positions are defined as safety-sensitive in each of the DOT regulations. So you will see that the Federal Motor Carrier Safety Administration, for example, has only one category of employees that are defined as safety-sensitive, and therefore subject to the testing under that agency's rule, and those are the commercial drivers. In contrast, the FAA has seven or eight different positions or safety-sensitive functions that it defines as such and that are subject to testing under the FAA drug and alcohol testing regulation. These have really not changed over the 20-plus years that the DOT agency drug and alcohol testing rules have been in effect. One exception to that is that the Federal Railroad Administration about three years ago did add a category of safety-sensitive employees to its regulation, and those were the maintenance of way workers. Prior to that, the only categories of employees, railroad employees, who were subject to testing were the hours of service personnel, which were train crew, signal and switch personnel, and train dispatch personnel. As mentioned earlier, each of the DOT rules talks about the circumstances or the events in which drug and alcohol testing must be done. And probably the one that has the most definition and specifics about how that testing is to be accomplished is the random testing. So employers must conduct random tests of a minimum annual percentage of safety-sensitive employees. And this is true under each DOT rule. Let me note right here, and I will emphasize it again, that only the four DOT agencies that fell under the OTETA legislation have random alcohol testing. Neither the Pipeline Hazardous Materials Safety Administration rule nor the US Coast Guard rule put any requirement or authorized any random alcohol testing. So let's take a look at the random drug testing then. So the random drug tests must be spread reasonably throughout the year. Random selections must be made at least quarterly, but they can be made more frequently than that. And each DOT agency determines the annual percentage of employees that have to be tested. And that's based on the positive rate of random tests in that industry for the previous years. So if the positive rate on random drug tests, for example, was less than 1%, then the random testing rate for that industry under the FAA rule or under the FRA rule, for example, would be 25% annually for the next year. If that random positive rate was 1% or greater, then the random rate that the employers must meet for testing is 50%. So for 2020, you can see that all of the agencies, except for the FAA and the FRA, have a random testing rate of 50%. The FAA and the FRA, for their hours of service workers, do have a random testing rate in 2020 of 25%. Random alcohol testing and the four regulations that require or authorize random alcohol testing is structured very similar to random drug testing. There are two principal differences. One is that it is an adjustable rate that includes three tiers, if you will, of minimum annual percentage. And it starts as high as 50% if the random alcohol positive rate is 1% or greater and goes down to 10% annually if the positive rate is less than 0.5%. The second thing that's very different about random alcohol testing from random drug testing is that random alcohol testing can only be conducted when the employee who is selected for a test is either performing safety-sensitive functions, is about ready to perform them, or has just completed them. Whereas for drug testing, there isn't any nexus, if you will, to the actual performance of safety-sensitive duty. That can be done any time that an employee is on duty. Random testing has to be unannounced, and it must be conducted immediately after notification of the employee. And for 2020, you can see that all of the four DOT agencies that require random alcohol testing are at a 10% annual rate, with the exception of the newly added FRA maintenance-of-way employees, who are still at a 25% annual rate for random alcohol testing. I have just taken one example of a definition of an accident for determining whether or not a DOT-mandated post-accident drug and alcohol test must be conducted. And I've chosen the FMCSA definition because that is, in fact, the majority of drug testing that's done under the DOT umbrella. They're out of probably close to, I don't know, 11 to 12 million safety-sensitive workers in the six transportation industries. Certainly, close to 8 million of them or more are tested under the FMCSA regulation that is applied to all commercial drivers. So the FMCSA accident definition you see here on the slide, and I'm not going to go through it in detail, but the point is that there are specific criteria that need to be met in terms of whether or not the accident is one that is going to mandate, by federal regulation, a post-accident drug and alcohol test. Now, we'll go through each of the DOT agency regulations and point out some of the unique features of each. The FAA regulation, and I've put the actual regulation number, if you will, in parentheses on each of these slides. So the FAA regulation is found at Title 14, Code of Federal Regulations, Part 120, for example. And a couple of things about the FAA rule. Certainly, from an MRO perspective, you have an additional duty here to regulate a verified positive or verified refusal to test result on a pilot, which is an individual who holds a Part 67 medical certificate issued by the Federal Aviation Administration directly to the FAA. There's a special form that the FAA has put together for you as the medical review officer to make that notification. In addition, the FAA has a special form In addition, the FAA rule is one that does have a requirement for recurrent training of supervisors of FAA safety-sensitive employees. And that really is usually annual training. In some cases, it may be biannual. The FAA rule is also unique. And this particular provision comes from language that was directly in the OTEDA legislation, where under FAA, there is what's called a permanent bar or permanent ban provision. So an individual cannot work in an FAA-covered position after a second drug or alcohol prohibited conduct violation or after the first incident of on-duty drug or controlled substance use. So the FAA is able to track this, if you will, because there is a requirement that all positive tests and refusals to test are reported on the Part 67 certificate holders by the medical review officer. And employers have an additional duty to report these offenses to the FAA for other safety-sensitive employees. The requirement to transfer MRO records if an employer changes MRO. So the FAA rule has some specific language about what you must, as an MRO, must do when you are no longer providing MRO services to a covered aviation entity. The FMCSA regulation is found at Title 49 CFR Part 382. And remember, this is the regulation that applies to all commercial driver's licensed personnel, whether they are independent owner-operators, whether they work for large trucking companies, or whether they work for a municipality or for a school district. Owner-operators have to belong to a consortium and have a third-party administrator that oversees their program in terms of compliance and reporting. There is no drug test that's required as part of the DOT driver physical examination process. However, and many physicians who act as medical examiners for the driver physical may have a drug test done as part of that physical, but that's a non-DOT drug test. It's not a part of the testing under Part 382. Beginning in January of 2020, the FMCSA regulation now includes an entire section on a national database where violations for commercial drivers must be reported and that information retained so that employers and other commercial driver's licensing authorities can have access to it to see whether a driver may be ineligible to be driving. The medical review officers must report to the clearinghouse. Employers must report to the clearinghouse. Violations of their employees or drivers, people who apply for a test position with them, and also substance abuse professionals must report when they have conducted the SAP assessment and a driver has successfully completed the return to duty requirements. Reporting in the clearinghouse is done by CDL number and those include the driver's name and date of birth. Prior to the clearinghouse, there were several states that required medical review officers and or employers to report drug and alcohol violations on commercial driver's licensed people to the state licensing bureau or division. I suspect that those state reporting requirements will go away once the clearinghouse is functional and has been in place for a couple of years. Currently, MROs are still required in addition to reporting to the clearinghouse, they are still required to report violations such as verified positive tests or verified refusals to test on commercial driver's licensed employees to Arkansas, Oregon, Texas, and Washington. The FRA drug testing regulation is probably the most different from the other five agency rules. FRA's rule for drug and alcohol testing is found in 49 CFR part 219. Probably the most unique things about the FRA regulation is that they have a very different post-accident testing program and it includes taking specimens for blood testing. It also includes post-mortem testing. The drug panel is greatly expanded and all of those specimens are sent to a laboratory that is under contract to the FRA for this special toxicology testing that is really aimed at accident investigation. And the medical review officer does receive the test results. However, there is a medical director at the FRA who ultimately makes the decisions about the post-accident test results. The FRA regulation also authorizes what is called for-cause testing, which is different from reasonable suspicion testing as defined in the other DOT agency rules. For-cause testing, there does not need to be any individualized suspicion. Instead, it is triggered by an unexplained human error, an operating practices violation, and an entire crew, for example, can be tested under the for-cause program. There are engineer certificate actions for a positive test or for a refusal to test. And the FRA rule, for example, is the only one of the DOT agency regulations that enforces a mandatory nine-month suspension from FRA duties for a refusal to test determination. The FRA rule has an expanded supervisory training requirement to three hours rather than the two hours that is specified in the other DOT agency regulations. That third hour really is training for managers and supervisors in the railroads about the FRA's special post-accident testing program. The FTA Drug and Alcohol Testing Regulation at Part 655 shares a lot of commonality with both the FAA and the FMCSA regulation. It does, however, have a mandatory training requirement for employees who are subject to testing under the FTA rule. There is an employer certification of compliance with Part 655 that is a requirement of the FTA regulation. The FTA, like the Federal Motor Carrier Safety Administration, does allow for police or law enforcement administered tests following an accident to be used in lieu of the employer conducting a post-accident drug and or alcohol test. The FTA regulation is somewhat different in that it really applies to transit authorities or transit entities that receive federal funding, which is essentially 98% of all public transit systems in the US. And the recipients of those federal transit dollars have to certify their compliance with the FTA Drug and Alcohol Regulation. They are audited and inspected by FTA inspectors. And should they be found to be in significant noncompliance in terms of their drug and alcohol program, they do risk losing federal funding. And now we come to the last two DOT agencies whose regulations are substantially different from the other four. The Pipeline Hazardous Materials Safety Administration's Drug and Alcohol Testing Regulation, found at Part 199, applies to oil and gas pipeline operators and their contractors and subcontractors who perform safety-sensitive tasks or functions on those pipelines. Each pipeline operator or its contractor must have a written anti-drug and alcohol misuse prevention plan. The employers must monitor their contractor testing programs. And they have to submit data to the PHMSA office annually in the form of a management information systems report, not only for the testing that the operator does of its own employees, but also of the testing that its contractors and subcontractors perform. Remember that the PHMSA rule is one of the DOT agency regulations that does not have any random alcohol testing. The only alcohol testing incorporated into Part 199 is for post-accident and for reasonable suspicion. There are provisions also, obviously, if a person does have an alcohol violation on a post-accident or a reasonable suspicion test result or having alcohol while on duty, for example, then return to duty and follow-up alcohol testing are required under the rule. And finally, we come to the US Coast Guard. The US Coast Guard regulations are found in two separate parts of Title 46. And those are Parts 4 and 16. Again, like the FTA rule, the Coast Guard regulation does require employee training. So all maritime employees who are subject to Coast Guard drug and alcohol testing, those are individuals who are involved in providing operations, navigation, maintenance and repair, emergency response onboard US-flagged vessels are subject to Parts 4 and 16. The MRO has a very special and significant role under the US Coast Guard rule. The MRO makes a determination of an employee's risk of drug use in the return to work letter. So the MRO is really an adjunct, if you will, to the SAP return to duty process. And while the mariner may go through the substance abuse professional evaluation and assessment and prescribe treatment or rehabilitation, the medical review officer has to review that information and essentially sign off that the individual represents an acceptable level of threat to public safety in terms of returning to duty. So there's an assessment made in terms of the risk associated with relapse or continued prohibited use of drugs or alcohol. The US Coast Guard does take certificate action when a mariner has a positive test or refusal to test or other violation of Part 4 or 16. And the US Coast Guard regulation is the only one that has a periodic drug test required as part of its rule. Anytime that a mariner is renewing their Coast Guard license, they must have a DOT drug test. And that drug test has to be completed and documented on a specific US Coast Guard form. And that form has to be signed by the medical review officer. There is no alcohol testing required under Parts 4 and 16 except for what is called post-incident or serious marine incident circumstances. And even then, the testing that is required then does not have to follow Part 40 procedures. So there is not a requirement, for example, for the use of an evidential breath testing device for confirmation of alcohol that the person may have in their system. For more information, visit www.fema.gov.

Department of Transportation

Agency Drug and Alcohol Testing Rules

drug testing

alcohol testing

transportation industries

prohibited conduct

random testing

supervisory training