Railroads have authority to adopt more stringent standards under their own authority.

Transcription

1 ALCOHOL AND DRUG TESTING 1/ This part deals with the alcohol and drug testing regulations. Because of the complexity, the specific sections of the federal regulations discussed are identified for easier reference. A few sections are not summarized because they relate primarily to technical matters. Subpart A General 49 C.F.R Purpose And Scope Railroads have authority to adopt more stringent standards under their own authority Application The rule covers all hours of service employees who work for a railroad, and includes private contractors and their employees if such persons perform work which would be covered under the Hours of Service Act. 2/ Railroad is defined as all forms of non-highway ground transportation that run on rails or electromagnetic guideways, including (1) commuter or short-haul rail passenger service, and (2) high speed ground transportation systems. Excluded are rapid transit operations. Small railroads are excluded from most provisions of the rules if they employ 15 or fewer hours of service employees and do not operate on tracks of another railroad except as necessary for interchange. (If a small railroad operates over trackage of a covered railroad for several miles, that small railroad would be covered under the rules). Industrial plant railroads are also excluded. Foreign railroad operations within the U.S. are covered by the post accident and for cause testing, but not the random testing. Also excluded are railroads that have fewer than 400,000 total manhours Definitions Various words and terms referred to in the regulation are defined in this section Waivers The FRA may grant a waiver of compliance if it is in the public interest and consistent with railroad safety. (Regarding the issue of stand down, the FRA will treat any waiver request in accordance with ) 1/ These sections cover all types of testing. 2/ FRA s rules do not apply to employees on commuter railroads who have commercial drivers licenses. Rather, these employees are subject to the Federal Highway Administration s rules.

2 Responsibility for Compliance The responsibility of a railroad as it relates to violations is that the railroad is liable only if (a) it willfully requires or permits the employee to go or remain on duty while the employee was in violation of the regulations, or (b) the railroad fails to exercise due diligence (a high degree of care) to assure compliance. Any person (including but not limited to a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) who violates any requirements shall be subject to a penalty. Penalties may be assessed against individuals only for willful violations. The civil penalty ranges from $500 to not more than $10,000, except if gross negligence or a pattern of repeated violations has created an imminent hazard of death or injury, the penalty may not exceed $20,000 per violation. This deals with the individual responsibility of a railroad when it operates common facilities or on the property of another railroad. The host railroad is primarily responsible for compliance with testing for post-accident or reasonable cause. The employing railroad would retain the primary responsibility concerning the other aspects of the rule, such as random testing and use prohibitions. Whenever a host railroad is involved in testing, it shall make necessary witnesses and records available to employees who are subject to an investigation. However, it is not necessary that witnesses travel where a telephone interview or other means would permit development of the facts. Any independent contractor or other entity that performs covered service for a railroad is covered to the same extent as the railroad. The agreement between the railroad and the independent contractor must be clearly spelled out as to which has the responsibility for complying. In the absence of the clear agreement, all of the parties will be jointly and severally liable General Conditions for Chemical Tests Any employee covered by the rules shall be deemed to have consented to the testing. It is made clear that necessary medical treatment shall be given priority over testing where the employee has sustained a personal injury. The failure of an employee to remain available following an accident or a casualty as required by company rules shall be considered a refusal to participate in testing. This would subject the employee to a mandatory disqualification for a period of 9 months. (The use of catherization to obtain a urine sample is set out at 40.61(b)(3)). (Tampering with a sample to prevent a valid test constitutes a refusal to participate in testing and is set out in ).

3 (Procedures to be followed where there is adulteration or substituted test is set out at 40.23). The employee must give a written consent to the testing. Any clause in the consent form that would waive rights the employee would otherwise have is void. Employees would not be required to waive any recourse that they may have as a result of an improper collection. The rule does not restrict the railroad from conducting other testing that the railroad may otherwise be free to do, but samples taken under the federal regulations may not be used for testing other than what is authorized or mandated under the regulations. Each supervisor responsible for covered employees shall be trained in the signs and symptoms of alcohol and drug use. The duration of such training shall not be less than 3 hours Preemptive Effect States are preempted from issuing any drug testing regulations, except for a local safety hazard. This does not preempt state criminal laws Railroad Policies Employees shall be given clear written notice whether or not the tests are conducted under the FRA rule, and the basis upon which the tests are required (e.g., reasonable suspicion, violation of a specified operating/safety rule, random selection, follow-up, etc.) This does not require written notices for individual non-fra testing events (such as return from furlough testing or periodic testing). The custody and control form may be used as the form of notice that is required. As also stated in a railroad cannot use the DOT custody and control form for non-dot testing. Each railroad is required to provide the employee with the railroad's policies and procedures required to meet the testing requirements. Each covered employee shall be advised by the railroad of the resources available to the employee in evaluating and resolving problems associated with misuse of alcohol and controlled substances. The materials provided to each employee shall be detailed and include matters such as: circumstances under which an employee will be tested, the procedures to be used in a test, consequences of positive tests results, etc. The materials supplied may also include information on additional railroad policies that are based on the railroads authority independent from the FRA rules.

4 Subpart B Prohibitions 49 C.F.R Alcohol and Drug Use Prohibited No employee may use or possess alcohol or a controlled substance; no employee may report for duty or remain on duty while (a) under the influence or impaired by alcohol, (b) having.04 or more alcohol in the breath or blood, or (c) under the influence of or impaired by any controlled substance. No employee may use alcohol: (1) within 4 hours of reporting for covered service, or (2) after receiving notice to report for covered service. (Employees who are typically subject to call no more than two hours prior to reporting shall be considered to be in compliance if they abstain from using alcohol from the time they are called to the time they report, even if that period runs for less than 4 hours before reporting to perform covered service). Where the test result is between.02 and.04 the employee must not work until his/her next scheduled duty period, but not less than eight hours after the test. If the test result indicates an alcohol concentration below.02, a railroad cannot use the Federal test to discipline an employee. However, if the test result is between.02 and.04, a railroad may impose more stringent discipline than the Federal minimum Prohibition on Abuse of Controlled Substances No covered employee may use a controlled substance at any time, whether on or off duty, except as explained below Prescribed and Over-the-Counter Drugs 3 / An employee may use a controlled substance only if a treating physician has determined that such use at the prescribed dosage is consistent with safe performance of the employee's duties. Employees must affirmatively advise the physician of their safetysensitive duties and should, for self-protection, request the physician to note on the medical file that the employee is authorized to use the medication and work. Where an employee is being treated by more than one medical practitioner, and therefore at risk with respect to drug interactions, one of the prescribing physicians is required to evaluate the effect of all medications in combination Responsive Action This section deals with action required by the railroad in the event an employee tests positive or refuses to undergo the test. The employee shall be removed from 3 / Regarding prescription and over the counter drug use, the FRA on December 16, 1998 issued Safety Advisory It recommends, but does not order, that the guidelines in this section be followed for use of all drugs.

5 covered service and then would be entitled to a prompt hearing before a person other than the charging officer. The hearing may be consolidated with any disciplinary hearing, and it shall be convened within the time set forth in the collective bargaining agreement. In the absence of an agreement provision, the employee may demand that the hearing be convened within 10 calendar days after suspension. A railroad must comply with the return-to-service and follow-up testing requirements, and the substance abuse professional conflict-of-interest provisions in , , and This section does not apply to a test under a railroad's own medical policy. A preemployment alcohol test is no longer required by the regulations Railroad's Duty to Prevent Violations This describes the limitations on a railroad's liability. The provisions require a railroad to exercise a high degree of care to prevent violations by an employee, but do not impose liability where, despite such efforts, the employee uses alcohol or drugs and the railroad is not aware of the conduct Consequences of Unlawful Refusal An employee who refuses to provide a breath or a body fluid sample shall be deemed disqualified for a period of nine months. This does not limit any discretion on a railroad to impose additional sanctions. Subpart C Post Accident Toxicological Testing (The Part 40 procedures do not apply to the FRA post-accident testing requirements.) 49 C.F.R Events for Which Testing is Required (a) Breath, Urine and blood testing is mandatory after: (1) Each major train accident which results in (i) fatality; (ii) hazardous materials release involving freight car lading causing an injury from the product or an evacuation; (iii) damages to property exceeding $1,500,000. (It should be emphasized that this section requires testing only after a "train accident." That is, there must be an event producing damage that reaches the reporting threshold of $6,700). (2) A collision which causes an injury or damage to property which exceeds $150,000; raking collisions resulting from derailments are exempted. (3) An employee fatality in a train incident.

6 (4) An accident involving a passenger train that results in one or more reportable injuries. "Property damages" is damage to railroad property computed in the same manner used for interline claims. However, passenger equipment is valued on a replacement basis without regard to depreciation. (b) Exceptions: (1) There will be no mandatory testing after accidents occurring at rail/highway grade crossings. (However, the railroad could require alcohol or urine drug testing if it has reasonable cause to suspect impairment, or an employee contributes to the cause of the accident. (2) No testing is required where there is a collision, passenger train accident, or employee fatality and the employee's involvement can be positively excluded at the scene of the accident. (3) This would exempt any accident/incident which is wholly attributable to vandalism, trespassers, or to natural causes such as floods, tornadoes, or other natural disasters. However, if there is significant possibility that the response by a crew member affected the severity of the accident, the exemption would not apply. For post-accident testing, the collection site must be pre-designated by the railroad and must be a medical facility. This does not prohibit the use of a nondesignated facility as may be required to effect prompt sample collection Responsibilities of Railroads and Employees Once a qualifying testing event occurs, the railroad may conduct the alcohol test if the EBT is available and it does not interfere with or delay collections for mandatory blood and urine testing. After each covered accident and incident, the railroad shall take all practicable steps to assure that all covered employees directly involved in the accident or incident provide two blood samples consisting of a primary sample and a split sample, and two urine samples consisting of a primary sample and a split sample. If an injured employee is unconscious or unable to provide consent and the testing medical facility declines to obtain blood samples, the railroad shall immediately notify FRA s Alcohol and Drug Program Manager, and the duty officer at the National Response Center Sample Collection and Handling This deals with post-accident sample collection. It is intended to assure that the

7 toxicology kits be shipped as soon as possible. The means of transportation should be adequate to ensure delivery within 24 hours of shipment, and, wherever possible, transfer of the sealed kit should be directly from the collecting medical facility to the courier. However, if a courier pick-up is not available, the railroad shall transport the sealed shipping kit to the most expeditious point of shipment via air. The FRA has awarded the contract for testing the post accident samples to NWT, Inc., Salt Lake City, Utah FRA Access to Breath Test Results Documentation of breath test results shall be made available to FRA Fatality In case of an employee fatality, body fluid and/or tissue samples shall be obtained. The FRA and the National Response Center shall be notified immediately of the death Reports of Tests and Refusals If a railroad is unable to obtain samples as required by the rules, the railroad shall make a narrative report of the reason for such failure, and actions taken by the railroad in response to the failure. If a test is not administered within four hours following the event, the railroad shall prepare a record stating the reasons why. The FRA and the National Response Center shall be immediately notified Analysis and Follow-Up The test results are reported to both the employee and the railroad's medical review officer. The railroad has the duty of confidentiality with respect to the results under post-accident testing and with random testing. The only exception is where the FRA or the NTSB has publicly disclosed the results in the conduct of an accident investigation. The test results for employees shall be reviewed by the railroad's MRO in the same manner as required for other testing under the regulations. The main purpose of the review is to reconcile test results with alleged medical use of the drugs by an employee. If the MRO verifies that the employee used the drug under medical authorization, that will be reported to the FRA. The MRO must conduct a review and make a report for each post-accident positive result. The FRA shall not be bound by the MRO's determination. All medical information to the extent permitted by law shall be kept confidential. (The FRA believes that it is obligated by law to provide information pertinent to an accident investigation to the NTSB, but it urges the Board to maintain the medical

8 information in confidence). This clarifies the manner in which an employee shall contribute to an accident investigation by responding to the toxicology report. Also, the employee is allowed 45 days to respond to the results of a test prior to the preparation of any final investigation report. The response shall be mailed to the FRA. The period for retaining the positive samples shall be 2 years, and the retention period for negative samples is 3 months. At the employee's request a reanalysis of the specimen is authorized, which must be made in writing within 60 days of the date of the toxicology report. A reanalysis which is conducted at a laboratory other than the laboratory designated under the postaccident testing subpart shall be at the expense of the employee. (see 49 C.F.R for time requirements for the other type tests). Since some drugs may deteriorate during storage, any detected levels of the compound shall be considered as corroborating the original test result Unlawful Refusals; Consequences An employee who refuses to cooperate in providing a blood or urine sample shall be withdrawn from covered service and shall be deemed disqualified from covered service for a period of 9 months. (A railroad can impose an additional sanction). On expiration of the 9-month disqualification period, an employee can return to work only under the same conditions as set forth in (SAP evaluation and necessary treatment). This could all occur within the same 9-month period. Prior to withdrawing an employee from covered service, the railroad shall provide an opportunity for a hearing before a presiding officer other than the charging official. Procedural protections are forwarded under (d). Subpart D Testing For Cause 49 C.F.R Mandatory Reasonable Suspicion Testing Reasonable suspicion testing will no longer be discretionary. Suspicion of alcohol or drug use based on personal observations shall require testing. The accident/incident and rule violation provisions for testing would remain optional. A railroad shall require a breath alcohol test where the railroad has reasonable suspicion to believe that the employee has used alcohol, or the railroad shall require a urine drug test where there is reasonable suspicion of the use of controlled substances. The reasonable suspicion must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employees.

9 If the EBT device is not available within 8 hours, a report is required to be filed with FRA explaining the reasons. With respect to the breath alcohol test, one trained supervisor may make the reasonable suspicion determination, but such person may not also serve as the technician for purposes of conducting the test. With respect to a urine drug test, at least two supervisors shall be required to make the reasonable suspicion determination, but only one needs to be trained Testing for Cause The testing for reasonable cause was expanded in 1990 to include prohibited "use" of controlled substances, not only while on duty, but at any time. The reasonable cause testing, as originally adopted, was designed to detect and deter on the job use or impairment. Since the revised procedure has been expanded to include prohibited use of drugs at any time, impairment is no longer an issue. A railroad may seek discipline based upon any positive urine test, irrespective of impairment. Also, the employee no longer has the option to obtain a blood test. The use of alcohol, unlike drugs, is acceptable under certain limited conditions. Under , an employee is prohibited from using alcohol either 4 hours before reporting to perform covered service, or for the period of time running from the time the employee receives a call to report to service. (a) A railroad may, under the conditions specified in this subpart, require a covered employee to cooperate in breath or urine testing. This authority for urine testing is limited to testing after observations or events that occur during duty hours (including any period of overtime or emergency service). For breath testing, such test may occur only during, or immediately before or after performing safety sensitive work. (b) The following circumstances constitute cause for the administration of breath tests under this section: (1) For Cause Breath Testing. In addition to reasonable suspicion as described in , testing after an accident/incident and a rule violation constitutes reasonable cause for both breath alcohol testing, as well as urine drug testing. (2) Accident/incident. The employee has been involved in a reportable accident or incident, and a supervisory employee of the railroad has a reasonable belief based on specific, articulable facts that the employee's acts or omissions contributed to the occurrence or severity of the accident or incident (Some carriers have interpreted the current rule to mean that the mere happening of an accident constitutes grounds to test an employee. The changes in (3) underscore the fact that this is not an acceptable interpretation. The railroad must be able to articulate a factual basis for believing the employee deliberately or negligently contributed to the occurrence or severity of the accident/incident before electing to test that employee); or (3) Rule violation. The employee has been directly involved in one of the

10 following operating rule violations or errors: (i) Noncompliance with a train order, track warrant, timetable, signal indication, special instruction or other direction with respect to movement of a train that involves (A) Occupancy of a block or other segment of track to which entry was not authorized; (B) Failure to clear a track to permit opposing or following movement to pass; (C) Moving across a railroad crossing at grade without authorization; or (D) Passing an absolute restrictive signal or passing a restrictive signal without stopping (if required); (ii) Failure to protect a train as required by a rule consistent with of this title; (iii) Operation of a train at a speed that exceeds the maximum authorized speed by at least ten (10) miles per hour or by fifty percent (50%) of such maximum authorized speed, whichever is less; (iv) Alignment of a switch in violation of a railroad rule or operation of a switch under a train; (v) Failure to apply or stop short of derail as required; (vi) Failure to secure a hand brake or failure to secure sufficient hand brakes; or (vii) In the case of a person performing a dispatching function or block operator function, issuance of a train order or establishment of a route that fails to provide proper protection for a train. (viii) Entering a crossover before both switches have been properly lined for movement. (ix) Running through a switch; and (x) The failure to flag a train which is fouling an adjacent track, where required by the railroad's rules, is likewise a basis for testing.

11 (c) For Cause Urine Testing. In addition to reasonable suspicion testing in , each of the conditions set forth in paragraphs (b)(2) ("accident/incident") and (b)(3) ("rule violation") of this section as constituting reasonable cause for breath testing also constitutes reasonable cause with respect to urine testing Prompt Sample Collection; Time Limitation The breath alcohol or urine drug collection may only be conducted promptly following the observation or event upon which the testing decision is based. The reason for this is that there have been instances where the railroad has allowed the employee to complete his/her normal duties before commencing the testing procedures. In addition, there is an 8-hour limitation imposed after which the test cannot be performed. In the case of an accident or injury, the 8-hour period begins to run when a "responsible railroad supervisor" receives notice of the facts providing the basis for the test. The 8-hour period is satisfied if arrangements have been made as promptly as feasible and the employee has been brought into the collection site (with the collector present) within that time. An employee may not be tested if that employee has been released from duty under the normal procedures of the railroad. Once the employee is released from duty, he/she may not be recalled for reasonable cause testing. This is true even if the employee reported an on the job injury after work. "Responsible Railroad Supervisor" is defined as any responsible line supervisor (e.g. a trainmaster or a road foreman of engines) or superior official in authority over the employee to be tested. If a test required by this section is not administered within two hours following the event, the railroad must prepare a record stating why. Subpart E Identification of Troubled Employees 49 C.F.R Requirement for Policies... (b) Each railroad shall adopt, publish and implement (1) A policy designed to encourage and facilitate the identification of those covered employees who abuse alcohol or drugs and to ensure that such employees are provided the opportunity to obtain counseling or treatment.... (e) Nothing shall be construed to (1) Require payment of compensation for any period an employee is out of service under a voluntary referral or co-worker report policy; (2) Require a railroad to adhere to a voluntary referral or co-worker report policy

12 in a case where the referral or report is made for the purpose, or with the effect, of anticipating the imminent and probable detection of a rule violation by a supervisory employee; or (3) Limit the discretion of a railroad to dismiss or otherwise discipline an employee for specific rule violations or criminal offenses, except as specifically provided by this subpart Voluntary referral policy (a) Scope. This section prescribes minimum standards for voluntary referral policies. Nothing in this section restricts a railroad from adopting, publishing and implementing a voluntary referral policy that affords more favorable conditions to employees troubled by alcohol or drug abuse problems. (b) Required provisions. A voluntary referral policy shall include the following provisions: (1) A covered employee who is affected by an alcohol or drug use problem may maintain an employment relationship with the railroad if, before the employee is charged with conduct deemed by the railroad sufficient to warrant dismissal, the employee seeks assistance through the railroad for the employee's alcohol or drug use problem or is referred for such assistance by another employee or by a representative of the employee's collective bargaining unit. The railroad shall specify whether, and under what circumstances, its policy provides for the acceptance of referrals from other sources, including (at the option of the railroad) supervisory employees. (2) Except as may be provided under paragraph (c) of this section, the railroad treats the referral and subsequent handling, including counseling and treatment, as confidential. (3) The railroad will, to the extent necessary for treatment and rehabilitation, grant the employee a leave of absence from the railroad of not less than 45 days. (4) Except as may be provided under paragraph (c)(2) of this section, the employee will be returned to service on the recommendation of the EAP counselor. Approval of return to service may not be unreasonably withheld. (c) Optional provisions. A voluntary referral policy may include any of the following provisions, at the option of the railroad: (1) Confidentiality is waived if: (i) The employee at any time refuses to cooperate in a recommended course of counseling or treatment; and/or

13 (ii) The employee is later determined, after investigation, to have been involved in an alcohol or drug related disciplinary offense growing out of subsequent conduct. (2) The policy may require successful completion of a return-to-service medical examination as a further condition on reinstatement in covered service. (3) The policy may provide that it does not apply to an employee who has previously been assisted. (4) With respect to a certified engineer or a candidate for certification, (e) governs Co-worker report policy (a) Scope. This section prescribes minimum standards for co-worker report policies. Nothing in this section restricts a railroad from adopting, publishing and implementing a policy that affords more favorable conditions to employees troubled by alcohol or drug abuse problems. (b) Employment relationship. A co-worker report policy shall provide that a covered employee may maintain an employment relationship with the railroad following an alleged first offense under these rules or the railroad's alcohol and drug rules, subject to the conditions and procedures contained in this section. (c) General conditions and procedures. (1) The alleged violation must come to the attention of the railroad as a result of a report by a co-worker that the employee was apparently unsafe to work with or was, or appeared to be, in violation of this part or the railroad's alcohol and drug rules. (2) If the railroad representative determines that the employee is in violation, the railroad may immediately remove the employee from service. (3) The employee must elect to waive investigation on the rule charge and must contact the SAP counselor within a reasonable period specified by the policy. (4) The SAP must schedule necessary interviews with the employee and complete an evaluation within 10 calendar days of the date on which the employee contacts the counselor, unless it becomes necessary to refer the employee for further evaluation. In each case, all necessary evaluations must be completed within 20 days of the date on which the employee contacts the counselor. (d) When treatment is required. If the SAP determines that the employee needs treatment, the following conditions and procedures shall apply: (1) The railroad must grant the employee a leave of absence from the railroad of

14 not less than 45 days, if necessary for the purpose of meeting initial treatment needs. (2) The employee must agree to undertake and successfully complete a course of treatment deemed acceptable by the SAP. (3) The railroad must promptly return the employee to service, on recommendation of the SAP. Return to service may also be conditioned on successful completion of a return-to-service medical examination. Approval of return to service may not be unreasonably withheld. (4) Following return to service, the employee, as a further condition on withholding of discipline, may, as necessary, be required to participate in a reasonable program of follow-up treatment for a period not to exceed 5 years from the date the employee was originally withdrawn from service. (e) When treatment is not required. If the SAP determines that the employee is not affected by an identifiable and treatable mental or physical disorder (1) The railroad shall return the employee to service within 5 days after completion of the evaluation. (2) During or following the out-of-service period, the railroad may require the employee to participate in a program of education and training concerning the effects of alcohol and drugs on occupational or transportation safety Alternate policies (a) In lieu of a policy under (voluntary referral) or (co-worker report), or both, a railroad may adopt, publish and implement, with respect to a particular class or craft of covered employees, an alternate policy or policies having as their purpose the prevention of alcohol or drug use in railroad operations, if such policy or policies has the written concurrence of the recognized representatives of such employees. (b) The concurrence of recognized employee representatives in an alternative policy may be evidenced by a collective bargaining agreement or any other document describing the class or craft of employees to which the alternate policy applies. The agreement or other document must make express reference to this part and to the intention of the railroad and employee representatives that the alternate policy shall apply in lieu of the policy required by , , or both. Subpart F Pre-employment Tests 49 C.F.R Pre-employment Tests This section requires pre-employment urine testing. In addition to preemployment drug screens, this section requires testing of any present employee who

15 seeks to transfer from non-covered service to covered service. However, there would only be one test if the employee moves back and forth among occupations. That is, the employee would have to take this type of test only once during his/her employment with the railroad Pre-employment Alcohol Testing This section authorizes pre-employment alcohol testing, but does not require it. Part 40 procedures must be followed Notification; Records The railroads shall provide for medical review of the urine drug test results as required by Subpart H, and shall notify the employee of the results of both the alcohol and/or drug tests and that records shall be maintained confidentially as required under Subpart J. Subpart G Random Alcohol and Drug Testing Programs Coverage: Employees Performing Work Covered by the Hours of Service Act Railroad Random Drug Testing Programs (a) A railroad must submit its random program to FRA for approval. A new railroad had 60 days within which to submit a random testing program, and implement it 60 days after approval. (b) Program must meet the following criteria: (1) Each employee to be tested shall have substantially equal statistical chance of being selected. The idea of random selection is that those tested will be selected under neutral, objective criteria, i.e., no individual will be singled out for subjective reasons. (2) Testing is to be conducted at a "25% rate." This means that the number of tests will equal 25% of the covered population. Under random selection, it is statistically likely that some employees will be tested more than once per year, while others will not be tested at all. If the railroad conducts the random testing through a consortium, the annual rate may be calculated for each individual employer, or for the total number of covered employees in the consortium. (3) The program shall ensure that the possibility of a test exists on any day the employee works; (4) Notice to employee of submitting test not given until time of duty tour; (5) The program must be consistent with the regulations; and

16 (6) In general, an employee can be tested only while on duty. An employee who works in covered service only a portion of the time will be subject to random testing. To the extent practicable, such employee shall be subject to the possibility of random testing on any day that they actually performed covered service. However, the railroad may in its program specify circumstances under which that would be impossible, and therefore could require testing at times other than when actually performing covered service. Also, if the employee s hours of service expires before completion of a random test, the railroad must discontinue the test. (This is not the rule for post accident and for cause testing, so long as the railroad uses due diligence to complete these tests. See ) Administrator's Determination Of Random Drug Testing Rate Currently, railroad employees will be tested at the rate of 25%. If the data for any calendar year indicate that the positive rate is equal to or greater than 1%, the Administrator will increase the rate to 50%. When the rate is at 50%, the Administrator may lower the rate to 25%, if the data for 2 consecutive calendar years show that the positive rate is less than 1%. If a given covered employee is subject to random testing under the rules of more than 1 DOT agency for the same railroad, the employee shall be subject to the testing at the rate established by the agency regulating more than 50% of the employee's function. Where the railroad is required to conduct random testing under more than one DOT rule, the railroad may (1) establish separate pools for random selection with each pool containing the covered employees who are subject to the testing at the same required rates; or (2) randomly select such employees for testing at the highest percentage rate established by any DOT agency to which the railroad is subject Participation in Drug Testing A railroad shall require a covered employee to cooperate in the urine testing, and the employee shall provide the required sample. The employee shall be excused only in the case of a documented medical or family emergency Positive Test Results; Procedures Employee shall be entitled to test results. Hearing rights are set forth under , and that section also contains the requirements for an employee to be returned to service. The action by a railroad required under is not stayed pending the result of the test of the split sample.

17 Railroad Random Alcohol Testing Programs Each railroad shall submit for FRA approval a random alcohol testing program. Currently, the annual testing rate of tests conducted will equal at least 10% of the number of covered employees, with testing to be spread reasonably through the 12-month period. If the railroad conducts random testing through a consortium, the annual rate may be calculated in one of two ways. It may calculate for each member employer or calculate for the total number of covered employees subject to random testing by the consortium. The employees shall be subject to testing only at the time the employee reports for work and while on duty. Only employees who perform covered service for the railroad shall be subject to testing. In the case of employees who during some duty tours perform covered service and during others do not, the employee shall be tested only during the time covered service is performed. The railroad shall inform the employee that the random testing was made on a random basis. No later than 45 days prior to commencement of the random alcohol testing, the railroad shall publish to each of its covered employees, individually, a written notice that they will be subject to random alcohol testing Administrator's Determination of Random Alcohol Testing Rate The minimum annual percentage rate of testing shall be 25% of covered employees. The FRA may lower the testing rate to 10% if, for two consecutive years, the violation rate is less than.5%. The FRA may increase the testing rate to 50% if, for any calendar year, the violation rate is 1% or higher. Where a railroad is required to conduct testing under more than one DOT agency, the railroad may establish separate pools for random selection Participation in Alcohol Testing A railroad shall require a covered employee to cooperate in the alcohol testing and the employee shall provide the required sample. The employee shall be excused only in the case of a documented medical or family emergency.

18 Test Result Indicating Prohibited Alcohol Concentration: Procedures Procedures for the administrative handling of a positive alcohol test are set forth in Subpart H Procedures and Safeguards For Urine Drug Testing and For Breath Alcohol Testing In general, Subpart H has incorporated by reference 49 C.F.R. Part 40, which are the overall DOT regulations concerning the procedures that apply to all modes of transportation. The changes in this subpart specifically apply to the railroad industry Standards for Urine Drug and Alcohol Testing All labs (including those performing reasonable cause testing) must be certified under DHHS guidelines. FRA and the railroad shall have the right to inspect labs. All testing under Subparts B,D,F, and G shall comply with Part 40. Each employee who is notified of selection for testing and who is not performing covered service at the time of notification must proceed to the testing site immediately. The railroad must assure that an employee who is performing covered service at the time of notification shall, as soon as possible without affecting safety, cease to perform covered service and proceed to the testing site Drug Testing Procedures Only a licensed medical professional or medical technologist or technician, or a person specially trained in the function, may collect the urine sample. No management or supervisory employee may collect the sample Drugs Tested Authorized to test for 5 drugs: marijuana, cocaine, PCP, opiates, amphetamines. In addition to the five drugs which shall be analyzed, as part of the reasonable cause testing program, a railroad may test for additional drugs only with the approval of FRA and only for substances which the DHHS has established and approved testing protocol and positive threshold. If reasonable cause testing, railroad may test for other drugs with FRA approval.

19 Review by MRO of Urine Drug Testing Results Test results shown positive by lab shall not be deemed positive until reviewed by MRO as provided in Part 40. The MRO shall complete the review of test results within not more than 10 regular working days from receipt of the lab report. In the case of a positive lab report, this review always involves an opportunity for a medical interview. After the MRO has reviewed the information, and the lab report is verified as indicating a positive, the MRO shall report the results to a designated railroad officer. The employee shall be provided a copy by delivering or mailing within 24 hours following any adverse action Confidentiality of Test Results The laboratory reporting the results of tests shall report such results only to the designated MRO of the railroad, and the employee. In addition, the MRO may not disclose medically approved drug use to non-medical railroad personnel or any third party; however, the railroad's medical officer may use such information in the context of an established medical qualifications program. This section shall not be construed to permit medical disqualification of an employee prior to the completion of the MRO review. Finally, no record of the test conducted may be used or disseminated without the voluntary written consent of the employee. There is an exception FRA or NTSB may disclose, where necessary, to consider information in accident investigation to determine probable cause Alcohol Testing Procedures Each covered employee who is notified of selection for breath alcohol testing and who is not performing a safety-sensitive function at the time of notification shall proceed to the testing site immediately. If the employee is performing a safety-sensitive function at the time of notification, the employee shall cease to perform the safety-sensitive function as soon as possible without affecting safety and proceed to the testing site. All breath alcohol testing conducted under this part shall comply with the procedures of Part 40. Subpart I Annual Report Reporting Alcohol Misuse Prevention Program Results in a Management Information System. Each railroad that has 400,000 or more total man-hours shall submit an annual report to FRA which summarizes the results of its alcohol and drug misuse prevention program annually. The reports shall be submitted no later than March 15 of each year. This section sets out the types of information which must be contained in the report, including the number of employees by employee category, the number of covered employees in each category subject to testing under the regulations of more than one

20 DOT agency, the number of tests by type of test, the number of confirmatory tests by type of tests, the number of confirmatory tests indicating alcohol greater than.04, and indicating concentration between.02 and.04, the number of persons denied a position as a covered employee following a confirmed positive test, number of covered employees confirmed positive who was returned to duty in covered positions during the reporting period, the number of employees with tests verified positive for drug and alcohol, the number of covered employees who refused to submit to a test, the number of persons who received training Reporting Drug Misuse Prevention Program Results In A Management Information System This section provides reporting requirements of FRA s Management Information System for drug testing. Subpart J Record-keeping Requirements Retention of alcohol testing records. (a) General requirement. In addition to the records required to be kept by part 40 of this title, each railroad must maintain alcohol misuse prevention program records in a secure location with controlled access as set out in this section. (b) Each railroad must maintain the following records for a minimum of five years: (1) A summary record of each covered employee's test results; and (2) A copy of the annual report summarizing the results of its alcohol misuse prevention program (if required to submit the report under (a)). (c) Each railroad must maintain the following records for a minimum of two years: (1) Records related to the collection process: (i) Collection logbooks, if used. (ii) Documents relating to the random selection process. (iii) Documents generated in connection with decisions to administer reasonable suspicion alcohol tests. (iv) Documents generated in connection with decisions on post-accident testing. (v) Documents verifying the existence of a medical explanation of the inability of a covered employee to provide an adequate specimen.

21 (2) Records related to test results: (i) The railroad's copy of the alcohol test form, including the results of the test. (ii) Documents related to the refusal of any covered employee to submit to an alcohol test required by this part. (iii) Documents presented by a covered employee to dispute the result of an alcohol test administered under this part. (3) Records related to other violations of this part. (4) Records related to employee training: (i) Materials on alcohol abuse awareness, including a copy of the railroad's policy on alcohol abuse. (ii) Documentation of compliance with the requirements of (iii) Documentation of training provided to supervisors for the purpose of qualifying the supervisors to make a determination concerning the need for alcohol testing based on reasonable suspicion. (iv) Certification that any training conducted under this part complies with the requirements for such training Retention of drug testing records. (a) General requirement. In addition to the records required to be kept by Part 40 of this title, each railroad must maintain drug abuse prevention program records in a secure location with controlled access as set forth in this section. (b) years: (1) Each railroad must maintain the following records for a minimum of five (i) A summary record of each covered employee's test results; and (ii) A copy of the annual report summarizing the results of its drug misuse prevention program (if required to submit under (a)). years. (c) (2) Each railroad must maintain the following records for a minimum of two Types of records. The following specific records must be maintained:

22 (1) Records related to the collection process: (i) Documents relating to the random selection process. (ii) Documents generated in connection with decisions to administer reasonable suspicion drug tests. (iii) Documents generated in connection with decisions on post-accident testing. (iv) Documents verifying the existence of a medical explanation of the inability of a covered employee to provide a specimen. (2) Records related to test results: (i) The railroad's copy of the drug test custody and control form, including the results of the test. (ii) Documents presented by a covered employee to dispute the result of a drug test administered under this part. (3) Records related to other violations of this part. (4) Records related to employee training: (i) Materials on drug abuse awareness, including a copy of the railroad's policy on drug abuse. (ii) Documentation of compliance with the requirements of (iii) Documentation of training provided to supervisors for the purpose of qualifying the supervisors to make a determination concerning the need for alcohol testing based on reasonable suspicion. (iv) Certification that any training conducted under this part complies with the requirements for such training Access to facilities and records. (a) Release of covered employee information contained in records required to be maintained under and must be in accordance with part 40 of this title and with this section. (For purposes of this section only, urine drug testing records are considered equivalent to breath alcohol testing records.) (b) Each railroad must permit access to all facilities utilized in complying with the

23 requirements of this part to the Secretary of Transportation, United States Department of Transportation, or any DOT agency with regulatory authority over the railroad or any of its covered employees. (c) Each railroad must make available copies of all results for railroad alcohol and drug testing programs conducted under this part and any other information pertaining to the railroad's alcohol and drug misuse prevention program, when requested by the Secretary of Transportation or any DOT agency with regulatory authority over the railroad or covered employee. Appendix A Schedule of Civil Penalties Appendix B Designation of Laboratory for Post-Accident Testing Appendix C Post-Accident Testing Specimen Collection SAFETY ADVISORY 98-3 REGARDING THE USE OF PRSECRIPTION AND OVER-THE-COUNTER DRUGS Although the federal regulations do not address prescription and over the counter drug use, FRA strongly recommends that railroads and employees follow guidelines when considering use of prescription and OTC drugs. FRA recommends that either a treating medical professional or a railroad-designated physician make a fitnessfor-work determination concerning all prescription and OTC drug use prior to permitting an employee to return to work in safety sensitive service, and including situations where and employee is concerned about the possible effects on his job performance such use. Section (b) authorizes railroads to establish reporting and approval procedures for all prescription and OTC drugs which may have a detrimental effect on safety. Additionally, FRA recommends that railroads educate their employees on these reporting and approval procedures. PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS Subpart A--Administrative Provisions Sec Who does this regulation cover? 40.3 What do the terms used in this regulation mean? 40.5 Who issues authoritative interpretations of this regulation?