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Drug and Alcohol

49 CFR Part 219/Part 40 - EMPTYING POCKETS

Q-1. “I just took a random (Federal) drug test and the collector made me empty my pockets. I thought they could’t do that?”

A. Effective August 1, 2001, the regulation changed and 40.61 (f) (4) now requires the collector to direct you to empty your pockets and display the items in them to ensure that no items are present which could be used to adulterate the specimen.

If nothing is there that can be used to adulterate a specimen, you can place the items back into your pockets. You must allow the collector to make this observation (and decision).
br>Of course you are still required to remove outer clothing such as coveralls, jacket, coat, and hat, and leave these garments and any briefcase, purse, or other personal belongings in a mutually agreeable location. If you ask for a receipt for any belongings left with the collector, the collector must provide one. You are allowed to keep your wallet.

49 CFR Part 219/Part 40 -EMPLOYEE NOTIFICATION OF LABORATORY TEST RESULTS

Q-2. "About a month ago, I was required to take a random (Federal) drug test, but I still haven't received the test result from the railroad. Isn't the railroad required to send me a letter letting me know whether the test was negative or positive?"

A. As of August 1, 2001, FRA regulations no longer require the Medical Review Officer (MRO) to notify you when your Federal test result is negative. However, FRA encourages railroads to continue to do so as a best practice.

Following a non-negative result (that is, any result that is not negative, such as a positive, adulterated, substituted, or invalid test result) the MRO must directly contact you, on a confidential basis, to discuss with you whether there is a legitimate reason for your result.

If, after talking to you, the MRO finds that there was no legitimate reason for your non-negative result, the MRO will notify the railroad to remove you from covered service.

If, however, the MRO decides after talking to you that there was a legitimate reason for your non-negative result, the MRO will report to the railroad that your result was negative. The railroad will not know that your result had originally been non-negative, and will treat your result in the way that it treats other negative results. As explained above, the MRO is not required to send you your result, since it was negative.

SHY BLADDER

Q-3. I was notified that I had been selected for a random (Federal) test after I'd just used the restroom. I know I have 3 hours to provide a specimen, but when does that 3-hour clock start?

A. You must make an attempt to provide a urine specimen even if you believe that you cannot provide the minimum amount of urine required for a Federal test (45 milliliters). Most individuals are able to provide 45 milliliters of urine even when they think they cannot urinate. The collector will direct you to enter the restroom and attempt to provide a specimen even if you notify him or her that you are unable to provide one.

The 3-hour clock does not begin to run unless and until you notify the collector that your first attempt to provide a urine specimen was unsuccessful. The Ashy bladder@ collection process begins when you return from the restroom with either an insufficient quantity of urine or an empty collection container. This requirement is addressed in section 40.193 of DOT's testing procedures. For more information, go to the Office of Drug and Alcohol Policy and Compliance section of the Department of Transportation's website, www.dot.gov.

CONSULTANT AUDITOR

Q-4 "As a railroad's program administrator, can I contract with an outside consultant to audit our FRA alcohol and drug program?"

A. Yes. In general, Parts 219 and 40 allow a railroad to contract with consultants or independent contractors (see also service agents as defined in section 40.3) for services to help it meet FRA and DOT alcohol and drug program requirements. Keep in mind, though, that use of a service agent does not relieve the railroad of the ultimate responsibility for ensuring its own compliance.

In Subpart B on Employer Responsibilities, DOT states in section 40.15(c) that " your good faith use of a service agent is not a defense in an enforcement action initiated by a DOT agency in which your alleged noncompliance with this part or a DOT agency drug and alcohol regulation may have resulted from the service agent's conduct." Additionally, if responsibility for compliance is not spelled out in the contract, section 219.9(c) allows FRA to hold a railroad and an independent contractor performing covered service for the railroad jointly and severally liable for any noncompliance. (DOT may also separately sanction the service agent for serious instances of noncompliance by issuing a Public Interest Exclusion against it (see Subpart P).)

Currently, each operating administration decides on its own whether to allow its regulated employers to use independent auditing services to inspect for program compliance. FRA allows such auditing in the railroad industry. You must check with the alcohol and drug program manager for the relevant operating administration(s) if you plan to have the consultant audit other than FRA program records.

Remember, too that an independent auditor must comply with all Part 219 and Part 40 confidentiality requirements (e.g., an auditor may not report to the railroad that an employee's test result had been downgraded).

REASONABLE SUSPICION TEST

Q-5. "I am a railroad signal foreman who is in the random alcohol and drug testing pool because I perform service covered under the Hours of Service Laws about twice a month. Recently, while performing non-covered duties as a foreman, my supervisor gave me a Federal reasonable suspicion alcohol test because he said he smelled alcohol on my breath. I thought I was only subject to a reasonable suspicion test while performing covered service. Can he do this?"

A. Yes. A railroad employee who performs covered service frequently enough to be placed in the random testing pool (at least once per quarter) is subject to all the provisions of Part 219. This includes reasonable suspicion testing, even if the employee is not performing covered service at the time of the test.

A Federal reasonable suspicion alcohol and/or drug test is required whenever a supervisor has a reasonable belief that a covered employee is impaired on the job. This belief must be based on specific observations made at the time about the appearance, behavior, speech or body odors of the employee. Such observations may include indications of the chronic and withdrawal effects of drugs.

Of course, the determination to test must be made by a supervisor who has been trained in the signs and symptoms of substance abuse. For alcohol, the testing determination must be made by at least one trained supervisor; for drugs, the testing determination must be made by two supervisors, at least one of whom is trained and on-site to make the observation.

An employee may be placed on duty for the purpose of conducting a reasonable suspicion test whenever he or she is on railroad property and subject to duty.

BREATH ALCOHOL TEST RESULT

Q-6. "My test result on a Federal random alcohol test was 0.03 and the railroad pulled me out of service for 3 months. Do I have to go through a treatment program and be subject to Federal follow-up testing before I can return to my job as a conductor?"

A. A 0.03 test result indicates that you had alcohol in your system at the time of the test. For breath test results between 0.02 and 0.039, Federal regulations require only that you be removed from covered service for at least 8 hours after your test. A Federal violation (of section 219.101 of FRA's alcohol and drug regulations) occurs only when your alcohol test result is 0.04 or higher. Since you did not violate Federal regulations, you are not subject to the Federal return-to-service and follow-up testing requirements.

However, your railroad may consider this a violation of Rule G since your test result was positive for alcohol. The railroad may take any action according to its negotiated agreements, up to and including dismissal, so long as it is not inconsistent with Federal regulations. Discipline under company policy may include removing you from covered service for more than 8 hours, requiring you to undergo company return-to-service and follow-up testing, and requiring treatment.

USE OF FEDERAL FORM FOR NON-FEDERAL TEST

Q-7. "I'm a switchman and my railroad made me take a reasonable cause drug and alcohol test because I didn't leave sufficient distance when walking around a standing cut of freight cars in the yard. The trainmaster told me these were going to be company tests because the operating rule violation didn't qualify for Federal reasonable cause testing.

The collector conducted the tests, but erroneously used Federal forms. My drug test came back positive for marijuana and I received notice that I was being removed from covered service for violating 49 CFR Part 219.102. Can the railroad charge me with a Federal violation of 219.102?"

A. From the information you provided, the railroad is in violation of 49 CFR Part 219.23 (b) and 49 CFR Part 40.47 (a) which prohibit the use of the DOT form for non-Federal testing. FRA may take action to address the wrongful use of Federal authority. However, the use of a non-Federal form is not a reason for the laboratory to reject your specimen for testing or for the railroad's Medical Review Officer to cancel your test result.

By use of the Federal (DOT) forms, the railroad provided notice to you that the tests were being required under FRA regulations. The tests therefore became Federal tests, assuming that the urine drug test occurred at a Department of Health and Human Services-certified laboratory and was tested consistent with the requirements of Part 40. Your positive drug test was therefore credible evidence, indicating a violation of FRA's prohibition section of 219.102 which prohibits a covered service employee from using a controlled substance at any time, whether on duty or off duty.

The railroad would therefore be required to follow the Federal return-to-duty procedures per 219.104, including removing you from covered service, notifying you of the reason for this action, and providing you with an opportunity for a hearing upon your request. The railroad must also comply with the Federal return to duty requirements (Substance Abuse Professional evaluation, Federal return-to-duty test(s), and Federal follow-up tests).

FRA POST ACCIDENT TESTING - Highway-Rail Grade Crossing Accident in a Railroad Yard

Q-8. Our railroad just had an employee fatality to an on-duty non-covered service employee who was killed when a yard switching crew was shoving freight cars which struck him while he was inside a company pickup truck. The crossing in question is inside a switching yard and used primarily for mechanical employees to cross yard tracks to conduct air brake inspections. Does this event fall under the exception from FRA post-accident testing as a highway-rail grade crossing accident?

A. A highway-rail grade crossing collision between railroad rolling stock and a motor vehicle or other highway conveyance at a highway-rail grade crossing is one of the three "exceptions" from FRA post-accident testing. One rationale for this exception is that a heavy train operating at high speeds requires a long stopping distance that allows the crew insufficient time to avoid an accident by the time they have spotted a motor vehicle on the railroad tracks. The other rationale is that motor vehicle operators cause the vast majority of these accidents since the train has the right of way over motor vehicles at public crossings.

In this case, neither of these rationales applies since yard crews involved in railroad switching operations operate at slower speeds, require shorter stopping distances, and are expected to be able to stop within half the range of their vision. Other railroad operating rules are in place to protect this shoving movement from collisions within the railroad yard.

Therefore, in this scenario, the highway-rail grade crossing collision exception would not apply. The responding railroad representative is then required to make a good faith determination using post-accident testing criteria. This would appear to be a Fatal Train Incident which would require FRA post-accident testing of the fatally injured employee, and consideration of testing of the involved train crewmembers and/or other involved covered service employees.

A Form FRA F 6180.57 (Highway-Rail Grade Crossing Accident/Incident Report) must be completed for collisions/impacts between on-track equipment and users of designated crossing sites within industries or railroad yards. Therefore, in this case, while the event does not fall within the exception from post-accident testing, the collision is still required to be reported to FRA on the specified form.

FEDERAL RANDOM DRUG & ALCOHOL TESTING - Alphabetical Listings

Q-9. "Our railroad uses a computer program to make the random selections by employee identification number. When the monthly selection listing is generated, it prints out the selections in alphabetical order by the employee names corresponding to those identification numbers. Is this okay?"

A. Your railroad is using one of the two acceptable methods for making selections for Federal random testing (i.e, computer program or random number table). However, if the computer prints the selected employees in alphabetical order, this establishes a pattern which could become discernable to the covered service employees. For example, the employees may begin to notice that those employees whose names begin with the first letters of the alphabet are always tested early in the month and those employees whose names start with the last letters of the alphabet appear to be tested towards the end of the month. Another possibility is that if an employee whose name begins with the letter "C"is aware that another employee whose name begins with the letter "D" is tested on the 7th day of the month, the employee may deduce that he or she is free from being random tested for the rest of that month.

Railroad random testing programs must ensure to the maximum extent practicable that each covered employee perceives the possibility that a random alcohol and/or drug test may be required at any time the employee reports for work and at any time during the duty tour.

Therefore, it is recommended that your railroad use a computer program that does not print out the names in alphabetical order. If you do not elect to change your software, then another neutral, objective method must subsequently be used to de-alphabetize the selected names.

Remember that any records necessary to document random selections must be retained for not less than two years. This includes not only the selection lists, but a printout or computer file of the employees in the random testing pool at the time each selection listing is made.

FEDERAL PRE-EMPLOYMENT DRUG TESTING

Q-10. "For four years I was a track laborer on the XYZ Railroad. The XYZ gave me a Federal pre-employment drug test because my job required me to hold a Commercial Driver=s License (CDL). Two years ago I quit the XYZ and went to work for the ABC Railroad. Now I am applying to the XYZ to get rehired, this time as a conductor. Is the XYZ railroad required to give me another Federal pre-employment drug test before they put me back in covered service?"

A. Under FRA regulations, a railroad has a one-time only Federal pre-employment drug test requirement for each of its covered service employees (regardless of whether the pre-employment test is for a new employee or for a first-time transfer to covered service). This is true even if there are breaks in the employee's covered service with the railroad.

In your case, the XYZ Railroad has already met FRA's one-time requirement for a Federal pre-employment drug test. You therefore do not need a second Federal pre-employment drug test to be utilized by the XYZ Railroad in covered service, despite your two-year break in covered service with them. You should remember three things, however. (1) FRA's one-time only Federal pre-employment drug test requirement applies only to the XYZ Railroad, since XYZ is the only employer that has already conducted a Federal pre-employment drug test on you. If you were to apply for a covered service position at the ABC Railroad, for example, ABC would have to conduct its own Federal pre-employment drug test before placing you in covered service. (2) The one-time only Federal pre-employment drug test requirement for an employer applies only to positions covered by FRA regulations. If you were to apply to XYZ Railroad for a position covered by FAA or FMCSA regulations, for example, XYZ would have to conduct a second Federal pre-employment drug test before using you in covered service. (3) FRA regulations do not prohibit XYZ Railroad from conducting its own pre-employment tests on you under company authority.

ALCOHOL SCREENING TEST

Q-11. An employee is selected for Federal random alcohol testing. On the screening test the Evidential Breath Testing Device (EBT) registers a 0.000 alcohol reading but fails to print out the result. In this circumstance, is it permissible for the Breath Alcohol Technician (BAT) to write in the employee's screenng test result in Step 3 of the employee's Alcohol Testing Form (form), even though the form says the BAT is "only to write in [this] space if the device is not designed to print?" If the BAT fixes the device and later obtains a print-out of the employee's screening test result, should the BAT attach this print-out to the employee's form?

A. Part 40 requires the BAT to affix an employee's printed test results to the employee's form, but in this circumstance the BAT should write the employee's screening test result in Step 3 of the form since a recorded result is necessary. The BAT should also note the EBT's failure to print on the remarks line of the form. It is not necessary to affix a printout of the screening test result even if it can be later retrieved.

Section 40.267 of the DOT testing procedures (49 CFR Part 40) lists "fatal flaws" which affect the integrity of an employee's alcohol test result and require the test to be cancelled. An EBT failure to print out a screening test result is not a tatal falw, regardless of the test result. If the screening result is negative, the screening test result controls and the employee's Federal test is negative. No further testing is required. If the screening test result is positive, the employee must undergo a confirmation test within 15-30 minutes and the confirmation test result controls. The employee's Federal test is negative if the confirmation test is negative and positive if the confirmation test is positive. For this reason, it is a fatal flaw if an EBT fails to print out the confirmation test result.

PROBATIONARY EMPLOYEE

Q-12. "I just started working for the ABC Railroad two months ago as a brakeman. Last week I had a positive random drug test and I received a letter from the railroad saying that my application had been rejected. I talked to my union local chairman and he said there was nothing I could do since I am considered a probationary employee by the railroad for the first three months."

A. If this was a Federal positive random drug test, you were in violation of 49 CFR Part 219.102. While FRA does not get involved in discipline matters, the minimum the railroad is required to do is make sure that you understand (have been informed, for example, via the railroad's distribution of the required educational materials per 219.23) that you have a right to an opportunity for a hearing upon your request. Prior to or upon withdrawing you from covered service, the railroad must also provide notice to you of the reason for this action.

There is no prohibition against the railroad choosing to terminate your employment and to not return you to covered service. However, at a minimum they must provide you with a listing of available Substance Abuse Professionals (SAP). You cannot perform any DOT safety-sensitive duties for any employer until and unless you complete the SAP evaluation, referral, and education/ treatment process set forth in 49 CFR Part 40, Subpart O, and in applicable DOT agency regulations. The first step in this process is a SAP evaluation.

POSSESSEION OF ALCOHOL OR DRUGS

Q-13. A railroad supervisor boards a train while it is stopped at a red block signal. As he approaches the locomotive door, he sees the engineer quickly remove a bottle of Budweiser beer from the icebox and place it in his suitcase. The supervisor charges the employee with "possession of alcohol," in violation of section 219.101 and the railroad's operating rules. Should the supervisor also arrange for a Federal reasonable suspicion alcohol test to be conducted?

A. While the engineer has violated section 219.101(a)(1) (prohibiting on-duty use or possession of alcohol), possessing alcohol while on-duty is not in itself evidence of alcohol misuse. To conduct a Federal reasonable suspicion alcohol test under section 219.300(a)(1), the supervisor must have specific, contemporaneous, and articulable observations concerning the appearance, behavior, speech or body odors of the engineer. In this scenario, the supervisor does not have sufficient grounds to conduct a Federal reasonable suspicion test; however, the railroad does not need an alcohol test result to prove that the engineer was in violation of section 219.101(a)(1). To prove a possession violation, the railroad need only prove that the bottle contained an alcoholic substance and was in the possession of the engineer.

Q-14. Same scenario, except the railroad supervisor observes a crack pipe fall out of the engineer's pocket. Should the supervisor arrange for a Federal reasonable suspicion drug test to be conducted?

A. As with question 1, the supervisor cannot order a reasonable suspicion drug test to be conducted since 219.300(a)(2) requires the supervisor's suspicion to be based on observations of the engineer exhibiting signs and symptoms of illegal drug use. Similarly, to prove a violation of section 219.101(a)(1) (prohibited on-duty use or possession of a controlled substance(s)), the railroad need only prove that there was cocaine in the crack pipe (since possession of drug paraphernalia is not in itself a violation) and that the crack pipe was in the possession of the engineer. While the possession of a crack pipe does not in itself violate FRA regulatioins, the railroad should, at a minimum, refer the engineer to an Employee Assistance Professional to determine if the engineer has an active substance abuse problem.

Q-15. In the above scenarios, could the railroad test the engineer under company policy?

A. In both scenarios, Part 219 does not prohibit the railroad from conducting company tests under its own authority.

GENERAL ISSUE

Q-16. Under Department of Health and Human Services (HHS) Health Insurance Portability and Accountability Act of 1996 (HIPAA) rules, are employers and their service agents in the Department of Transportation (DOT) drug and alcohol testing program required to obtain employee written authorization in order to disclose drug and alcohol testing information?

A. No.

HHS HIPAA rules do not require employers and service agents in the DOT drug and alcohol testing program to obtain written employee authorization to disclose drug and alcohol testing information required by 49 CFR Part 40 and other DOT agency drug and alcohol testing rules.

DOT-required drug and alcohol testing information differs significantly from health information covered by HIPAA rules (45 CFR Part 164). The DOT program is concerned only with employees' compliance with DOT safety regulations, and not with preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care or the past, present, or future physical or mental health or condition of an individual.

Even if DOT drug and alcohol testing information is viewed as protected health information under Part 164, however, it is not necessary, under §164.512(a), to obtain employee written authorization where Federal law requires the use or disclosure of otherwise protected health information.

Use or disclosure of the DOT drug and alcohol testing information without a consent or authorization from the employee is required by the Omnibus Transportation Employees Testing Act of 1991, 49 CFR Part 40, and DOT agency drug and alcohol testing regulations, unless otherwise stipulated by 49 CFR Part 40.

Consequently, 45 CFR §164.512 enables any employer or service agent in the DOT program to disclose the information without the employee's authorization. For example:

-- Employers need no employee authorizations to conduct DOT tests.

-- Collectors need no employee authorizations to perform DOT urine collections, to distribute Federal Drug Testing Custody and Control Forms, or to send specimens to laboratories.

-- Screening Test Technicians and Breath Alcohol Technicians need no employee authorizations to perform DOT saliva or breath alcohol tests (as appropriate), or to report test results to employers.

-- Laboratories need no employee authorizations to perform DOT drug and validity testing, or to report test results to Medical Review Officers (MRO).

-- MROs need no employee authorizations to verify drug test results, to discuss alternative medical explanations with prescribing physicians and issuing pharmacists, to report results to employers, to confer with Substance Abuse Professionals (SAP) and evaluating physicians, or to report other medical information (see §40.327).

-- SAPs need no employee authorizations to conduct SAP evaluations, to confer with employers, to confer with MROs, to confer with appropriate education and treatment providers, or to provide SAP reports to employers.
-- Consortia/Third Party Administrators need no employee authorizations to bill employers for service agent functions that they perform for employers or contract on behalf of employers.
-- Evaluating physicians need no employee authorizations to report evaluation information and results to MROs or to employers, as appropriate.

HHS agrees that there is no conflict between the HIPPA rules and DOT requirements, and indicated so in the preamble to Part 164 [65 Federal Register 82593-94; December 20, 2000].

Q-17. Under what circumstnces may urine from an injured employee be taken through a catheter for FRA testing?

A. Whether urine from an injured employee may be taken through a catheter for an FRA test depends on three variables:

1.  Whether the employee has already been catherterized for medical purposes;
2.  Whether the employee is unconscious or not; and
3.  Whether the test is conducted under Subpart C (post-accident testing) or Subpart D;
    (reasonable suspicion or reasonable cause) of FRA's alcohol and drug regulations
    (49 CFR Part 219).

--  Urine may not be collected (whether by catheterization or other means) from an unconscious
    employee for FRA reasonable suspicion or reaonsable cause testing. In its testing
    procedures (49 CFR Part 40), the Department of Transportation (DOT) prohibits urine from
    being taken from an unconscious employee whether by catheterization or other means
    (see section 40.61).

--  Urine may be collected from a conscious employee who has been catheterized for medical
    purposes (independent of the requirement to provide a urine specimen) for FRA reasonable
    suspicion or reaonsable cause testing. Part 40 permits urine to be taken from a conscious
    employee who has already been catheterized for medical purposes, so long as the urine
    collection is properly documented. (See September 2001 Q&A's issued by the DOT Office of
    Drug and Alcohol Policy and Compliance).

--  Under section 219.11(a), an employee is deemed to have consented to FRA testing by the act of
    performing covered service for a railroad. A conscious employee may not refuse to provide
    urine from his/her catheter bag.

--  Urine may be collected from an employeee who has been catheterized for medical purposes,
    whether conscious or unconscious, for FRA post-accident testing. Because Part 40
    applies to FRA reasonable suspicion and reaonsable cause testing, but does not apply to FRA
    post-accident testing (see section 219.701), section 40.61 does not prohibit the taking of urine
    from an unconscious employee for a post-accident test. Blood may also be taken from an
    injured employee, whether conscious or unconscious, subject to a
    physician's determination that drawing the required amount of blood for a post-accident test is
    consistent with the employee's health (see 219.203(e)).

--  An employee, whether conscious or unconscious, may not be catheterized solely for the
    purpose of providing an FRA specimen.