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Operator Drug- and Alcohol-Testing Across Modes (2012)

Chapter: CHAPTER FOUR Specific Regulations by Mode

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Suggested Citation:"CHAPTER FOUR Specific Regulations by Mode." National Academies of Sciences, Engineering, and Medicine. 2012. Operator Drug- and Alcohol-Testing Across Modes. Washington, DC: The National Academies Press. doi: 10.17226/14635.
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Suggested Citation:"CHAPTER FOUR Specific Regulations by Mode." National Academies of Sciences, Engineering, and Medicine. 2012. Operator Drug- and Alcohol-Testing Across Modes. Washington, DC: The National Academies Press. doi: 10.17226/14635.
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Suggested Citation:"CHAPTER FOUR Specific Regulations by Mode." National Academies of Sciences, Engineering, and Medicine. 2012. Operator Drug- and Alcohol-Testing Across Modes. Washington, DC: The National Academies Press. doi: 10.17226/14635.
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Suggested Citation:"CHAPTER FOUR Specific Regulations by Mode." National Academies of Sciences, Engineering, and Medicine. 2012. Operator Drug- and Alcohol-Testing Across Modes. Washington, DC: The National Academies Press. doi: 10.17226/14635.
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Suggested Citation:"CHAPTER FOUR Specific Regulations by Mode." National Academies of Sciences, Engineering, and Medicine. 2012. Operator Drug- and Alcohol-Testing Across Modes. Washington, DC: The National Academies Press. doi: 10.17226/14635.
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Suggested Citation:"CHAPTER FOUR Specific Regulations by Mode." National Academies of Sciences, Engineering, and Medicine. 2012. Operator Drug- and Alcohol-Testing Across Modes. Washington, DC: The National Academies Press. doi: 10.17226/14635.
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13 CHAPTER FOUR SPECIFIC REGULATIONS BY MODE tive years for the entire industry. For the year 2011, the mini- mum random drug-testing rate was set at 25%. Types of tests for alcohol: Pre-employment (autho- rized, not mandated), random, postaccident, reasonable cause, return-to-duty, and follow-up. The minimum annual percentage rate for random alcohol testing is based on the positive rate for the 2 prior consecutive years for the entire industry. For the year 2011, the minimum random alcohol testing rate was set at 10%. Definition of accident requiring testing: Accident means an occurrence associated with the operation of an aircraft that takes place between the time any person boards the aircraft with the intention of flight and all such persons have disem- barked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage. Reasonable cause determination (drugs): Two of the employee’s supervisors, one of whom is trained, shall sub- stantiate and concur in the decision to test the employee. If the employer is not an air carrier operating under 14 CFR Part 121 and has 50 or fewer employees, a single trained supervisor can make the determination. A trained supervi- sor makes the determination based on specific contempo- raneous physical, behavioral, or performance indicators of probable drug use. Reasonable suspicion determination (alcohol): One trained supervisor makes the determination based on spe- cific, contemporaneous, articulable observations concerning the employee’s appearance, behavior, speech, or body odors. Preduty alcohol prohibition: Eight hours prior to per- formance of flight crewmember duties, flight attendant duties, and air traffic controller duties. Four hours prior to performance of other duties. Actions for BACs 0.020–0.039: If the employer chooses to return the employee to covered services within 8 h, the BAC retest must be below 0.020. Employee training (drugs): An employer must train all employees who perform safety-sensitive duties on the effects and consequences of prohibited drug use on personal health, safety, and work environment, and on the manifestations To comply with DOT requirements, each DOT agency must specify aspects of its drug- and alcohol-testing program not directly covered in 49 CFR Part 40. At a minimum, each agency is required to specify the employees in safety-sensi- tive positions that must be drug and alcohol tested, the types of tests that must be conducted, the minimum annual per- centage rate for random drug testing, and record retention periods. The following sections report the specific regula- tions by mode (see Table 5), as described in the DOT guide- lines for the SAP (2009). TABLE 5 REGULATIONS BY MODE Mode Agency Regulation Aviation Federal Aviation Administration (FAA) 14 CFR Part 120 Maritime United States Coast Guard (USCG) 46 CFR Parts 4, 5, and 16 Motor Carrier Federal Motor Carrier Safety Administration (FMCSA) 49 CFR Part 382 Pipelines Pipeline and Hazard- ous Materials Safety Administration (PHMSA) 49 CFR Part 199 Public Transit Federal Transit Administration (FTA) 49 CFR Part 655 Rail Federal Railroad Administration (FRA) 49 CFR Part 219 AVIATION The aviation industry, regulated by the FAA, has approxi- mately 397,960 employees subject to testing (Swart, per- sonal communication, Nov. 15, 2010). Employees who must be tested: Flight crew members, flight attendants, flight instructors, aircraft dispatchers, maintenance personnel, ground security coordinators, avia- tion screeners, and air traffic controllers. Types of tests for drugs: Pre-employment, random, postaccident, reasonable cause, return-to-duty, and follow- up. The minimum annual percentage rate for random drug testing is based on the positive rate for the 2 prior consecu-

14 and behavioral cues that may indicate drug use and abuse. Employers must also implement an education program for safety-sensitive employees by displaying and distributing informational materials, a community service hotline tele- phone number for employee assistance, and the employer’s policy regarding drug use in the workplace. The policy must include information regarding the consequences under the rule of using drugs while performing safety-sensitive func- tions, receiving a verified positive drug test result, or refus- ing to submit to a drug test required under the rule. Employee training (alcohol): Employers must provide covered employees with educational materials that explain the alcohol misuse requirements and the employer’s poli- cies and procedures with respect to meeting those require- ments. The information must be distributed to each covered employee and must include information such as the effects of alcohol misuse on an individual’s health, work, and personal life; signs and symptoms of an alcohol problem; and the con- sequences for covered employees found to have violated the regulatory prohibitions. Supervisor training (drugs): One hour of training is required on the specific, contemporaneous physical, behav- ioral, and performance indicators of probable drug use. In addition, supervisors must receive employee training as defined earlier. Reasonable recurrent training is also required. Supervisor training (alcohol): One hour of training is required on the physical, behavioral, speech, and perfor- mance indicators of probable alcohol misuse. Reportable employee drug and alcohol violation: Each employer must notify the FAA about any covered employee who holds a certificate issued under 14 CFR Parts 61 (pilots and flight and ground instructors), 63 (flight engineers and navigators), or 65 (air traffic control tower operators, air- craft dispatchers, airframe or power plant mechanics, and repairmen) who has refused to take a drug or alcohol test. The MRO may report a positive or refusal (i.e., adulterated results, substituted results, or no medical explanation for pro- viding an insufficient specimen) on behalf of the employer. Each employer must notify the FAA about any safety-sen- sitive employee who is required to hold an airman medical certificate issued under 14 CFR Part 67 who has a positive drug test result, an alcohol test result of 0.040 or greater, or who has refused to submit to testing. The MRO may report a positive or refusal (i.e., adulterated results, substituted results, or no medical explanation for providing an insuf- ficient specimen) on behalf of the employer. Each employer must not permit an employee who is required to hold a medical certificate under Part 67 to per- form a safety-sensitive function to resume that duty until the employee has received a new medical certificate issued by the FAA Federal Air Surgeon and the employer has ensured that the employee meets the return-to-duty requirements of Part 40. (Medical certificates are not operating certificates, but employees cannot continue to perform airman duties without a medical certificate.) According to FAA regulation 14 CFR Part 120, Subpart E, Section 120.113(d), when a MRO verifies a drug test result or a SAP performs the initial evaluation, he or she must ask the employee whether he or she holds or would be required to hold an airman medical certificate issued under 14 CFR Part 67 of this chapter to perform a safety-sensitive function for the employer. (This requirement applies only to MROs and SAPs who provide services for FAA-regulated employers.) If the employee answers in the affirmative, the employee must obtain an airman medical certificate issued by the Federal Air Surgeon dated after the drug and/or alcohol violation date. The SAP must wait until the employee obtains the air- man medical certificate before reporting to an employer that the employee demonstrated successful compliance with the SAP’s treatment and/or education recommendations. MARITIME The maritime industry, regulated by the USCG, has approxi- mately 100,955 employees subject to testing (Swart, personal communication, Nov. 15, 2010). Note that the USCG trans- ferred to the Department of Homeland Security in 2003, but still conducts drugs testing under the DOT rules. Employees who must be tested: A person who is on board a vessel acting under the authority of a license, cer- tificate of registry, or merchant mariner’s document. Also, a person engaged or employed on board a U.S.-owned vessel and such vessel is required to engage, employ, or be oper- ated by a person holding a license, certificate of registry, or merchant mariner’s document. Types of tests for drugs: Pre-employment, periodic, ran- dom, reasonable cause, post-serious marine incident (SMI), return-to-duty, and follow-up. For the year 2011, the mini- mum random drug-testing rate was set at 50%. Types of tests for alcohol: 49 CFR Part 40 alcohol-test- ing requirements do not apply to the maritime industry. 46 CFR Part 4.06 requires post-SMI chemical testing for alco- hol use. 33 CFR Part 95.035 allows for a marine employer or a law enforcement officer to direct an individual to undergo a chemical test for intoxicants when reasonable cause exists or a marine casualty has occurred. Definition of accident requiring testing: In general, an SMI is a discharge of 10,000 gal or more of oil into the navigable waters of the United States, whether or not

15 resulting from a marine casualty; a discharge of a report- able quantity of a hazardous substance into the naviga- ble waters or into the environment of the United States, whether or not resulting from a marine casualty; or a marine casualty or accident required to be reported to the Coast Guard, involving a vessel in commercial service, and resulting in any of the following: one or more deaths, an injury to any person (including passengers) that requires professional medical treatment beyond first aid, and, in the case of a person employed on board a commercial vessel, that renders the person unable to perform routine vessel duties; damage to property in excess of $100,000; actual or constructive total loss of any inspected vessel; or actual or constructive total loss of any uninspected, self-propelled vessel of 100 gross tons or more. Reasonable suspicion determination (drugs): The marine employer must have a reasonable and articulable belief that the individual has used a dangerous drug. This belief can be based on the direct observation of specific, con- temporaneous physical, behavioral, or performance indica- tors of probable use and, where practicable, based on the observation of two persons in supervisory positions. Reasonable cause determination (alcohol): The employee was directly involved in the occurrence of a marine casualty, or the individual operated a vessel and the effect of the intoxicant(s) consumed by the individual on the person’s manner, disposition, speech, muscular movement, general appearance, or behavior is apparent by observation. Preduty alcohol use prohibition: Four hours before per- formance of scheduled duty. Actions for BACs 0.020–0.039: Not applicable. Employee training: Employers must provide education with display and distribution of informational materials and a community service hotline telephone number. Dis- tribution to each employee of the employer’s policy regard- ing the use of drugs and alcohol is mandatory. Training must include the effects of drugs and alcohol on personal health, safety, and work environment, and the manifesta- tions and behavioral cues that may indicate drug and alco- hol use and abuse. Supervisor training: One hour of training is required on the effects of drugs and alcohol on personal health, safety, and work environment, and the manifestations and behav- ioral cues that may indicate drug and alcohol use and abuse. Reportable employee drug and alcohol violations: Results of all post-SMI tests and positive drug test results for all mariners who hold a license, certificate of registry, or merchant mariner’s document must be reported to the near- est Coast Guard Officer in Charge, Marine Inspection. MOTOR CARRIERS The trucking industry, regulated by the FMCSA, has approximately 802,740 employees subject to testing (Swart, personal communication, Nov. 15, 2010). Employees who must be tested: Drivers requiring a commercial driver’s license (CDL) to drive commercial motor vehicles (CMV). A CMV is a vehicle with a gross weight rating of 26,001 or more pounds, is designed to trans- port 16 or more occupants (including the driver), or is of any size and is used in the transport of hazardous materials and is required to be placarded. Types of tests for drugs: Pre-employment, random, postaccident, reasonable cause, return-to-duty, and follow- up. The minimum annual percentage rate for random drug testing is based on the positive rate for the two prior con- secutive years for the entire industry. For the year 2011, the minimum random drug-testing rate was set at 50%. Types of tests for alcohol: Pre-employment (autho- rized, not mandated), random, postaccident, reasonable cause, return-to-duty, and follow-up. The minimum annual percentage rate for random alcohol testing is based on the positive rate for the two prior consecutive years for the entire industry. For the year 2011, the minimum random alcohol testing rate was set at 10%. Definition of accident requiring testing: Any accident involving a fatality, any accident with bodily injury with immediate medical treatment away from the scene and a citation given to the CMV driver, and any instance of dis- abling damage to any motor vehicle requiring tow away and a citation given to the CMV driver. Reasonable suspicion determination: One trained supervisor or company official can make the decision based on specific, contemporaneous, articulable observations con- cerning the appearance, behavior, speech, or body odors of the employee. Preduty alcohol use prohibition: Drivers cannot per- form safety-sensitive functions within 4 h after using alco- hol. No employer having actual knowledge that a driver has used alcohol within 4 h can permit a driver to perform or continue to perform safety-sensitive functions. Actions for BACs 0.020–0.039: The employee cannot be returned to duty until the next day or the start of the employ- ee’s next regularly scheduled duty period, but not less than 24 h following the test. Employee training: Employer must provide educational materials explaining drug and alcohol regulatory require- ments and employer’s policies and procedures for meeting

16 regulation requirements. Distribution to each employee of these educational materials and the employer’s policy regarding the use of drugs and alcohol is mandatory. Supervisor training: One hour of training is required on the specific, contemporaneous physical, behavioral, and performance indicators of probable drug use. One hour of training is also required on the specific, contemporaneous physical, behavioral, and performance indicators of prob- able alcohol use. Reportable employee drug and alcohol violations: No requirements to report violations to FMCSA. Penalties and consequences: Any employer or driver who violates the requirements of 49 CFR Part 382 or 49 CFR Part 40 is subject to the civil and/or criminal penalty. Other: The background check period for a job candidate’s previous drug- and alcohol-testing records for FMCSA is 3 years. Drivers are prohibited from using alcohol for 8 h fol- lowing an accident or until they have undergone a postac- cident alcohol test, whichever occurs first. PIPELINE AND HAZARDOUS MATERIALS The pipeline industry, regulated by the PHMSA, has approx- imately 122,962 employees subject to testing (Swart, per- sonal communication, Nov. 15, 2010). Employees who must be tested: A person who performs on a pipeline or liquefied natural gas (LNG) facility in opera- tion, maintenance, or emergency-response function. Types of tests for drugs: Pre-employment, random, rea- sonable cause, postaccident, return-to-duty, and follow-up. For the year 2011, the minimum random drug-testing rate was set at 25%. Types of tests for alcohol: Postaccident, reasonable sus- picion, return-to-duty, and follow-up. Definition of accident requiring testing: An accident is one involving gas pipeline facilities or LNG facilities or involving hazardous liquid or carbon dioxide pipeline facilities. Reasonable suspicion determination: One trained super- visor can make the decision based on signs and symptoms. Reasonable cause determination: One trained supervi- sor can make the decision based on reasonable and articu- lable belief that the employee is using prohibited drugs on the basis of specific, contemporaneous physical, behavioral, or performance indicators of probable drug use. Preduty alcohol use prohibition: Four hours before per- formance of duty. Actions for BACs 0.020–0.039: If the employer chooses to return the employee to covered service within 8 h, the BAC retest must be below 0.020. Employee training (drugs): Employer must provide EAP education with display and distribution of informational materials, display and distribution of a community service hotline telephone number, and display and distribution of the employer’s policy regarding the use of prohibited drugs. Employee training (alcohol): Employer must develop materials that explain policies and procedures (as well as names of those who can answer questions about the pro- gram) and distribute them to each covered employee. Supervisor training: One hour of training is required on the specific, contemporaneous physical, behavioral, and performance indicators of probable drug use. One hour of training is also required on the specific, contemporaneous physical, behavioral, and performance indicators of probable alcohol use. Reportable employee drug and alcohol violations: No requirements to report violations to PHMSA. PUBLIC TRANSIT The public transit industry, regulated by the FTA, has approximately 277,793 employees subject to testing (Swart, personal communication, Nov. 15, 2010). Employees who must be tested: Employees performing safety-sensitive functions, including persons who perform a revenue vehicle operation, revenue vehicle and equipment maintenance, revenue vehicle control or dispatch (optional), CDL nonrevenue vehicle operation, or armed security duties. Types of tests for drugs: Pre-employment, random, rea- sonable suspicion, postaccident, return-to-duty, and follow- up. For the year 2011, the minimum random drug-testing rate was set at 25%. Types of tests for alcohol: Pre-employment (optional), random, reasonable suspicion, postaccident, return-to-duty, and follow-up. For the year 2011, the minimum random alco- hol testing rate was set at 10%. Definition of accident requiring testing: Any accident involving a fatality requires testing. Testing following a non- fatal accident is discretionary: If the employer can show that the employee’s performance could not have contributed to the accident, no test is needed. Nonfatal accidents that may

17 require testing must have disabling damage to any vehicle or immediate medical attention away from the scene to meet the testing threshold. Reasonable suspicion determination: One trained supervisor or company official can make the decision based on specific, contemporaneous, articulable observations con- cerning the appearance, behavior, speech, or body odors of the employee. Preduty alcohol use prohibition: Four hours before per- formance of duty. Actions for BACs 0.020–0.039: If the employer chooses to return the employee to covered service within 8 h, the BAC retest must be below 0.020. Employee training: Employer must provide education with display and distribution of informational materials and a community service hotline telephone number, if available. One hour of training on the effects and consequence of prohibited drug use on personal health, safety, and the work environment, and on the signs and symptoms that may indi- cate prohibited drug use. Distribution to each employee of the employer’s policy regarding the use of drugs and alcohol with signed receipt is mandatory. Supervisor training: One hour of training is required on the specific, contemporaneous physical, behavioral, and performance indicators of probable drug use. One hour of training is also required on the specific, contemporaneous physical, behavioral, and performance indicators of probable alcohol use. Reportable employee drug and alcohol violations: No requirements to report violations to FTA. Other: Anyone with direct or immediate supervisory authority over an employee may not collect that person’s urine, saliva, or breath. RAIL The railroad industry, regulated by the FRA, has approxi- mately 105,564 employees subject to testing (Swart, per- sonal communication, Nov. 15, 2010). Employees who must be tested: A person who performs hours of service functions at a rate sufficient to be placed into the railroad’s random testing program. Categories of person- nel who normally perform these functions are locomotive engineers, trainmen, conductors, switchmen, locomotive hostlers/helpers, utility employees, signalmen, operators, and train dispatchers. Types of tests for drugs: Pre-employment, random, rea- sonable suspicion, reasonable cause, postaccident, return-to- duty, and follow-up. For the year 2011, the minimum random drug-testing rate was set at 25%. Types of tests for alcohol: Pre-employment (optional), random, reasonable suspicion, reasonable cause, postacci- dent, return-to-duty, and follow-up. For the year 2011, the minimum random alcohol testing rate was set at 10%. Definition of accident requiring testing: Any major train accident (one that results in a fatality or a release of hazardous material accompanied by an evacuation or a reportable injury resulting from the hazardous material release or damage to railroad property of $1,000,000 or more), an impact accident (one that results in a reportable injury or damage to railroad property of $150,000 or more), fatal train incident (one that involves a fatality to an on-duty railroad employee), and pas- senger train accident (one that involves a reportable injury to any person in a passenger train accident). The postaccident testing rule requires urine and blood specimen collection from surviving employees and also tis- sue from deceased employees (these collection procedures go well beyond the normal Part 40 procedures). For surviv- ing employees, these specimens are collected at an inde- pendent medical facility. FRA regulation, 49 CFR Part 219 Subpart C, stipulates the level of events requiring testing and who will be tested. The collected specimens are analyzed only at FRA’s contract laboratory. Postaccident testing pro- vides FRA with accident investigation and usage data. Reasonable suspicion determination: One trained supervisor can make the decision for alcohol testing based on specific, contemporaneous, articulable observations con- cerning the appearance, behavior, speech, or body odors of the employee. A decision to conduct a drug test requires two supervisors (only the on-site supervisor must be trained). Preduty alcohol use prohibition: Four hours before performance of duty or after receiving notice to report for covered service, whichever is the shorter period. Actions for BACs 0.020–0.039: The employee cannot be returned to duty until the start of the employee’s next regu- larly scheduled duty period, but not less than 8 h following the test. Employee training: Employer must provide education materials that explain the requirements of the FRA rules as well as railroad policies and procedures with respect to meeting those requirements. Supervisor training: A total of 3 h of training is required: 1 h on the specific, contemporaneous physical, behavioral, and performance indicators of probable drug use; 1 h of sim-

18 Refusal to provide a specimen results in a mandatory minimum 9-month removal from covered service. Dur- ing this 9-month period, there is no prohibition against the employee working in a noncovered service position if agree- able to the employer. Locomotive engineers (or other employees certified as locomotive engineers at the time of the alcohol or drug viola- tion) require both alcohol and drug return-to-duty tests and both alcohol and drug follow-up tests. Locomotive engineers who have a driving under the influ- ence (DUI) violation are required by Part 240 to be evalu- ated to determine whether they have an active substance abuse disorder. A DUI is not considered to be a violation of FRA regulations if it occurred during the employee’s off- duty time; therefore, any testing would be conducted under employer authority. Employers must provide both a voluntary referral pro- gram that allows an employee to self-refer for treatment and a coworker report program that allows one employee to refer another for treatment before the employer identifies a problem. Both of these EAPs guarantee that employees will retain their jobs if they cooperate and complete the required rehabilitation program. For an engineer who is in a voluntary referral program, the counseling professional must report an engineer’s refusal to cooperate in the recommended course of counseling or treatment to the employer. ilar training on probable indicators of alcohol use; and 1 h of training on how to determine whether an accident qualifies for postaccident testing. Reportable employee drug and alcohol violations: No requirements to report violations to FRA. Engineers, who are the only certificate holders in the rail industry, will have their certificates reviewed for suspension or revocation by the employer when an FRA violation occurs. Note that an FRA alcohol violation occurs at 0.04% or greater. When a locomo- tive engineer is in a voluntary referral program, the counsel- ing professional must report an engineer’s refusal to cooperate in the recommended course of counseling or treatment. Penalties and consequences: A comprehensive penalty schedule lists the civil penalties associated by various viola- tions. The fines range from $1,000 to $10,000. Reporting: Each railroad that has a total of 400,000 or more employee hours (including hours worked by all employ- ees of the railroad, regardless of occupation, not only while in the United States but also while outside the United States) must submit to FRA by March 15 of each year a report covering the previous calendar year (January 1–December 31), summariz- ing the results of its control of alcohol and drug use program. Other: Anyone with direct or immediate supervisory authority over an employee may not collect that person’s urine, saliva, or breath.

Next: CHAPTER FIVE Alcohol- and Drug-Testing Statistics »
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TRB’s Commercial Truck and Bus Safety Synthesis Program (CTBSSP) Synthesis 23: Operator Drug- and Alcohol-Testing Across Modes explores practices used to deter drug and alcohol use among operators within the U.S. Department of Transportation’s (DOT’s) regulated community.

The report includes a brief history of the transportation workplace drug- and alcohol-testing program, the general approach, the reasons for testing, some of the issues that impact the validity of the tests, and an outline of the specific regulations by mode.

Some alcohol- and drug-testing statistics are presented in the report to help provide a sense of the scope of the program and of the prevalence of illegal alcohol and drug use among safety-sensitive employees.

The report also highlights alternative strategies aimed at helping to deter illegal alcohol and drug use among employees.

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