HomeMy WebLinkAbout4B - Alcohol Policy
STAFF AGENDA REPORT
DATE:
4B
Assistant City Manager Blair Tremere
Approval of Policy and Program on Alcohol and
Controlled Substances
August 20, 1996
AGENDA ITEM:
PREPARED BY:
SUBJECT:
INTRODUCTION:
Municipalities are required by the federal government to adopt
and implement a policy and program for drug and alcohol
testing for all employees who operate commercial motor
vehicles for the municipality. Staff has worked with attorneys
at the Popham, Haik firm to develop the proposed policy
which is responsive to the federal mandate and to
administrative needs and resources of the City.
A copy of the proposed policy and an Executive Summary of
the policy and testing program are attached.
DISCUSSION:
Development of the proposed policy has been a painstaking
process. The fundamental guideline has been to formulate a
policy that addresses the complex requirements of the federal
regulations to ensure compliance by the City, while creating a
program that can be understood and implemented by City
supervisors and the employees who are commercial vehicle
operators. We aimed for simplicity, economy, and
thoroughness.
As we worked with the attorneys earlier this year, we learned
that certain state requirements (which had been incorporated in
the initial drafts) were eliminated by legislation this past
March. We thus revised the draft to reflect only the federal
requirements.
The initial draft was also reviewed by all department heads
and supervisors, and subsequent drafts have been reviewed
with the supervisors of the affected employees. We held an
information session with the employees who could be in a
position of operating commercial vehicles and we considered
their questions and suggestions in preparing the final draft.
A copy of the policy and the executive summary was sent to
the AFSCME business agent with whom we have had
I:\COUNCIL '-AGNRPTS\903964B.OOC
16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245
AN EQUAL OPPORTUNITY EMPLOYER
CITY OF PRIOR LAKE
EXECUTIVE SUMl\1ARY OF
POLICY ON ALCOHOL AND CONTROLLED
SUBSTANCES FOR COMMERCIAL DRIVERS
Whv is the City Testinl! for Alcohol and Drol!s? Simply put. it's the law. Regulations issued by
the Department of Transportation. Federal Highway Administr:1tion took effect on J anu:11'Y I. 1996. These
regulations require employers to implement a complex program of drug and alcohol testing for all
employees who operate commercial motor vehicles on behalf of the City.
Who Is Affected bv the Policv? The federal regulations require the City to conduct drug and alcohol
testing of all employees who operate a commercial motor vehicle in the performance of their job duties.
The term "commercial motor vehicle" includes vehicles that hold over fifteen passengers (including the
driver), have a gross vehicle weight rating of 26,00 1 or more pounds. have a gross combination weight
rating of 26,00 1 or more pounds (inclusive of a towed unit with a gross vehicle weight rating of more than
10.000 pounds), or trnnSport ~dous materials. All employees who drive commercial motor vehicles
for the City are affected The City will inform you if you fit into this category.
When Are Backg:round Checks Reouired? The federal rules require the City to conduct background
checks of applicants for jobs that involve driving a commercial motor vehicle. Before hiring an applicant.
the City must obtain the applicant's drug and alcohol testing records within the preceding two ye:lrS from
the applicant's previous employers. Background checks are not required for existing City employees.
What Conduct is Prohibited? The feder:l1 regulations and the City's Policy on Alcohol and
Controlled Substances for Commercial Drivers prohibit ceruin conduct regarding the use of alcohol and
controlled substances. These restrictions are based on common sense. The City has an obligation to
maintain a safe and healthful environment for its employees and the public. Some of these restrictions
are noted below:
. Alcohol Concentration: No Driver may report for duty or remain on duty requiring the
perfonnance of safety-sensitive functions while having an alcohol concentration of 0.04 or
greater.
. On-Duty Use of Alcohol: No Driver may use alcohol while perfonning safety-sensitive
functions.
. Pre-Dutv Use of Alcohol: No Driver may perfonn safety-sensitive functions within four
(4) hours after using alcohol.
. Alcohol Use Fonowin~ an Accident: No Driver required to take a post-accident alcohol
test may use alcohol for eight (8) hours following the accident. or until the Driver undergoes
a post-accident alcohol test. whichever occurs first.
. Refusal to Submit to a Reouired Alcohol or Controlled Substances Test: No Driver
may refuse to submit to a post-accident, random, reasonable suspicion. or follow-up alcohol
or controlled substances test.
In the event an applicant or Driver refuses to submit to required alcohol or controlled
substances testing, no test will be conducted. Refusal by a Driver to submit to drug or
alcohol testing will be considered a positive test result. will cause disqualification from
perfonning safety-sensitive functions, and may appe:1I' on the Driver's perm;ment record
Drivers who refuse to submit to testing will be subject to discipline up to arid including
immediate termination. If an applicant refuses to submit to pre-employment controlled
subst:Ulces testing, any conditional offer of employment will be withdrawn.
For purposes of this section, a Driver refuses to submit to an alcohol or controlled
subst:l11ces test when the Driver:
C 1996 Popham Haile Schoobrich & K.wIman. Ud.
FOR.'! :0
(page 1 of 3)
953/181015856/6196
',1.
(1) fails to provide adequate breath for alcohol testing without a valid medic:1l
explanation after he or she has received notice of the requirement for breath
testing,
(2) fails to provide adequate urine for controlled substances testing without a genuine
inability to provide a specimen (as determined by a medical ev:1luation), after he
or she has received notice of the requirement for urine testing, or
(3) engages in conduct that clearly obstructs the testing process.
Refusal by a Driver to complete and sign the alcohol testing fonn, to provide a breath or
saliva sample, to provide an adequate amount of breath, or otherwise coopemte in a way
that prevents the completion of the testing process constitutes a refusal to test.
. Controlled Substances Use: No Driver may report for duty or remain on duty requiring
the performance of safety-sensitive functions when the Driver uses any controlled
substances, except when the use is pursuant to the instructions of a licensed medic:1l
practitioner who has advised the Driver that the substance does not adversely affect the
Driver's ability to safely operate a commercial motor vehicle. Drivers must inform the City
in writing of any therapeutic drug use immediately after receiving any such advice.
. Controlled Substances Testin!!: No Driver may report for duty, remain on-duty or perform
a safety-sensitive function if the Driver tests positive for controlled substances.
What TVDes of Testin!! Will Occur? The federal rules require the City to conduct four types of
mandatory drug and alcohol testing of its Drivers.
. Pre-Employment Testin1!. Prior to the first time a Driver operates a commerci:1l motor
vehicle, the Driver must successfully pass a controlled substances test. Pre-employment
testing for alcohol use is not required.
. Post-Accident Testin2. As soon as is practicable following an accident involving a
commercial motor vehicle, employees who were perfonning safety-sensitive functions with
respect to the vehicle must be tested for alcohol and controlled substances.
. Random Testin2. The federal rules require testing for alcohol and controlled substances
on a random selection basis. The City is required to test twenty-five percent (25%) of its
commercial Drivers for alcohol and fifty percent (50%) of its Drivers for controlled
substances each year.
. Reasonable Suspicion Testin2. When there is reasonable suspicion to believe that a Driver
has violated the prohibitions of the federal rules or is under the influence of alcohol or
controlled substances, the employee must undergo re:1Sonable suspicion testing.
What Are the Conseouences for Drivers? If a Driver tests positive for controlled substances or
alcohol, the City must remove the Driver from safety-sensitive functions involving the opemtion of a
commercial motor vehicle and provide the Driver with a list of available alcohol and chemic:1l dependency
resources. Drivers who violate the City's policy or test positive for drugs or alcohol are subject to
discipline up to and including immediate tennination of employment. If the City chooses to reinstate such
a Driver, he or she must first be evaluated by a licensed or certified Substance Abuse Profession:1l. Before
a Driver returns to safety-sensitive functions, the Driver must pass a return-to-duty test. Finally, the
Driver must undergo "follow-up" testing for a period of up to five years, including at le:1St six tests in the
first twelve months following the Driver's return to duty.
Where Can Drivers Obtain More Information? 'This Executive Summary is only a brief description
of the new feder:1l regulations and the City's Policy on Alcohol and Controlled Substances for Commerci:1l
Drivers. Each Driver is expected to become familiar with the Policy, which provides det1iled information
C 1996 Popham Haik ScllDobricll & IC.1ufm:u1. tJd.
FOR.\l %0
(P:lIC 2 01 3)
9S3/18101585616196
concerning the City's policies and procedures with respect to drug and alcohol testing issues. If you have
additional questions, you should consult your immediate supervisor or the Human Resources Department.
I have received and read this Executive Summary.
Date
T11l1e
CI a.m. 0 p.m.
Employee's Signature
Supervisor's Signature
Employee's Name (print)
Supervisor's Name (print)
C 1996 Popham H.aik SchDobricb & ICaufDWI. 1Jd.
I'OL\I %0
(pale 3 of 3)
9S3/181015856J6I96
This Policy has been drafted to comply with the drug and alcohol testing regulations
adopted by the United States Department of Transportation, Federal Highway Administration,
49 C.F.R. ~ 382 (Controlled Substances and Alcohol Use and Testing) and 49 C.F.R. I 40
(procedures for Transportation Workplace Drug Testing Programs).
This Policy does not confonn to other federal laws or any applicable state law
requirements. If the City employs drivers in states that regulate drug and alcohol testing, the
City should ensure compliance with all applicable state laws. Under Minnesota law,
employers governed by the Federal Highway Administration drug and alcohol testing . .
regulations are exempt from the Minnesota Drug and Alcohol Testing in the VI orkplace Act
with respect to the testing of commercial drivers.
953/181016116/6196
C 1996 Popham Bait ScbDobricb & ICaufmaa. Lad.
CITY OF PRIOR LAKE
POUCY ON ALCOHOL AND
CONTROLLED SUBSTANCES
FOR COMMERCIAL DRIVERS
Effective January 1996
Amended June 1996
(This policy supersedes
all previous policies)
Many of the terms used throughout this Policy are defmed in Part xn (Defmitions).
Where used, these terms are highlighted in italics. Please familiarize yourself with
these defmitions and consult Part XI when you have questions about the meaning of
specific terms used throughout the Policy.
953/18101611 6f6t4J6
C 1996 Popham Haik Sdmobrich ct IC.aufmu. lJd.
TABLE OF CONTENTS
L
INTRODUcnON AND POLICY ST A TEMENT
.......................
1
n. CONDUCT PROHIBITED BY FEDERAL LAW ....................... 2
m. CONDUCT PROHIBITED BY TIIE CITY . . . . . . . . . . . . . . . . . . · . . · . . . . . . 3
IV. REOUIRED BACKGROUND CHECKS AND VERIFICATIONS. . . . . . . . .. .. '3
v. CONTROLLED SUBSTANCES AND ALCOHOL TESTING. . . . . . . . . . . . . .. 4
VI. COLLECTION AND TESTING PROCEDURES . . . . . . . . . . . . . . . . . . . . . . .. 8
VTI. REVIEW AND NOTIFICATION OF TEST RESULTS ................... 9
VITI. CONSE~UENCES FOR DRIVERS ENGAGING IN PROHIBITED
CONOver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IX. MAINTENANCE AND DISCLOSURE OF RECORDS .................. 11
x. POLICY CONTACT FOR ADDmONAL INFORMATION. . . . . . . . . . . · . . . 12
XI. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . · · · · . . · 13
CERTIFlCA TE OF RECEIPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . · . · · . · . · 18
953/18101611 6/6196
i
C 1996 Popham Haik SchDobrich & Kaufmaa. tJd.
I. INTRODUCTION AND POLICY STATEMENT
In response to regulations issued by the Federal Highway Administration (" FHWA") of
the United States Department of Transportation (It DOT'), the City has adopted this
Policy on Alcohol and Controlled Substances for Commercial Drivers. Separate
policies regarding alcohol and controlled substances may apply to non-driver
employees.
It is the policy of the City to maintain for all its operators of conunercial motor
vehicles, whether employees, independent contractors or lessors, a work environment
conducive to maximum safety and optimum work standards. The use, possession,
manufacture, sale, transportation, or other distribution of controlled substances or drug
paraphernalia and the unauthorized use, possession, transportation, sale, or other
distribution of alcohol is contrary to this policy and jeopardizes Driver safety.
The abuse of alcohol and use of controlled substances may adversely affect an
individual's health, work. and personal life. Using alcohol or controlled substances
can lead to a variety of physical problems, including cancer and damage to vital
organs, depression and other psychological problems, social problems, and isolation
from family and friends. Moreover. the use of alcohol and controlled substances can
impair essential safety skills on the job, such as vision, judgment. and coordination,
and lead to increased absences, frequent accidents. decline in quantity and quality of
work, lack of cooperation. poor concentration and judgmen~ and lack of motivation.
When a substance abuse problem arises, methods of intervening include confrontation,
referral to an employee assistance program, and referral to management.
Given the significant dangers of alcohol and controlled substances use, each applicant
and Driver must abide by this policy as a tenn and condition of hiring and continued
employment. Although we would prefer not to intrude into the private lives of our
Drivers, the effect of alcohol and controlled substances abuse on safety, work quality,
production, and productivity make this policy necessary. Moreover. federal law
requires the City to implement such a policy.
To ensure that the policy is clearly communicated to all Drivers and applicants to
whom offers of employment, contracts, or lease commiunents have been made, and in
order to comply with applicable federal law, Drivers and applicants are required to
review this policy and execute the "Certificate of Receipt" portion.
Because changes in applicable law and the City's practices and procedures may occur
from time to time, terms of this policy may change in the future, and nothing in this
policy is intended to be a contract, promise, or representation of any specific "term or
condition of employment except to the extent required by law. In the event that
applicable DOT or FHW A regulations governing alcohol and controlled substances
use and testing are supplemented or amended, this policy shall be deemed to have
been amended to conform to t~e applicable regulations.
953/18101611616196
1
C 1996 Popiwn Haik SchDobrich '" Kaufmaa. lJd.
n. CONDUCT PROHIBITED BY FEDERAL LAW: The following conduct is
explicitly prohibited by applicable DOT regulations adopted by the FHW A and
therefore constitutes violation of City policy.
. Alcohol Concentration: No Driver may report for duty or remain on duty
requiring the performance of safety-sensitive functions while having an alcohol
concentration of 0.04 or greater.
. On-Duty Use of Alcohol: No Driver may use alcohol while performing
safery-s ensitive functions.
. Pre--Dutv Use of Alcohol: No Driver may perform safery-sensitive functions
within four (4) hours after using alcohol.
. Alcohol Use Followin!! an Accident: No Driver required to take a post-
accident alcohol test (see Part V.B of this Policy) may use alcohol for eight (8)
hours following the accident, or until the Driver undergoes a post-accident
alcohol test, whichever occurs first.
. Refusal to Submit to a Reouired Alcohol or Controlled Substances Test:
No Driver may refuse to submit to a post-accident, random. reasonable
suspicion. or follow-up alcohol or controlled substances test.
In the event an applicant or Driver refuses to submit to required alcohol or
controlled substances testing, no test will be conducted. Refusal by a Driver to
submit to drug or alcohol testing will be considered a positive test result, will
cause disqualification from performing safety-sensitive functions, and may
appear on the Driver"s permanent record. Drivers who refuse to submit to
testing will be subject to discipline up to and including immediate termination.
If an applicant refuses to submit to pre-employment controlled substances
testing, any conditional offer of employment will be withdrawn.
For purposes of this section, a Driver refuses to submit to an alcohol or
controlled substances test when the Driver:
(1) fails to provide adequate breath for alcohol testing without a
valid medical explanation after he or she has received notice of
the requirement for breath testing;
(2) fails to provide adequate urine for controlled substances testing
without a genuine inability to provide a specimen (as derennined
by a medical evaluation), after he or she has received notice of
the requirement for urine testing; or
(3) engages in conduct that clearly obstructs the testing process.
953/181016116/6196
2
C 1996 Popham Ha.ik Sc:hDobrich & ~mao. Lad.
Refusal by a Driver to complete and sign the alcohol testing fonn, to provide a
breath or saliva sample, to provide an adequate amount of breath, or otherwise
cooperate in a way that prevents the completion of the testing process
constitutes a refusal to test
. Controlled Substances Use: No Driver may report for duty or remain on duty
requiring the performance of safety-sensitive functions when the Driver uses
any controlled substances, except when the use is pursuant to the instructions
of a licensed medical practitioner who has advised the Driver that the
substance does not adversely affect the Driver's ability to safely operate a
comm.ercial motor vehicle. Drivers must inform the City in writing of any
therapeutic drug use immediately after receiving any such advice.
. Controlled Substances Testin~: No Driver may report for duty, remain on- '
duty or perfonn a safety-sensitive function if the Driver tests positive for
controlled substances.
ill. CONDUCT PROHIBITED BY THE CITY: In addition to the conduct prohibited
by applicable DOT and FHWA regulations. the City has adopted the following
prohibitions and policies based on its independent authority.
. Manufacture. Traffickin~. and Sale: No Driver may engage in the
manufacture. sale, purchase, solicitation to sell or purchase, transportation,
distribution. or dispensing of alcohol or controlled substances or drug
paraphernalia while on duty. performing safety-sensitive functions. on City or
customer premises, or in any City vehicle.
. Criminal Dru!! or Alcohol Convictions: Any Driver convicted under any
federal, state, or local criminal drug or alcohol statute for a violation occurring
in the workplace, on City or customer premises, or in any City vehicle must
notify the City in writing of such conviction no later than five (5) days after
such conviction. The City, in its sole discretion, shall determine what
disciplinary action may be appropriate.
IV. REOUIRED BACKGROUND CHECKS AND VERIFICATIONS
A. Back!!round Checks of A policants
The City will conduct background checks of applicants for employment to
drive a commercial1TU)tor vehicle. Applicants must execute a consent form
authorizing the City to obtain the required information. The City will obtain
(pursuant to the applicant's written consent) information on the applicant's
alcohol tests with a concentration result of 0.04 or greater, positive controlled
substances test results, and refusals to be tested within the preceding two (2)
years which are maintained by the applicant's previous employers. In addition,
the City may obtain all information concerning the applicant which is
9S3/18101611616196
3
C 1996 Popham Haik SchDobrich cl Kaufman. lJd.
maintained by the applicant's previous employers within the preceding two (2)
years pursuant to FHWA drug and alcohol testing regulations. The City will
review such records" if feasible" prior to the fU'St time a Driver perfonns safety-
sensitive functions, but in any event no later than fourteen (14) calendar days
after the first time a Driver perfonns safety-sensitive functions for the City.
B. Verification for Non-Emolovee Drivers
The City will verify once every six (6) months that each Driver that the City
uses, but does not employ, participates in an alcohol and controlled substances
program that meets the requirements of Title 49 Code of Federal Regulations,
Sections 40 and 382. The Driver's written authorization is necessary for the
release of such drug and alcohol testing information. Accordingly, non-
employee Drivers must execute a consent form authorizing the City to obtain
the required information. If the information is unavailable, the City will
perform pre-employment controlled substances testing for such Drivers.
v. CONTROLLED SUBSTANCES AND ALCOHOL TESTING
The City may test any applicant to whom a conditional offer of employment has been
made and may test any Driver for controlled substances and alcohol under any of the
following circumstances:
A. Pre-Emolovment Testin!!
The City will conduct pre-employment controlled substances testing of each
applicant for a Driver position after a conditional job offer has been made to
the applicant and prior to the first time a Driver performs a safety-sensitive
function for the City. A Driver may not perform safety-sensitive functions
unless the Driver has received a controlled substances test result from the
Medical Review Officer indicating a verified negative test result. As an
alternative to pre-employment controlled substances testing, the City may
obtain information from the applicant's previous employers certifying
compliance with another DOT drug testing program. If requested, each
applicant must execute a consent fonn authorizing the disclosure of such
information. Pre-employment alcohol testing will not be conducted.
953/18101611 616196
4
C 1996 Popham lWk SchDobrich & K.uafmaa. lJd.
B. Post-Accident Testin!!
As soon as practicable following an accident involving a commercial motor
vehicle operating on a public road in commerce, the City will test for alcohol
and controlled substances each surviving Driver:
(1) who was performing safery-sensitive functions with respect to the
vehicle, if the accident involved the loss of human life; or
(2) who receives a citation under State or local law for a moving
traffic violation arising from the accident if the accident
involved bodily injury to any person who, as a result of the
injury, immediately receives medical treatment away from the
scene of the accident, or one or more motor vehicles incurring
disabling damage as a result of the accident., requiring the motor
vehicle to be transponed away from the scene by a tow truck or
other motor vehicle.
A Driver who is subject to post-accident testing must remain readily available
for such testing. Drivers that are not readily available for such testing may be
deemed by the City to have refused to submit to testing.
Drivers are required to submit to post-accident controlled substances testing as
soon as possible within thirty-two (32) hours of the accident. If the Driver is
not tested within thirty-two (32) hours after the accident., the City will cease its
attempts to test the Driver and prepare and maintain on file a record stating
why the test was not promptly administered.
Drivers are required to submit to post-accident alcohol testing as soon as
possible within two (2) hours, and in any event no more than eight (8) hours,
after the accident. After an accident., consuming alcohol is prohibited until the
Driver is tested. If the Driver is not tested within eight (8) hours after the
accident., the City will cease its attempts to test the Driver and prepare and
maintain on file a record stating why the test was not promptly administered.
In the event of an accident, it is possible that the Driver will be directed to
submit to a breath, blood, or urine test for the use of alcohol or controlled
substances administered by a federal, state, or local law enforcement officer.
Whenever such a test is conducted by a law enforcement officer, the Driver
must contact the City and immediately repon the existence of the tes~ .
providing the name., badge number, and telephone number of the law
enforcement officer who conducted the test
953/18101611 6/6196
5
C 1996 Popham Haile SchDobrich de. IUufmao. Ltd.
c. Random Testin2:
Every Driver will be subject to alcohol and controlled substances testing on a
random selection basis. Drivers will be selected for testing by use of a
scientifically valid method under which each Driver has an equal chance of
being selected each time selections are made. These random tests will be
conducted throughout the calendar year. Each Driver who is notified of
selection for random testing must cease performing safety-sensitive functions
(other than driving a commercial motor vehicle) and report to the designated
test site immediately. It is mathematically possible that Drivers may be
selected for more than one (I) random test per year.
At this time, federal law requires the City to test at a rate of at least fIfty
percent (50%) of its average number of Drivers for controlled substances each
year, and to test at a rate of at least twenty-five percent (25%) of its average
number of Drivers for alcohol each year. These minimum testing rates are
subject to change by the DOT.
D. Reasonable Suspicion Testin!!
When the City has reasonable suspicion to believe that the Driver has engaged
in conduct prohibited by federal law (See Part II of this Policy), the City must
require the Driver to submit to an alcohol or controlled substances test.
Alcohol testing will occur while the Driver is performing safety-sensitive
functions, just before the Driver is to perform safety-sensitive functions, or just
after the Driver has ceased performing such functions.
The City's determination that reasonable suspicion exists to require the Driver
to undergo an alcohol test will be based on specific contemporaneous,
articulable observations concerning the appearance, behavior, speech or body
odors of the Driver made during, just preceding, or just after the period of the
work day that the Driver is required to be in compliance with this policy. In
the case of controlled substances, the observations may include indications of
the chronic and withdrawal effects of controlled substances.
The required observations for reasonable suspicion testing will be made by a
supervisor or other person designated by the City who has received appropriate
training in identification of actions, appearance and conduct of a Driver which
are indicative of the use of alcohol or controlled substances. The person who
makes the determination that reasonable suspicion exists to conduct an alcohol
test will not conduct the alcohol test of the Driver, which shall instead" be
conducted by another qualfied person.
If a reasonable suspicion alcohol test is not administered within two (2) hours
following the determination of reasonable suspicion, the City will prepare and
maintain on file a record stating the reasons the alcohol test was not promptly
administered. If a reasonable suspicion alcohol test is not administered within
9S3/18101611 616196
6
C 1996 Popiwn &ik Scl1Dobric:h & lC.aufman. ~
eight (8) hours following the detennination of reasonable suspicion., the City
will prepare and maintain on file a record stating the reasons the alcohol test
was not promptly administered., and will cease attempts to conduct the alcohol
test. If a reasonable suspicion drug test is not administered within thirty-two
(32) hours following the detennination of reasonable suspicion., the City will
cease attempts to administer a drug test and will prepare a record stating the
reasons for not administering the test
Notwithstanding the absence of a reasonable suspicion test. no Driver may
report for duty or remain on duty requiring the perfonnance of safery-sensitive
functions while the Driver is under the influence of or impaired by alcohol., as
shown by the behavioral, speech., and perfonnance indicators of alcohol misuse.,
nor will the City pennit the Driver to perform or continue to perform safety-
sensitive functions until (1) an alcohol test is administered and the Driver tests .
negative; or (2) twenty-four (24) hours have elapsed following the
determination of reasonable suspicion.
E. Retum-to-Dutv Testin2:
The City reserves the right to impose discipline in its sole discretion against
Drivers who violate applicable FHWA rules or this policy, subject to applicale
personnel policy and collective bargaining agreements. Except as otherwise
required by law, the City is not obligated to reinstate or requalify such Drivers.
Should the City consider reinstatement of such a Driver, the Driver must
undergo a return-to-duty alcohol test with a result indicating an alcohol
concentration of less than 0.02 if the conduct involved alcohol, or a controlled
substances test with a verified negative result if the conduct involved a
controlled substance, before the Driver returns to duty requiring the
performance of a safery-sensitive function.
F. Follow-Un Testint!
The City reserves the right to impose discipline in its sole discretion against
Drivers who violate applicable FHW A rules or this policy, subject to applicable
personnel policies and collective bargaining agreements. Except as otherwise
required by law., the City is not obligated to reinstate or requalify such Drivers.
Should the City reinstate a Driver following a determination by a Substance
Abuse Professional that the Driver is in need of assistance in resolving
problems associated with alcohol misuse and/or use of controlled substances,
the City will ensure that the Driver is subject to unannounced follow-up
alcohol and/or controlled substances testing. The number and frequency of
such follow-up testing will be directed by the Substance Abuse Professional
and consist of at least six (6) tests in the first twelve (12) months following the
9S3/181016116l6l96
7
C 1996 Popham Haile SchDobrich &:. lUufman. tJd.
Driver's return to duty. Follow-up testing will not exceed sixty (60) months
from the date of the Driver's return to duty.
Follow-up alcohol testing will be conducted only when the Driver is
performing safety-sensitive functions, just before the Driver is to perform
safety-sensitive functions, or just after the Driver has ceased performing safety-
sensitive functions. .
G. Cost of Reauired Testin1!
The City will pay for the cost of pre-employment, post-accident, random, and
reasonable suspicion drug and alcohol testing requested or required of all job
applicants and employees. Based on the City's independent authority, the
Driver must pay for the cost of all requested confmnatory re-tests, retum-to-
duty, and follow-up testing.
VI. COLLECTION AND TESTING PROCEDURES
A. Alcohol Testin!!
Employees will be tested for alcohol just before, during, or immediately
following performance of a safety-sensitive function. Screening tests for
alcohol concentration will be performed utilizing a non-evidential screening
device included by the National Highway Traffic Safety Administration on its
conforming products list (e.g. a saliva screening device) or an evidential breath
testing device (ttEBT') operated by a trained breath alcohol technician ("BAT')
at a collection site. All confirmation tests will be performed utilizing an EBT
operated by a BA T. Each test will be conducted in a location that affords
privacy to the Driver being tested, unless unusual circumstances (e.g.. when it
is essential to conduct a test outdoors at the scene of an accident) make it
impracticable to provide such privacy.
B. Controlled Substances Testin~
The City will use a It split urine specimen It collection procedure for controlled
substances testing. Collection of urine specimens for controlled substances
testing will be conducted by an approved laboratory, clinic or medical facility
and will be conducted in a setting and manner calculated to ensure the Driver's
privacy. The collection facility will be responsible for maintaining a proper
chain of custody for delivery of the sample to a DHHS-certified labo~~ory for
analysis. The laboratory will retain a sufficient portion of any positive sample
for testing and store that portion in a scientifically-acceptable manner for a
minimum of twelve (12) months.
953/18101611 61~6
8
C 1996 Popham }Wk SchDobrich & K.wfmu. 1Jd.
C. Chain of Custody and Confidentiality of Test Results
All controlled substances and alcohol testing will be performed in compliance
with applicable law, including use of an appropriately-licensed urine testing
laboratory which observes applicable chain-of-custody procedures. The City
will .use procedures to test for the presence of alcohol and controlled
substances in order to protect the Driver and the integrity of the testing
process, safeguard the validity of the test results, and ensure that test results are
attributed to the correct Driver. All reports of tests will be kept in the strictest
confidence by the laboratory and provided only to the City's Medical Review
Officer ("MROtt), unless the Driver provides written consent or disclosure is
otherwise permitted or required by law.
vn. REVIEW AND NOTIFICA nON OF TEST RESULTS
A. Review bv Medical Review Officer ("MRO")
Results of controlled substances tests will be sent by the testing laboratory to
an independent j\1edical Review Officer selected by the City. The MRO is
responsible for performing many functions, including reviewing and
interpreting test results, reviewing the Driver"s medical history to explain a
positive test result, and notifying Drivers of confirmed positive test results.
Drivers who have been tested for controlled substances must remain available
following the test to be contacted by the MRO.
If the MRO determines that there is a legitimate medical explanation for a
confirmed positive test result, the MRO will report the test result to the City as
negative. If the MRO determines that there is no legitimate medical
explanation for a confirmed positive test result, the MRO will report the
positive test result to the City in accordance with DOT regulations. Based on a
review of laboratory reports, quality assurance and quality control da~ and
other drug test results, the MRO may conclude that a particular confirmed
positive drug test result is scientifically insufficient for further action. Under
these circumstances, the MRO will conclude that the test is negative for the
presence of drugs or drug metabolites in a Driver's system.
B. Notification of Test Results
The City will notify an applicant of the results of a pre-employment controlled
substances test if the applicant requests such results within sixty (60) .calendar
days of being notified of the disposition of the applicant's employment
application. The City will notify a Driver of the results of random, reasonable
suspicion, and post-accident tests for controlled substances if the test results
are verified positive, and will inform the Driver which controlled substance or
substances were verified as positive. Results of alcohol tests will be
immediately available from the collection agent.
9S3/181016116/6196
9
C 1996 Popham Haik Scl1Dobrich ~ IUufmaa. LId.
c. Ri2ht to Confirmatory Retest
Within seventy-two (72) hours after receiving notice of a positive controlled
substances test resul~ an applicant or Driver may request through the MRO a
reanalysis (confrrmatory retest) of the Driver's split specimen. Action required
by federal regulation as a result of a positive drug test (e.g., removal from
safery-sensitive functions) will not be stayed during retesting of the split
specimen. If the result of the conf11l11atory retest fails to reconfmn the
presence of the drug(s) or drug metabolite(s) found in the primary specimen.. or
if the split specimen is unavailable.. inadequate for testing or untestable, the
MRO will cancel the test. Drivers will be reimbursed for any pay lost if taken
out of service based upon a positive test result which is later negated by a
confirmatory retest, and no adverse personnel action will be taken against the
Driver or job applicant based on the original test.
VllI. CONSE~UENCES FOR DRIVERS ENGAGING IN PROHIBITED CONDUCT
A. Removal From Safetv-Sensitive Functions
No Driver may perform safety-sensitive functions, including driving a
commercial motor vehicle, if the Driver has engaged in conduct prohibited by
federal law (See Part II of this Policy).
No Driver who is found to have an alcohol concentration of 0.02 or greater but
less than 0.04 may perform or continue to perfonn safety-sensitive functions for
the City, including driving a comntercial motor vehicle, until the start of the
Driver's next regularly scheduled duty, but not less than twenty-four (24) hours
following administration of the test.
B. Notification of Resources Available
The City will advise each Driver who has engaged in conduct prohibited by
federal law (See Part II of this Policy) or who has a positive alcohol or
controlled substances test of the resources available to the Driver in evaluating
and resolving problems associated with the misuse of alcohol and use of
controlled substances, including the names, addresses, and telephone numbers
of Substance Abuse Professionals and counseling and treatment programs.
c. Evaluation and Follow-Uo Testine:
The City reserves the right to impose discipline sanctions in its sole dis"cretion
against Drivers who violate applicable FHWA rules or this policy, subject to
applicable personnel policies and collective bargaining agreements. Except as
otherwise required by law, the City is not obligated to reinstate or requalify
such Drivers.
953/18101611616196
10
C 1996 Poptwn Haik SchDObrich & K.auf'maa. Lrd.
Should the City reinstate a Driver who engages in conduct prohibited by
federal law or who has a positive alcohol or controlled substances test. the
Driver will be evaluated by a Substance Abuse Professional. The SAP will
determine what assistance, if any, the Driver needs in resolving problems
associated with alcohol misuse and controlled substances use and will ensure
that the Driver properly follows any rehabilitation program and submits to
unannounced follow-up alcohol and controlled substances testing.
D. Resnonsibilitv for Cost of Evaluation and Rehabilitation
Based on the City's independent authority, Drivers will be responsible for
paying the cost of evaluation and rehabilitation (including services provided by
a Substance Abuse Professional) recommended or required by the City or
FHW A rules, except to the extent that such expense is covered by an applicable
employee benefit plan or imposed on the City pursuant to a collective
bargaining agreement
E. Inaoolicabilitv to Pre-Emolovment Testin1!
The requirements of this policy with respect to referral, evaluation and
rehabilitation do not apply to applicants who refuse to submit to a pre-
employment controlled substances test or to applicants whose pre-employment
controlled substances test is verified positive.
F. Potential Disciolinarv Action:
Any applicant or Driver who violates any aspect of this policy or tests positive
for alcohol or controlled substances may be subject to disciplinary action up to
and including immediate termination based on the City's independent authority,
subject to applicable personnel policies and collective bargaining agreements.
Such a Driver may, at the City's sole discretion, be offered the opportUnity to
submit to evaluation, counseling or rehabilitation, at the Driver's expense, as an
alternative to discharge. Nothing in this policy shall limit or restrict the right
of the City to discipline or discharge a Driver for conduct which violates any
other City rules, regulations, policies, practices, or procedures. Nothing in this
policy limits or restricts the right of the City to establish, or negotiate where
required, other provisions which are in compliance with State and Federal
statutes or regulations.
G. Revocation of Lease A{!reement
Any agreement between the City and an independent contractor, owner-operator
or owner-lessor driving for the City may be immediately revoked by the City
based on the City's independent authority upon a Driver's violation of this
policy or upon a Driver's positive alcohol or controlled substances test.
953/181016116/6196
11
C 1996 Popham !Wk Sclu10brich ok K.wfDWl. Ud.
IX. MAINTENANCE AND DISCLOSURE OF RECORDS
Except as required or authorized by law, the City will not release Driver information
that is contained in records required to be maintained by this policy or the FHW A
regulations. In addition, a Driver is entitled, upon written request, to obtain copies of
any records pertaining to the Driver. s use of alcohol or controlled substances,
including any records pertaining to his or her alcohol or controUed substances tests.
The Driver is responsible for making payment to the City for all records specifically
requested by the Driver.
X. POLICY CONTACT FOR ADDITIONAL INFORMATION
If you have questions about this policy or the City's drug and alcohol testing
procedures, you may contact your immediate supervisor or the Assistant City Manager
to obtain additional information.
...........
953/18101611616196
12
C 1996 Popham Haik Scbaobricb ck ICauimaa. LuL
XI. DEFINITIONS
. "Accident" means an occurrence involving a commercial motor vehicle
operating on a public road which results in a fatality; bodily injury to any
person who, as a result of the injury, immediately receives medical treatment
away from the scene of the accident; or one or more motor vehicles incurring
disabling damage as a result of the accident, requiring the vehicle to be
transported away from the scene by a tow truck or other vehicle. The term
"accident" does not include an occurrence involving only boarding and
alighting from a stationary motor vehicle; an occurrence involving only the
loading or unloading of cargo; or an occurrence in the course of the operation
of a passenger car or a multipurpose passenger vehicle unless the vehicle is
transporting passengers for hire or hazardous materials of a type and quantity ,
that require the motor vehicle to be marked or placarded in accordance with 49
C.F.R. ~ 177.823. 49 C.F.R. ~ 382.303(a); 49 C.F.R. ~ 382.303(0.
. "Alcohol" means the intoxicating agent in beverage alcohol. ethyl alcohol, or
other low molecular weight alcohol including methyl and isopropyl alcohol.
49 C.F.R. ~ 382.107.
. "Alcohol Concentration (or Content)" means the alcohol on a volume of
breath expressed in terms of grams of alcohol per 210 liters of breath as
indicated by an evidential breath test. 49 C.F.R. ~ 382.107.
. "Alcohol Use" means the consumption of any beverage, mixture, or
preparation. including any medication, containing alcohol. 49 C.F.R.
~ 382.107.
. "Beer" means beer, ale, porter, stout, and other similar fermented beverages
(including sake or similar products) of any name or description containing one-
half of one percent or more of alcohol by volume, brewed or produced from
malt, wholly or in part, or from any substitute therefor. 26 V.S.C. ~ 5052(a).
. "Breath Alcohol Technician" or "BAT' means an individual who instructs
and assists individuals in the alcohol testing process and operates and
evidential breath testing device (EBD. 49 C.F.R. ~ 40.3.
. "Collection Site" means a place designated by an employer where drivers
present themselves for the purpose of providing a specimen of their urine to be
analyzed for the presence of drugs. 49 C.F.R. ~ 40.3.
.
"Commercial Motor Vehicle" means a motor vehicle or combination of motor
vehicles used in commerce to transport passengers or property if the motor
vehicle (1) has a gross combination weight rating of 26,001 or more pounds
inclusive of a towed unit with a gross vehicle weight rating of more than
10,000 pounds; or (2) has a gross vehicle weight rating of 26,001 or more
953/181016116/6196
13
C 1996 Popham Raik SchDobric:b &: lCAufmaD. tJ.cL
pounds; or (3) is designed to transport sixteen (16) or more passengers,
including the Driver; or (4) is of any size and is used in the transportation of
materials found to be hazardous for the purposes of the Hazardous Materials
Transportation Act and which require the motor vehicle to be placarded under
the Hazardous Materials Regulations. 49 C.F.R. ~ 382.107.
. "City" means City of Prior Lake
. "City Premises" means all property, facilities, land, offices, living quarters,
buildings, structures, equipmen~ vehicles and parking areas, whether owned,
leased, used or under the control of the company. The term should be
interpreted in its broadest sense and may include other work locations, such as
the job site of a customer or delivery destination.
. "Confirmation (or COllfirmatory) Test" for alcohol testing means a second
test, following a positive non-evidential (e.g. saliva) screening test or a breath
alcohol screening test with the result of 0.02 or greater, that provides
quantitative data of alcohol concentration. For controlled substances testing,
"Confirmation (or Confirmatory) Test" means a second analytical procedure to
identify the presence of a specific drug or metabolite which is independent of
the screen test and which uses a different technique and chemical principal
from that of the screen test in order to ensure reliability and accuracy.
49 C.F.R. ~ 382.107.
. "Consortium" means an entity, including a group or association of employers
or contractors, that provides alcohol or controlled substances testing as required
by the FHW A regulations or other DOT alcohol or controlled substances
testing rules, and that acts on behalf of employers. 49 C.F .R. ~ 382.107.
. "Colltrolled Substances" means those substances identified in 49 C.F.R.
~ 40.21 (a). Marijuana, amphetamines, opiates (including heroin),
phencyclidine (PCP), cocaine, and any of their metabolites are included within
this definition. 49 C.F.R. ~ 382.107; 49 C.F.R. ~ 40.21(a).
. "Distilled Spirits" means the substance known as ethyl alcohol, ethanol, or
spirits of wine in any form (including all dilutions and mixtures thereof from
whatever source or by whatever process produced). 26 U.S.C. ~ SOO2(a)(8).
. "Department of Transportation" or "DOT' means the United States
Department of Transportation.
. "Disabling Damage" means damage which precludes departure of a motor
vehicle from the scene of the accident in its usual manner in daylight after
simple repairs, including damage to motor vehicles that could have been
driven, but would have been further damaged if so driven. Disabling damage
does not include damage which can be remedied temporarily at the scene of the
9S3/18101611616196
14
C 1996 Popham Haik Schaobrich ~ IC.wfmu. LId.
accident without special tools or parts, tire disablement without other damage
even if no spare tire is available, headlight or taillight damage or damage to
turn signals, horn, or windshield wipers which make them inoperative. 49
C.F.R. ~ 382.107.
. "DHHS" means the Department of Health & Human Services or any designee
of the Secretary, Department of Health & Human Services. 49 C.F.R. ~ 40.3.
. "Driver" means any person who operates a commercial motor vehicle. This
includes, but is not limited to, full-time, regularly employed drivers; casual,
intermittent or occasional drivers; leased drivers and independent owner-
operator contractors who are either directly employed by or under lease to the
company or who operate a commercial motor vehicle at the direction of or with
the consent of the company. 49 C.F.R. ~ 382.107.
. "Drugs" has the same meaning as "controlled substances."
. "Employer" means any person, including the United States, a State, District of
Columbia, or a political subdivision of a State, who owns or leases a
commercial motor vehicle or assigns persons to operate such a vehicle. The
term also includes an employer's agents, officers, and representatives.
49 C.F.R. ~ 382.107.
. "Evidential Breath Testing Device" or "EBT' means a device approved by
the National Highway Traffic Safety Administration ("NHTSA It) for the
evidential testing of breath and placed on NHTSA's "Conforming Products List
of Evidential Breath Measurement Devices." 49 C.F.R. ~ 40.3.
. "Federal Highway Administration" or "FHWA" means the Federal Highway
Administration of the United States Department of Transportation.
. "Gross Combillatioll Weight Rating" means the value specified by the
manufacturer as the loaded weight of a combination (articulated) vehicle. In
the absence of a value specified by the manufacturer, the rating is determined
by adding the gross combination weight rating of the power unit and the total
weight of the towed unit and any load thereon. 49 C.F.R. ~ 390.5.
. "Gross Vehicle Weight Ratilzg" means the value specified by the manufacturer
as the loaded weight of a single vehicle. 49 C.F.R. ~ 390.5.
. "Intermittent, Casual, or Occasional Driver" means a driver who in ariy
period of seven (7) consecutive days is employed or used as a driver by more
than a single motor carrier. 49 C.F.R. ~ 390.5.
. "Ii.censed Medical Practitioner" means a person who is licensed, certified,
and/or registered, in accordance with applicable Federal, State, local, or foreign
953/18101611616196
15
C 1996 Popham &Uk ScbDobrich & KmfIlWl. l.J.d.
laws or regulations, to prescribe controlled substances and other drugs. 49
C.F.R. ~ 382.107.
· "Medical Review Officer" or "MRO" means a licensed physician (medical
doctor or doctor of osteopathy) responsible for receiving laboratory results
generated by a drug testing program who has knowledge of substance abuse
disorders and has appropriate medical training to interpret and evaluate an
individuars confinned positive test result together with his or her medical
history and any other relevant biomedical information. 49 C.F.R. ~ 40.3.
· "Performing (a Safety-Sensitive Function)" means any period in which a
driver is actually performing, ready to perform, or immediately available to
perform any safety-sensitive functions. 49 C.F.R. ~ 382.107.
. "Positive Test Result" means a finding of the presence of alcohol or controlled
substances, or their metabolites, in the sample tested in levels at or above the
threshold detection levels established by applicable law.
. "Reasollable Suspicion" means a belief that a Driver has engaged in conduct
prohibited by the FHW A drug and alcohol testing regulations, except when
related solely to the possession of alcohol, based on specific contemporaneous,
articulable observations made by a supervisor or company official who has
received appropriate training concerning the appearance, behavior, speech or
body odors of the Driver. The determination of reasonable suspicion for
alcohol testing will be made during, just preceding, or just after the period of
the work day that the Driver is required to be in compliance with this policy.
In the case of controlled substances, the observations may include indications
of the chronic and withdrawal effects of controlled substances.
. "Refusal to Submit" means a Driver (1) fails to provide adequate breath for
alcohol testing without a valid medical explanation after he or she has received
notice of the requirement for breath testing, (2) fails to provide adequate urine
for controlled substances testing without a genuine inability to provide a
specimen (as determined by a medical evaluation), after he or she has received
notice of the requirement for urine testing, or (3) engages in conduct that
clearly obstructs the testing process. Refusal by a Driver to complete and sign
the alcohol testing form, to provide a breath or saliva sample, to provide an
adequate amount of breath, or otherwise cooperate in a way that prevents the
completion of the testing process constitutes a refusal to test. 49 C.F.R.
f 382.107.
. "Regularly Employed Driver" means a driver who in any period of seven (7)
consecutive days is employed or used as a driver by a single motor carrier.
49 C.F.R. ~ 390.5.
,.--"
9S3/181016116/6196
16
C 1996 Popham lWk SchDobrich & IUuima.o. Ltd.
. "Safety-Sensitive Function" means all time from the time a driver begins to
work or is required to be in readiness to work until the time he/she is relieved
from work and all responsibility for performing work. Safety-sensitive
functions include:
(1) All time at an employer or shipper plant, terminal, facility, or other
property, or on any public property, waiting to be dispatched, unless the
driver has been relieved from duty by the employer;
(2) All time inspecting equipment as required by 49 C.F.R. ~~ 392.7 and
392.8 or otherwise inspecting, servicing, or conditioning any
commercial motor vehicle at any time;
(3) All time spent at the driving controls of a commercial motor vehicle in
operation;
(4) All time, other than driving time, in or upon any commercial motor
vehicle except time spent resting in a sleeper berth (a berth conforming
to the requirements of 49 C.F.R. ~ 393.76);
(5) All time loading or unloading a vehicle, supervising, or assisting in the
loading or unloading, attending a vehicle being loaded or unloaded,
remaining in readiness to operate the vehicle, or in giving or receiving
receipts for shipments loaded or unloaded; and
(6) All time repairing, obtaining assistance, or remaining in attendance upon
a disabled vehicle. 49 C.F.R. ~ 382.107.
. "Screening Test (also klJOWII as Initial Test)" in alcohol testing, means an
analytical procedure to determine whether a driver may have a prohibited
concentration of alcohol in his or her system. Screening tests may be
conducted by utilizing a non-evidential screening device included by the
National Highway Traffic Administration on its conforming products list (e.g. a
saliva screening device) or an evidential breath testing device (" EBT') operated
by a trained breath alcohol technician ("BAT'). In controlled substance testing,
"Screening Test" means an immunoassay screen to eliminate "negative" urine
specimens from further consideration. 49 C.F.R. ~ 382.107.
. .. Substance Abuse Professional" or "SAP" means a licensed physician
(medical doctor or doctor of osteopathy), licensed or certified psychologist,
licensed or certified social worker, licensed or certified employee assistance
professional, or licensed or certified addiction counselor (certified by the
National Association of Alcoholism and Drug Abuse Counselors Certification
Commission) with knowledge of and clinical experience in the diagnosis and
treatment of alcohol and controlled substances-related disorders. 49 C.F.R. I
382.107.
. "Wine" means wine of not less than one-half of one percent of alcohol by
volume. 49 C.F.R. ~ 392.5(a)(3).
9S3/18101611616196
17
C 1996 Popham Haik Sc:hDobric:h & Kmfma.ll. Ud.
CERTIFICA TE OF RECEIPT
'Ibis policy. as disuibuted to Drivers. contains two copies of this page. Every Driver should keep the fU'St pase intact for his or her
records. In addition. every Driver should sign and complete the second page for the City's records.
I certify that I have received the City Policy on Alcohol and Controlled Substances for
Drivers in accordance with 49 C.F.R. ~ 382.601, which requires the City to provide
educational materials that explain the requirements of Federal law and the City's policies
and procedures with respect to meeting these requirements. I acknowledge that I am
responsible for reading, understanding, and complying with all Department of
Transportation ("DOT") regulations and City policies regarding alcohol and controlled
substances use and testing, and that I must abide by these regulations and policies as a
condition of my employment. I understand that, because changes in applicable law and the
City's practices and procedures may occur from time to time, tenns of the City's policy
may change without prior notice, and that nothing in this policy is intended. to be a
contract, promise, or representation of any specific term or condition of employment except
to the extent required by law. I further understand that the City and its agents may:
. administer to me an examination which may include tests for alcohol and controlled
substances, including non-evidential alcohol screening (e.g. saliva screening), breath
alcohol testing, and urine controlled substances testing,
. disclose results of alcohol or controlled substances testing and related information to a
testing laborator)', the City's Medical Review Officer, a Substance Abuse Professional,
and the DOT,
. use the results of alcohol and controlled substances testing, as well as other relevant
evidence, in determining whether to hire me as a Driver, discipline or discharge me, or
retain me as a Driver of the City, and
. discipline me up to and including immediate tennination if at any time I report for duty
or perform safety-sensitive functions while under the influence of alcohol or controlled
substances, refuse to submit to a required alcohol or controlled substances test, test
positive for alcoltol or controlled substances, or otherwise violate DOT regulations, this
policy, or other policies regarding the use of alcohol or controlled substances adopted
by the City.
1 have read this certification carefully and have been given an opportunity to ask questions
about it before providing my signature below.
Driver's Signature
Supervisor's Signature
Driver's Name (print)
Supervisor's Name (print)
Social Security Number
Date (month/daylyear)
RETAIN THIS COpy FOR YOUR RECORDS
953/18101611616196
18
C 1996 Popham fWk SchDobrich 4l K.aufap,a. lJd..
CERTIFICA TE OF RECEIPT
1bis policy, as distributed to Drivers. contains two copies of this page. Every Driver should keep the rust page intact for his or her
records. In addition. every Driver should sign and complete the second page for the City's records.
1 certify that 1 have received the City Policy on Alcohol and Controlled Substances for Driven
in accordance with 49 C.F.R. ~ 382.601, which requires the City to provide educational
materials that explain the requirements of Federal law and the City's policies and procedures
with respect to meeting these requirements. 1 acknowledge that 1 am responsible Jor reading,
undentanding, and complying with all Department of Transportation ("DOT") regulations and
City policies regarding alcohol and controlled substances use and testing, and that 1 must abide
by these regulations and policies as a condition of my employmenL 1 understand that, because
changes in applicable law and the City's practices and procedures may occur from time to
time, terms of the City's policy may change without prior notice, and that nothing in this policy
is intended to be a contract, promise, or representation of any speclfu: term or condition of
employment except to the extent required by law. I further understand that the citj and its
agents may:
. administer to me an examination which may include tests for alcohol and controlled
substances, including non-evidential alcohol screening (e.g. saliva screening), breath
alcohol testing, and urine controlled substances testing,
. disclose results of alcohol or controlled substances testing and related information to a
testing laboratory, the City's Medical Review Officer, a Substance Abuse Professional,
and the DOT,
. use the results of alcohol and controlled substances testing, as well as other relevant
evidence, in determining whether to hire me as a Driver, discipline or discharge me, or
retain me as a Driver of the City, and
. discipline me up to and including immediate termination if at any time I report for duty
or perform safety-sensitive functions while under the influence of alcohol or controlled
substances, refuse to submit to a required alcohol or controlled substances test, test
positive for alcohol or controlled substances. or otherwise violate DOT regulations, this
policy. or other policies regarding the use of alcohol or controlled substances adopted
by the C iry.
I have read this certiju:ation carefully and have been given an opportunity to ask questions
about it before providing my signature below.
Driver's Signature
Supervisor's Signature
Supervisor's Name (print)
Driver's Name (print)
Social Security Number
Date (TTWnthlday/year)
COMPLETE AND SIGN THIS COpy FOR THE CITY'S RECORDS
953/18101611 6/6196
19
C 1996 Poptwn Haile Sc:hnobric:h &. IC.au.fma.D. lJd.
CITY OF PRIOR LAKE
STEP.BY.STEP GUIDE
TO ADOPTING FHWA DRUG AND ALCOHOL TESTING PROGRAM
1. Review the Policy on Alcohol and Controlled Subst:lnces for Commercial Drivers. If you have
questions or concerns. or wish to modify the policy, contact Joe Schmitt (612-334-8735) or Craig
Trepanier (612-334-8322) at Popham, Haik, Schnobrich & Kaufman, Ltd.
2. Provide written notice to representatives of employee labor organizations (if any) concerning the
availability of the Policy on Alcohol and Controlled Substances for Commercial Drivers.
3. Bargain with appropriate collective bargaining representatives over implementation of the Policy on
Alcohol and Controlled Subst:lnces for Commercial Drivers if it will be applied to unionized
employees.
4. Provide 60 minutes of tr:1ining for all supervisors of commercial drivers regarding reasonable
suspicion alcohol testing and 60 minutes of tr:lining regarding reasonable suspicion controlled
substances testing.
5. Distribute the finalized Policy on Alcohol :md Controlled Substances for Commercial Drivers to
covered employees and obtain an executed copy of the "Certificate of Receipt" portion for your
records.
6. Select a collection site for urine specimens and breath alcohol testing. Ensure that your collection site
is located in close proximity to your area of operations, f:uni1i:lI' with the procedures that govern urine
and breath alcohol testing, and qualified to perform such collection. If you operate in the Twin Cities,
we recommend that you contact Greg Anderson at American Forensic Sciences, Inc. (612-854-2275)
in Bloomington. Minnesota to obtain these services.
7. Contract with a third party to provide random selection administntion services (Le. to enlist your
commercial drivers in random testing pools for both alcohol and controlled substances testing). Again.
we recommend that you contact Greg Anderson at American Forensic Sciences, Inc. (612-854-2275)
in Bloomington. Minnesota to obtain these services.
8. Select a Medical Review Officer to malyze laboratory test results for urine s::unples. Greg Anderson
at American Forensic Sciences, Inc. (612-854.2275) in Bloomington. Wnnesou can :1lso provide these
services.
9. Select a qualified and certified testing laboratory to malyze urine specimens for controlled subst:lnces.
We recommend that you contact Ron Roberge at MEDTOX Laboratories, Inc. (612-636-7466) in St
Paul. Minnesota to obtain laboratory services.
10. Select a Substance Abuse Professional to evaluate employees who test positive for alcohol or
controlled substances or violate th~ Federal Highway Administration drug and alcohol testing
regulations. Ensure that your Substance Abuse Professional is qualified to perform such services. A
Substance Abuse Professional is defined as a licensed physician (medical doctor or doctor of
osteopathy). or a licensed or certified psychologist, a licensed or certified social worker, a licensed
or certified employee assistance professional, or a licensed or certified addiction counselor (certified
by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission)
with knowledge of and clinical experience in the diagnosis and treatment of alcohol arid" controlled
substances-related disorders. We recommend that you contact K3ren Hagen at dor & assodates. inc.
(612-342-2693) in Minneapolis, Minnesota to obtain Substance Abuse Professional services.
9S3/lS 101 S as 6/6196
C 1996 Poph~ H:lik Schnobrich & ~man. Ud.
FORo'1 19
This Supervisory Guide has been drafted to comply with the drug and alcohol testing
regulations adopted by the United States Department of Transportation, Federal Highway
Administration, 49 C.F.R. ~ 382 (Controlled Substances and Alcohol Use and Testing) and 49
C.F.R. ~ 40 (Procedures for Transportation Workplace Drug Testing Programs).
This Supervisory Guide does not conform to other federal laws or any applicable state
law requirements. If the City employs drivers in states that regulate drug and alcohol testing,
the City should ensure compliance with all applicable state laws. Under Minnesota law,
employers governed by the Federal Highway Administration drug and alcohol testing .
regulations are exempt from the Minnesota Drug and Alcohol Testing in the Workplace Act
with respect to the testing of commercial drivers.
9S3/181016186/6196
C 1996 Popham Haile SchDObrich ct. Kaufman, Ltd.
CITY OF PRIOR LAKE
SUPERVISORY GUIDE TO
POLICY ON ALCOHOL AND
CONTROLLED SUBSTA1.VCES
FOR COMMERCIAL DRIVERS
Effective January 1996
Amended June 1996
(This Supervisory Guide supersedes
all previous Supervisory documents)
9~3/18101618 6/6196
C 1996 Popham Haik SchDObrich & K.au.fman, Ltd.
T ABLE OF CONTENTS
I. INTRODUCTION AND POLICY STATEMENT. . . . . . . . . . . . . . . . . . . . . . .. 1
A. INTR 0 D U CTI 0 N .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. POLICY CONTENT ...................................... 1
c. NOTIFICATION AND POSTING REOUIREMENTS ............... 1
II. SCOPE: WHO IS COVERED BY THE FHW A TESTING REOtJIREMENTS? .. 2
III.
PROHIBITED CONDUCT ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. ALCOHOL CONCENTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. ALCOHOL POSSESSION ................... . . . . . . . . . . . . . . .
c. ON-DUTY USE OF ALCOHOL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. PRE-DUTY USE OF ALCOHOL ..........................:..
E. USE OF ALCOHOL FOLLOWING AN ACCIDENT ...............
F. REFUSAL TO SUBMIT TO A REOUIRED ALCOHOL OR
C01\l-rROLLED SUBSTANCES TEST .........................
G. CO~-rROLLED SUBSTANCES USE. POSSESSION. A~
INFLlTE~CE ...........................................
H. CO~-rROLLED SUBSTANCES TESTING ......................
3
3
3
4
4
4
4
5
5
IV. REOCIRED BACKGROUND CHECKS A~D RELEASE OF Il\4r'ORMATION .. 6
A. BACKGROCNl) CHECKS FOR APPLIC.AJ\4'TS . . . . . . . . . . . . . . . . . .. 6
B. BACKGROUND CHECKS FOR NON-EMPLOYEE DRIVERS ........ 7
V. REOUIRED TESTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. PRE-EMPLOY~tE~l TESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
B. POST-ACCIDENT TESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
C. RA.~DO!vt TESTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
D. REASONABLE SUSPICION TESTING. . . . . . . . . . . . . . . . . . . . . . . . 11
1. DETERMINA nON OF RE..c\SONABLE SUSPICION . . . . . . . .. 11
2. S lIPER VISOR TRAINING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3. TIMING OF ALCOHOL TESTING. . . . . . . . . . . . . . . . . . . . . . 11
4. RE~tOV AL FROM SAFETY -SENSITIVE FUNCTIONS WHEN
ALCOHOL TEST NOT ADMINlSTERED . . . . . . . . . . . . . . . .. 12
5. \V~RITIEN RECORD OF TESTING ..................... 12
E. RETl..rRN- TO-DUTY TESTING ............................. 13
F. FOLLOW-UP TESTING .................................. 13
G. BIENNIAL (PERIODIC) TESTING. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
H. REOUIRED CONSENT FORMS ......................... .... . 14
I. COST OF REOUIRED TESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
953/181016186/6196
i
C 1996 Popham Haile Schoobrich & Kaufman, Ltd.
~..~~"-....,-,-,~__"....___.._...._.,__.~_~_...~.,.~_~._",,_~.......,,,-,,-...~~,____.~,......w__~__...__~..~,.."_~....~..,~,.."^...~...~"~__.",,,-,,,_,".""...~~"~,,,,,~......._~~"
VI.
VIT.
COLLECTION AND TESTING PROCEDURES. . . . . . . . . . . . . . . . . . . . . . .
A. REOUIRED NOTICE BEFORE TESTING . . . . . . . . . . . . . . . . . . . . . .
B. PROCEDURES FOR ALCOHOL TESTING. . . . . . . . . . . . . . . . . . . . .
C. PROCEDURES FOR CONTROLLED SUBSTANCES TESTING .. . . . .
D. CHAIN OF CUSTODY AND CONFIDENiIALITY OF TEST
RESULTS ............................................
E. OU ALITY CONTROL PROCEDURES ........................
REVIEW AND NOTIFICATION OF TEST RESULTS ..................
A. REVIEW OF TEST RESULTS BY A MEDICAL REVIEW OFFICER ..
B. MEDICAL REVIEW OFFICER NOTIFICATION OF TEST RESULTS
TO THE C i tv ..........................................
c. EMPLOYER NOTIFICATION OF TEST RESULTS TO APPLICA..NTS
AND DRIVERS .......................................'.
D. RIGHT TO CONFIRMATORY RETEST . . . . . . . . . . . . . . . . . . . . . . .
Vill. CONSE~UENCES FOR DRIVERS ENGAGING IN PROHIBITED
CO ND U CT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. REMOVAL FROM SAFETY -SENSITIVE FUNCTIONS . . . . . . . . . . . .
B. CONSE~UENCES FOR DRIVERS WITH AN ALCOHOL
CONCENTRATION BETWEEN 0.02 AND 0.04 .................
C. REFERRAL. EVALUATION. AND TREATivtENT . . . . . . . . . . . . . . . .
1. NOTIFICATION OF AVAILABLE RESOURCES ...........
2. REQUIRED EVALUATION BY SC'BSTANCE ABUSE
PRO FE S S ION AL ..................................
3. REQUIRED RETURN- TO-DUTY TESTING . . . . . . . . . . . . . . .
4. FOLLOW-UP EVALUATION ANTI TESTING .............
5. RETURN TO SAFETY-SENSITIVE FUNCTIONS ...........
6. RESPONSIBILITY FOR THE COST OF EVALUATION AND
REHABILITATION ................................
7. INAPPLICABILITY TO PRE-EMPLOYMEm TESTING. . . . . .
D. DISCIPLINE AND DISCHARGE OF EMPLOYEES . . . . . . . . . . . . . . .
"..-
IX.
NOTIFIC.A. TION OF EMPLOYEE CONVICTIONS. . . . . . . . . . . . . . . . . . . . .
x.
MAINTEN.~CE AND DISCLOSURE OF RECORDS ..................
A. DUTY TO MAI~'TAIN RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. RECORDS TO BE KEPT FOR FIVE YEARS ..............
2. RECORDS TO BE KEPT FOR nvo YEARS ..............
3. RECORDS TO BE KEPT FOR ONE YEAR ...............
4. RECORDS TO BE KEPT FOR AN INDEFINITE PERIOD . .0.". .
5. OTHER REOUIRED RECORDS .......................
B. LOCA nON OF REQUIRED RECORDS .... . . . . . . . . . . . . . . . . . . .
953/181016186/6196
ii
CI 1996 Popham Haik Scl1nobrich &. Kaufman. Ltd.
14
14
15
16
17
17
18
18
18
19
19
20
20
20
20
20
21
21
21
22
22
22
23
23
24
24
24
25
25
25
26
27
C. REPORTING INFORMA nON TO THE FHW A IN A
MANAGEMENT INFORMATION SYSTEM. . . . . . . . . . . . . . . . . . .. 27
D. PROVIDING ACCESS TO FACILmES AND RECORDS .......... 28
1. ACCESS TO RECORDS ............................. 28
2. CONFIDENTIALITY OF INFORMA nON ................ 28
3. DISCLOSURES TO GOVERNMENT AGENCIES ........... 28
XI. PENAL TIES FOR NONCOMPLIANCE WITH THE FHW A RULES ........ 29
XII. AVOIDING CLAIMS UNDER THE AMERICANS WITH DISABILITIES
ACT ..................................................... 30
XIII. COMPL YING WITH THE FAMILY & MEDICAL LEA VB ACT. . . . . . . . . .. 31
XIV. APPENDIX OF DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
953/18101618 6/6196
ill
C 1996 Popham Haik SchDobrich & lC.aufmaD. Ltd.
I. INTRODUCTION AND POLICY STATEMENT
A. INTRODUCTION
In 1991, Congress passed the Omnibus Transportation Employee Testing Act of 1991,
which directed the Secretary of Transportation to prescribe revised regulations for the testing
of employees for drugs and alcohol in four (4) sectors of the transportation industry.
Pursuant to this direction, the Federal Aviation Administration ("FAA"), Federal Highway
Administration ("FHW A"), Federal Railroad Administration ("FRA"), and Federal Transit
Administration ("FT A") promulgated separate drug and alcohol testing rules for their
respective industries. In general, these regulations require covered employers such as City of
Prior Lake ("the City") to adopt a written drug and alcohol testing policy, train supervisors,
provide information to employees, and begin a comprehensive program of mandatory drug
and alcohol testing.
These materials are designed to assist the City in conducting the mandatory drug and
alcohol testing required by the FHW A rules. These materials contain citations to the
applicable "Code of Federal Regulations" ("C.F.R.") issued by the DOT. A copy of these
regulations is enclosed with the materials you received from Popham Haile You may wish to
refer to these regulations from time to time, and may do so by turning to the specific section
referred to in the citation. For instance, the citation" 49 C.F.R. g 382.601 (a)" refers to Title
49 of the Code of Federal Regulations, Section 382.601 (a).
B. POLICY CONTENT
The FHW A regulations require the City to provide educational materials that explain
the requirements of the regulations and the City's drug and alcohol testing policies and
procedures. 49 C.F.R. ~ 382.601(a). These materials are summarized in the City's Policy on
Alcohol and Controlled Substances for Commercial Drivers.
c. NOTIFICA TION AND POSTING REOUIREMENTS
The FHW A rules require the City to ensure that a copy of the educational materials
required by the FHW A regulations is distributed to each driver prior to the start of alcohol
and controlled substances testing and to each driver subsequently hired or transferred into a
position requiring driving a commercial motor vehicle. 49 C.F.R. ~ 382.601(a)(1). Each
driver must sign a statement certifying that he or she has received a copy of these materials.
See last two pages of Policy (Certificate of Receipt Forms). The City must maintain the
original of the signed certificate and may provide a copy of the certificate to the driver. .49
C.F.R. ~ 382.601(d). .
....-
953/181016186/6196
1
C 1996 Popham Haik Schnobrich & Kaufman. Ltd.
ll. SCOPE: WHO IS COVERED BY THE FHW A TESTING REOUIREMENTS?
The FHW A regulations require the City to test all employees who operate commercial
motor vehicles and therefore are required~ in the course of their job duties~ to hold a
commercial driver~s license. 49 C.F.R. ~ 382.103. A commercial driver's license is defined
as a license issued by a State or other jurisdiction in accordance with the standards contained
in 49 C.F.R. ~ 383. State law defines the circumstances under which an individual is
required to hold such a license. In general~ a commercial driver's license is required to drive
(1) commercial motor vehicles or (2) certain non-commercial vehicles for a few specific
purposes.
The term "commercial motor vehicle" 'means a motor vehicle or combination of motor
vehicles used in commerce to transport passengers or property if the motor vehicle:
. has a gross combination weight rating of 26,001 or more pounds inclusive of a
towed unit with a gross vehicle weight rating of more than 1 O~OOO pounds;
. has a gross vehicle weight rating of 26,00 I or more pounds;
. is designed to transport sixteen (16) or more passengers. including the driver;
or
. is of any size and is used in the transportation of materials found to be
hazardous for the purposes of the Hazardous Materials Transportation Act and
which require the motor vehicle to be placarded under the Hazardous Nlaterials
Regulations (contained in 49 C.F.R. ~ 172. subp. F).
49 C.F.R. ~ 382.107.
A commercial driver's license is also required to drive vehicles with a school bus
endorsemen4 even if such vehicles are designed for fifteen (15) or fewer passengers,
including the driver. Employers and drivers subject to alcohol and controlled substances
testing requirements issued by the Federal Transit Administration (49 C.F.R. ~~ 653 and 654)
are exempt from the FHW A rules. 49 C.F .R. ~ 382.1 03( d)( 1). Farmers, firefighters, and
emergency response personnel may be exempt from the FHW A rules unless the applicable
state government decides to require such employees to hold commercial driver's licenses. 49
C.F.R. ~ 382.103(d)(3). Active duty military personnet members of the reserves, and
members of the national guard on active duty are automatically exempt from the regulations.
49 C.F.R. ~ 382.103(d)(2).
For purposes of the regulations, the tenn "driver" means any person who operates a
commercial motor vehicle. This includes, but is not limited to, full-time, regularly employed
drivers; intennitten4 casual, or occasional drivers; leased drivers and independent owner-
operator contractors who are either directly employed by or under lease to the City or who
9S3/181 0 1618 6/6196
2
C 1996 Popham Haik Schnobrich dr. Kaufman. Ltd.
operate a commercial motor vehicle at the direction of or with the consent of the City. 49
C.F.R. ~ 382.107.
ITl. PROHIBITED CONDUCT
A. ALCOHOL CONCENTRATION
The FHW A rules provide that no driver may report for duty or remain on duty
requiring the performance of safety-sensitive functions while having an alcohol concentration
of 0.04 or greater. If the City has actual knowledge that a driver has an alcohol concentration
of 0.04 or greater, it may not permit the driver to perform or continue to perform safety-
sensitive functions. 49 C.F.R. ~ 382.201.
B. ALCOHOL POSSESSION
As amended on March 8, 1996, the FHW A rules no longer prohibit alcohol possession
by drivers. 61 Fed. Reg. 9551 (Mar. 8, 1996). Given the broad definition of "alcohol," the
FHW A concluded that prohibiting alcohol possession would unnecessarily prevent drivers
from possessing windshield washer fluid, antifreeze, etc. Thus, the City is no longer required
to remove drivers from safety-sensitive functions or take other action against drivers found to
possess alcohol on duty. Alcohol possession, in conjunction with other evidence, however,
may give rise to "reasonable suspicion," in which case the City should administer a
reasonable suspicion test for the driver.
Interstate motor carriers, however, are subject to separate prohibitions contained in 49
C.F.R. ~ 392 ("Part 392"). Part 392 provides that no driver may be on duty or operate a
commercial motor vehicle while the driver possesses wine of not less than one-half percent of
alcohol by volume, beer, or distilled spirits, unless manifested and transported as part of a
shipment or possessed or used by bus passengers. 49 C.F.R. ~ 392.5. Because Part 392's
prohibition applies only to alcoholic beverages, drivers may possess other substances which
contain alcohol, such as windshield washer fluid, denatured alcohol, fuel line antifreeze,
rubbing alcohol, shaving lotion, cologne, room deodorizers, etc. 61 Fed. Reg. 9551 (Mar. 8,
1996).
9'3/181016186/6/96
3
e 1996 Popham Haik Schnobrich &. Kaufman. Ltd.
C. ON-DUTY USE OF ALCOHOL
The FHW A rules provide that no driver may use alcohol while performing safety-
sensitive functions. If the City has actual knowledge that a driver is using alcohol while
performing safety-sensitive functionsy it may not permit the driver to perform or continue to
perform safety-sensitive functions. 49 C.F.R. ~ 382.205.
The restrictions applicable to drivers for interstate motor carriers are more stringent.
Part 392 provides that no driver may use alcoholy be under the influence of alcohol or have
anv measured alcohol concentration or detected oresence of alcohol while on duty, operating a
commercial motor vehicle, or in physical control of a commercial motor vehicle. 49 C.F.R.
~ 392.5. Unlike the general FHW A rules which establish an alcohol threshold detection level
of 0.02 or greater. this provision prohibits drivers from having gny detected presence of
alcohol in their system.
D. PRE-DUTY USE OF ALCOHOL
The FH\V A rules provide that no driver may perform safety-sensitive functions within
four (4) hours after using alcohol. If the City has actual knowledge that a driver has used
alcohol within four (4) hours, it may not permit the driver to perform or continue to perform
safety-sensitive functions. 49 C.F.R. ~ 382.207;
The restrictions applicable to drivers for interstate motor carriers are more stringent.
Part 392 provides that no driver may use alcohol or be under the influence of alcohol within
four (4) hours before going on duty, operating a commercial motor vehicle, or having
physical control of a commercial motor vehicle. 49 C.F.R. 9 392.5.
E. USE OF ALCOHOL FOLLOWING AN ACCIDENT
The FH\V A rules provide that no driver required to take a post-accident alcohol test
may use alcohol for eight (8) hours following the accidenty or until the driver undergoes a
post-accident alcohol test, whichever occurs first. 49 C.F.R. 9 382.209.
F. REFUSAL TO SUBMIT TO A REOUIRED ALCOHOL OR
CONTROLLED SUBSTANCES TEST
The FHW A rules provide that no driver may refuse to submit to a post-accident
alcohol or controlled substances testy a random alcohol or controlled substances testy a
reasonable suspicion alcohol or controlled substances test, or a follow-up alcohol or controlled
substances test required by the FHW A regulations. The City may not allow a driver who
refuses to submit to such tests to perfonn or continue to perfonn safety-sensitive functions.
49 C.F .R. 9 382.211.
9S3/181016186/6196
4
C 1996 Popham Haile Schnobrich de. Kaufman. Ltd.
;.,"~,.-...",,,,,,~~~" . -II . - --_._""",,,,~,,-,-",,,,-,",,,,,,,,-'---""""'.~'.""'--"",,,'~~.,"'-....................~
According to the FHW A rules, a driver "refuses to submit" to an alcohol or controlled
substances test when the driver (1) fails to provide adequate breath for alcohol testing without
a valid medical explanation after he or she has received notice of the requirement for breath
testing. (2) fails to provide adequate urine for controlled substances testing without a genuine
inability to provide a specimen (as determined by a medical evaluation), after he or she has
received notice of the requirement for urine testing. or (3) engages in conduct that clearly
obstructs the testing process. 49 C.F.R. ~ 382.107. Refusal by a driver to complete and sign
the alcohol testing form, to provide a breath or saliva sample, to provide an adequate amount
of breath, or otherwise cooperate in a way that prevents the completion of the testing process
constitutes a refusal to test. 49 C.F.R. ~ 4O.103(a). Of course, refusal to test precludes the
driver from performing safety-sensitive functions and is essentially treated as a positive test
for purposes of the FHW A rules.
G. CONTROLLED SUBSTANCES USE, POSSESSION. A~D INFLUENCE
The FHW A rules provide that no driver may report for duty or remain on duty
requiring the performance of safety-sensitive functions when the driver uses any controlled
substances, except when the use is pursuant to the instructions of a licensed medical
practitioner who has advised the driver that the substance will not adversely affect the driver's
ability to safely operate a commercial motor vehicle. If the City has actual knowledge that a
driver has used a controlled substance, it may not permit the driver to perform or continue to
perform a safety-sensitive function. The City may require its drivers to inform it of any
therapeutic drug use. 49 C.F.R. ~ 382.213.
The restrictions applicable to drivers for interstate motor carriers are more stringent.
Part 392 provides that no driver may be on duty when the driver possesses, is under the
influence of, or uses any Schedule I drug or other substance identified in Appendix D to
Subchapter B of Chapter III of Part 49 of the Code of Federal Regulations (including opiates,
opium derivatives, hallucinogenic substances, depressants and stimulants). 49 C.F.R. ~ 392.4.
Part 392 also provides that no driver may be on duty when the driver possesses, is under the
influence of, or uses an amphetamine or any formulation thereof (including, but not limited
to, "pep pills" and "bennies"), a narcotic drug or any derivative thereof, or anv other
substance to a degree which renders the driver incapable of safety operating a motor vehicle
unless the use is pursuant to the instructions of a licensed medical practitioner who has
advised the driver that the substance will not adversely affect the driver's ability to safely
operate a commercial motor vehicle. Under Part 392, possession does not include possession
of a substance which is manifested and transported as part of a shipment. 49 C.F.R. ~ 392.4.
H. CONTROLLED SUBSTANCES TESTING
The FHW A rules provide that no driver may report for duty, remain on duty or
perform a safety-sensitive function if the driver tests positive for controlled substances. If the
City has actual knowledge that a driver has tested positive for controlled substances, it may
953/181016186/6196
5
C 1996 Popham Haik Schnobrich & Kaufman, ltd.
not permit the driver to perform or continue to perform safety-sensitive functions. 49 C.F.R.
~ 382.215.
IV. REOUIRED BACKGROUND CHECKS AND RELEASE OF INFORMATION
A. BACKGROUND CHECKS FOR APPLICANTS
The FHW A rules require the City to conduct background checks of applicants for
employment to operate commercial motor vehicles. The City must obtain7 pursuant to a
driver' s consen~ information on the driver's alcohol tests with a concentration result of 0.04
or greater, positive controlled substances test results7 and refusals to be tested7 within the
preceding two (2) years7 which are maintained by the driver's previous employers. 49 C.F.R
~ 382.413(a)(1). See Form 2 (Authorization for Prior Drug and Alcohol Test Results Form).
The FHW A rules also allow (but do not require) the City to obtain, pursuant to a driver's
written consent7 any of the information concerning violations by the driver during the
preceding two (2) years which is maintained pursuant to the FHW A rules by the driver's
previous employers, including information obtained by a previous employer from an earlier
previous employer. 49 C.F.R 9 382.405(f); 61 Fed. Reg. 9551 (Mar. 8, 1996).
The City must obtain and review this information no later than fourteen (14) calendar
days after the first time a driver performs safety-sensitive functions for the City, if it is not
feasible to obtain the information prior to the driver performing safety-sensitive functions.
The City may not permit a driver to perform safety-sensitive functions after fourteen (14)
days without having made a good faith effort to obtain this information as soon as possible.
49 C.F.R ~ 382.413(b). The City must make a good faith effort to obtain this information
within fourteen (14) days, and may not simply wait until the last possible moment before
commencing its efforts to obtain this information. 49 C.F.R. 9 382.413(b). If the driver stops
performing safety-sensitive functions for the City before expiration of the fourteen (14) day
period or before the City has obtained the information, the City is still under a duty to obtain
the information. 49 C.F.R 9 382.413(b).
In order to facilitate access to this information. the City must provide each of the
driver's previous employers within the two (2) preceding years the driver's specific7 written
authorization for release of the information. 49 C.F.R 9 382.4l3(d). See Form 2
(Authorization for Prior Drug and Alcohol Test Results Form). Upon receipt of the driver's
written request7 the former employers must make this information available to the City.
49 C.F.R ~ 382.405(f). The release of information may take the form of personal interviews7
telephone interviews, letters, or any other method of obtaining information that ensures
confidentiality. 49 C.F.R. ~ 382.413(e). In addition, the information may be provided
directly by the driver, so long as the City assures itself that the information is true and
accurate. 49 C.F .R. ~ 382.413(f). The City must maintain a written, confidential record with
respect to each past employer contacted. 49 C.F.R 9 382.413(c). Disclosure of the
information obtained by the City is permitted only as expressly authorized by the terms of the
driver's request 49 C.F.R ~ 382.405(f).
953/18101618 6/6196
6
C 1996 Popham Haik Schnobrich &. Kaufman. Ltd.
The City may not use a driver to perform safety-sensitive functions if the City obtains
information on the driver's alcohol test with a concentration of 0.04 or greater, verified
positive controlled substances test result, or refusal to be tested by the driver, without
obtaining information on the driver's subsequent compliance with the referral and
rehabilitation requirements of 49 C.F.R. ~ 605. 49 C.F.R ~ 382.413(g).
B. BACKGROUND CHECKS FOR NON-EMPLOYEE DRIVERS
The FHW A rules require the City to verify once every six (6) months that each driver
that the City uses more than once per year, but does not employ, participates in an alcohol
and controlled substances program that meets the requirements of Title 49 Code of Federal
Regulations, Sections 40 and 382. 49 C.F.R. ~ 382.301(d)(2). See Form 15 (Driver Program
Participation Verification and Release Form). The City must obtain and retain from the
testing program(s) the following information:
· the name(s) and addressees) of the programs;
· verification that the driver participates or participated in the program(s);
. verification that the program(s) conform(s) to the procedural requirements of 49
C.F.R. ~ 40 (entitled "Procedures for Transportation Workplace Drug and
Alcohol Testing Programs");
· verification that the driver is qualified under the FHW A rules, including
verification that the driver has not refused to be tested for alcohol or controlled
substances;
· the date the driver was last tested for controlled substances; and
· the results of any tests taken within the previous six (6) months and any other
violations of the FHW A rules concerning prohibited conduct.
49 C.F.R. ~ 382.301(d)(1); 49 C.F.R. ~ 382.301(d)(2). The driver's written authorization is
necessary for the release of such drug and alcohol testing information. Accordingly, non-
employee drivers must execute a consent form authorizing the City to obtain the required
information. If the information is unavailable, the City must perform pre-employment
controlled substances testing for such drivers. 49 C.F.R. ~ 382.301(d)(2).
9S3/181016186/6I96
7
C 1996 Popham Haile Schnobrich & Kaufman, Ltd.
v. REOUIRED TESTING
A. PRE-EMPLOYMENT TESTING
Prior to the first time a driver performs a safety-sensitive function for the City, the
City must require the driver to undergo pre-employment testing for controlled substances. 49
C.F.R. ~ 382.301(a). See Form 3 (Pre-employment Controlled Substances Consent Form).
Although the FHW A regulations would have originally required pre-employment alcohol
testing as well, this requirement has been repealed. 49 C.F.R. ~ 382.301(e). A driver may
not perform safety-sensitive functions unless the driver has received a controlled substances
test result from the medical review officer indicating a verified negative test result. 49 C.F.R.
~ 382.301(a). Thus, any offer of employment should be made conditional upon successfully
passing a pre-employment controlled substances test.
The City is not required to administer a pre-employment controlled substances test if
(1) the driver has participated in a drug testing program (i.e. for a previous employer) that
meets the requirements of the FHW A rules within the previous thirty (30) days; (2) while
participating in that program, the driver either (i) was tested for controlled substances within
the past six (6) months from the date of application with the City or (ii) participated in a
random controlled substances testing program for the previous twelve (12) months from the
date of application with the City; and (3) the City ensures that no prior employer of the driver
of whom the City has knowledge has records of a violation of the FHW A rules or the
controlled substances use rule of another DOT agency within the previous six (6) months. 49
C.F.R. ~ 382.301(c).
If the City exercises this exception, it must contact the alcohol and controlled
substances testing program(s) in which the driver participates or participated and obtain the
following information:
· the name(s) and addressees) of the programs;
· verification that the driver participates or participated in the program(s);
· verification that the program(s) conform(s) to the procedural requirements of 49
C.F.R. ~ 40 (entitled "Procedures for Transportation Workplace Drug and
Alcohol Testing Programs");
· verification that the driver is qualified under the FHW A rules, including
verification that the driver has not refused to be tested for alcohol or controlled
substances;
· the date the driver was last tested for controlled substances; and
953/181016186/6/96
8
C 1996 Popham Haik Schnobrich de. Kaufman. Ltd.
. the results of any tests taken within the previous six (6) months and any other
violations of the FHW A rules concerning prohibited conduct.
49 C.F.R. ~ 382.301(d)(1).
The City must notify an applicant of the results of a pre-employment controlled
substances test if the applicant requests such results within sixty (60) calendar days of being
notified of the disposition of the employment application. 49 C.F.R. ~ 382.4l1(a). See Form
7 (Controlled Substances Test Results Notification Form).
B. POST-ACCIDENT TESTING
As soon as practicable following an accident involving a commercial motor vehicle
operating on a public road in commerce, the City must test for alcohol and controlled
substances each surviving driver (1) who was performing safety-sensitive functions with
respect to the vehicle, if the accident involved the loss of human life; or (2) who receives a
citation under State or local law for a moving traffic violation arising from the accident if the
accident involved bodily injury to any person who, as a result of the injury, immediately
receives medical treatment away from the scene of the accident or one or more motor
vehicles incurring disabling damage as a result of the accident, requiring the vehicle to be
transported away from the scene by a tow truck or other motor vehicle. 49 C.F.R.
~ 382.303(a). The term "accident" does not include an occurrence involving only boarding
and alighting from a stationary motor vehicle; an occurrence involving only the loading or
unloading of cargo; or an occurrence in the course of the operation of a passenger car or a
multipurpose passenger vehicle unless the vehicle is transporting passengers for hire or
hazardous materials of a type and quantity that require the motor vehicle to be marked or
placarded in accordance with 49 C.F.R. ~ 177.823. 49 C.F.R. ~ 303(f). See Form 12 (Post-
Accident Record Form).
The City must provide drivers with necessary post-accident information, procedures,
and instructions, prior to the driver operating a commercial motor vehicle, so that drivers will
be able to comply with the post-accident testing requirements of the FHW A regulations. 49
C.F.R. ~ 382.303(d). A driver who is subject to post-accident testing must remain readily
available for such testing or may be deemed by the City to have refused to submit to testing.
49 C.F.R. ~ 382.303(c). Nothing in the FHW A rules, however, shall be construed to require
the delay of necessary medical attention for injured people following an accident or to
prohibit a driver from leaving the scene of an accident for the period necessary to obtain
assistance in responding to the accident, or to obtain necessary emergency medical care. 49
C.F.R. ~ 382.303(c).
If a required post-accident alcohol test does not occur within two (2) hours following
the accident, the City must prepare and maintain on file a record stating the reasons the test
was not promptly administered. See Form 12 (Post-Accident Record Form). If the post-
accident alcohol test is not administered within eight (8) hours following the accident, the
953/181016186/6/96o
9
C 1996 Popham Haik Schnobrich &. Kaufman. Ltd.
City must cease attempts to administer an alcohol test and shall prepare and maintain a
similar record. See Fonn12 (Post-Accident Record Form). Records shall be submitted to the
FHW A upon the request of the Associate Administrator. 49 C.F.R. ~ 382.303(b)(1).
Similarly. if a required post-accident controlled substances test is not conducted within
thirty-two (32) hours following the accident7 the City must cease attempts to administer a
controlled substances test and prepare and maintain on file a record stating the reasons the
test was not promptly administered. See Form12 (Post-Accident Record Form). Records
shall be submitted to the FHW A upon request of the Associate Administrator. 49 C.F.R. ~
382.303(b)(2). See Form 12 (Post-Accident Record Form).
The results of a breath or a blood test for the use of alcohol or a urine test for the use
of controlled substances, conducted by Federal, State, or local officials having independent
authority for the test7 will be considered to meet the requirements of the FHW A rules if such
tests conform to the applicable Federal, State, or local requirements, and the results of the
tests are obtained by the City. 49 C.F.R. ~ 382.303(e).
c. R.\NDOIVl TESTING
The FHW A rules require the City to conduct alcohol and controlled substances testing
on a random selection basis. The City must select drivers for testing by use of a scientifically
valid method. such as a random number table of a computer-based random number generator
that is matched with drivers' Social Security numbers, payroll identification numbers, or other
comparable identifying numbers. Under the selection process used, each driver must have an
equal chance of being selected each time selections are made. 49 C.F.R. 9 382.305(i).
Typically. the City will contract with a third party administrator or consortium to administer
the random selection process.
The City must randomly select a sufficient number of drivers for alcohol testing and
controlled substances testing during each calendar year to equal an annual testing rate not less
than the respective minimum annual percentage rates for random alcohol testing and
controlled substances testing as determined by the FHW A administrator. 49 C.F.R. ~
382.305(j). At the current time, the minimum annual percentage rate for random controlled
substances testing is fifty percent (50%) of the City's average number of driver positions. 49
C.F.R. ~ 382.305(b)(2). See Form 13 (Controlled Substances Random Testing Documentation
Form). The minimum annual percentage rate for random alcohol testing is twenty-five
percent (25%) of the City7s average number of driver positions. 49 C.F.R. 9 382.305(b)(1).
See Form 14 (Alcohol Random Testing Documentation Form). These minimum testing rates
are subject to change by the FHW A.
The City must ensure that random tests are conducted on an announced basis'
throughout the calendar year and that the dates for administering random alcohol and
controlled substances tests are spread throughout the calendar year. 49 C.F.R. ~ 382.305(k).
The FHW A recommends testing at least four (4) times per year.
953/18101618 6/6196
10
C 1996 Popham Haik Schnobrich de. Kaufman. Ltd.
A driver may only be tested for alcohol while the driver is performing safety-sensitive
functionsy just before the driver is to perform safety-sensitive functionsy or just after the driver
has ceased performing such functions. 49 C.F.R. ~ 382.305(m). Each driver who is notified
of selection for random alcohol or controlled substances testing must proceed to the test site
immediately. If the driver is performing a safety-sensitive function at the time of notification,
the driver must cease performing the safety-sensitive function (other than operating a
commercial motor vehicle) and report to the designated test site as soon as possible. 49
C.F.R. ~ 382.305(1).
D. REASONABLE SUSPICION TESTING
1. DETERMINA TION OF REASONABLE SUSPICION
When the City has reasonable suspicion to believe that a driver has violated the
prohibitions of the FHW A rules, the City must require the driver to submit to an alcohol or
controlled substances testy except when the City merely believes that the driver has violated
the FHW A rules regarding alcohol possession. 49 C.F.R. ~ 382.307(a) & (b). The City's
determination that reasonable suspicion exists to require the driver to undergo an alcohol or
controlled substances test must be based on specific contemporaneous, articulable
observations concerning the appearance, behavior, speech or body odors of the driver. See
Form I I (Observed Behavior - Reasonable Suspicion Record Form). In the case of controlled
substances, the observations may include indications qf the chronic and withdrawal effects of
controlled substances. 49 C.F.R. ~ 382.307(b).
2. SUPERVISOR TRAINING
The required observations for alcohol and/or controlled substances reasonable
suspicion testing must be made by a supervisor or City official who has received appropriate
training. 49 C.F.R. ~ 382.307(c). All persons designated to supervise drivers must receive at
least sixty (60) minutes of training on alcohol misuse and at least an additional sixty (60)
minutes of training on controlled substances use. The training must cover the physical,
behaviorat speech. and performance indicators of probable alcohol misuse and use of
controlled substances. 49 C.F.R. ~ 382.603. The person who makes the determination that
reasonable suspicion exists to conduct an alcohol test may not conduct the alcohol test of the
driver. 49 C.F.R. ~ 382.307(c).
3. TIMING OF ALCOHOL TESTING
Reasonable suspicion alcohol testing is authorized only if the observations ~e .made
during, just preceding, or just after the period of the work day that the driver is required to be
in compliance with the FHW A rules. 49 C.F.R. ~ 382.307(d). See Form I 1 (Observed
Behavior - Reasonable Suspicion Record Form). A driver may be directed by the City to
undergo reasonable suspicion alcohol testing while the driver is performing safety-sensitive
....-.
953/181016186/6196
11
C 1996 Popham Haik Schnobrich &. Kaufman, Ltd.
functions, just before the driver is to perform safety-sensitive functions, or just after the driver
has ceased performing such functions. 49 C.F.R. ~ 382.307(d).
If a reasonable suspicion alcohol test is not administered within two (2) hours
following the determination of reasonable suspicion, the City must prepare and maintain on
file a record stating the reasons the alcohol test was not promptly administered. See Form 11
(Observed Behavior - Reasonable Suspicion Record Form). If a reasonable suspicion alcohol
test is not administered within eight (8) hours following the determination of reasonable
cause, the City must cease attempts to administer an alcohol test and prepare a record stating
the reasons for not administering the test 49 C.F.R. ~ 382.307(e)(1). See Form!! (Observed
Behavior - Reasonable Suspicion Record Form).
4. REMOVAL FROM SAFETY-SENSITIVE FUNCTIONS WHEN
ALCOHOL TEST NOT ADMINISTERED
Notwithstanding the absence of a reasonable suspicion alcohol test required by the
FHW A rules, no driver may report for duty or remain on duty requiring the performance of
safety-sensitive functions while the driver is under the influence of or impaired by alcohol, as
shown by the behavioraL speech, and performance indicators of alcohol misuse, nor may the
City permit the driver to perform or continue to perform safety-sensitive functions until (1) an
alcohol test is administered and the driver's alcohol concentration measures less than 0.02; or
(2) twenty-four (24) hours have elapsed following the determination of reasonable suspicion
that the driver has violated the FHWA rules concerning the use of alcohol. 49 C.F.R. ~
382.307(e)(4). The apparent purpose of this provision is to require the City to remove a
driver who appears to be under the influence of alcohol even though a reasonable suspicion
test has not been administered.
Except as provided in the preceding paragraph, the City may not take any action under
the FHW A rules against a driver based solely on the driver's behavior and appearance, with
respect to alcohol use, in the absence of an alcohol test. 49 C.F.R. ~ 382.307(e)(3).
5. WRITTEN RECORD OF TESTING
The City must create a written record of the observations leading to a controlled
substance reasonable suspicion test. See Forml! (Observed Behavior - Reasonable Suspicion
Record Form). The written record must be signed by the supervisor or City official who
made the observations within twenty-four (24) hours of the observed behavior or before the
results of the controlled substances test are released, whichever is earlier. 49 C.F.R. ~
382.307(f). See Form!! (Observed Behavior - Reasonable Suspicion Record Form). We
recommend that the City create a similar record for reasonable suspicion alcohol tests.
953/181016186/6/96
12
C 1996 Popha.m Haik Schnobrich dr. Kaufman. ltd.
E. RETURN- TO-DUTY TESTING
Before a driver returns to duty requiring the performance of a safety-sensitive function
after engaging in conduct prohibited by the FHW A rules concerning alcohol~ the City must
ensure that the driver undergoes a return-to-duty alcohol test with a result indicating an
alcohol concentration of less than 0.02. 49 C.F.R. ~ 382.309(a). If the prohibited conduct
involved controlled substances~ the driver must undergo a return-to-duty controlled substances
test with a verified negative result. 49 C.F.R. ~ 382.309(b).
F. FOLLOW-UP TESTING
Each driver who has engaged in conduct prohibited by the FHW A rules must be
evaluated by a Substance Abuse Professional who will determine what assistance, if any, the
employee needs in resolving problems associated with alcohol misuse and controlled
substances use. 49 C.F.R. ~ 382.605(b). Following a determination by a Substance Abuse
Professional that a driver is in need of assistance in resolving problems associated with
alcohol misuse and/or use of controlled substances, the City must ensure that the driver is
subject to unannounced follow-up alcohol and/or controlled substances testing. 49 C.F.R. ~
382.311 (a). Follow-up alcohol testing may be conducted only when the driver is performing
safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or
just after the driver has ceased performing safety-sensitive functions. 49 C.F.R. ~ 382.311 (b).
The number and frequency of such follow-up testing will be directed by a Substance
Abuse Professional. and consist of at least six (6) tests in the first twelve (12) months
following the driver's return to duty. 49 C.F.R. ~ 382.605(c)(2)(ii). The City may direct the
driver to undergo return-to-duty and follow-up testing for both alcohol and controlled
substances, if the Substance Abuse Professional determines that return-to-duty and follow-up
testing for both alcohol and controlled substances is necessary for that particular driver. 49
C.F.R. ~ 382.605(c)(2)(ii). Follow-up testing shall not exceed sixty (60) months from the
date of the driver's return to duty. The Substance Abuse Professional may terminate the
requirement for follow-up testing at any time after the first six (6) tests have been
administered. if the substance abuse professional determines that such testing is no longer
necessary. 49 C.F.R. ~ 382.605(c)(2)(ii).
G. BIENNIAL (PERIODIC) TESTING
Controlled substances testing is no longer required when a driver receives his or her
biennial (periodic) physical examination and therefore is not authorized by the City's Policy
on Alcohol and Controlled Substances for Commercial Drivers. Instead~ n[p]eriodic tests,
which generally are performed as part of required physical examinations for certificati~n of
some employees, are discretionary under the Act." 59 Fed. Reg. 7321 (Feb. 15, 1994). Thus,
employers may require drivers under their own authority to undergo controlled substances and
alcohol testing as part of a driver's routine physical examination~ but are not required to do
so. .If the City wishes to require biennial testing, it should revise the Policy accordingly.
9S3/181016186/6196
13
C 1996 Popham Haik Schnobrich & Kaufman, Ltd.
H. REOUIRED CONSENT FORMS
The Department of Transportation has created the following forms that must be
completed in conjunction with required drug and alcohol testing: "Drug Testing Custody and
Control Form" and "Alcohol Testing Form." The City should obtain these forms from its
testing laboratory or provider of collection services.
In addition, before requesting an employee or job applicant to undergo drug or alcohol
testing, the City may wish to provide the employee or job applicant with a form, developed
by the City, on which to consent to the test and acknowledge that the employee or job
applicant has seen the City's drug and alcohol testing policy. We have drafted several forms
to assist the City with this effort. See Form 3 (Pre-employment Controlled Substances
Consent Form), Form 4 (Controlled Substances Consent Form), and Form 8 (Alcohol Test
Consent Form).
I. COST OF REOUIRED TESTING
The FHW A rules do not address whether an employer must pay for the cost of some,
or all, drug and alcohol tests required by federal law. Some states may require the City to
pay for the cost of all drug and alcohol testing of employees. As drafted, the City Policy on
Alcohol and Controlled Substances for Drivers requires the City to pay for all pre-
employment. post-accident. random. and reasonable suspicion drug and alcohol testing. In
contrast, the Policy requires drivers to pay for all requested confirmatory re-tests, return-to-
duty, and follow-up testing. This is because such tests are either voluntary or necessitated
solely by the driver's own misconduct. The City, however. should bargain with any
collective bargaining representatives over this issue before requiring drivers to pay for any
drug and alcohol testing.
VI. COLLECTION AND TESTING PROCEDURES
A. REOUIRED NOTICE BEFORE TESTING
Before performing an alcohol or controlled substances test, the City must notify the
driver that the alcohol or controlled substances test is required by the FHW A rules. The City
may not represent that a test conducted under its own authority is required by the FHW A
rules. See Form 3 (Pre-employment Controlled Substances Consent Form), Form 4
(Controlled Substances Consent Form), and Form 8 (Alcohol Test Consent Form).
B. PROCEDURES FOR ALCOHOL TESTING
The City must ensure that all alcohol testing conducted pursuant to FHW A reg"ulations
complies with the procedures set forth in 49 C.F.R. ~ 40. See 49 C.F.R. ~ 382.105.
Employees may be tested for alcohol just before, during, or immediately following
performance of a safety-sensitive function. Screening tests for alcohol concentration may be
953/18101618 6/6196
14
C 1996 Popham Haik Schnobrich &. Kaufman. Ltd.
performed utilizing a non-evidential screening device included by the National Highway
Traffic Safety Administration on its conforming products list (e.g. a saliva screening device)
or an evidential breath testing device ("EBT") operated by a trained breath alcohol technician
("BAT") at a collection site. See 49 C.F.R. ~~ 40.61-40.65. All confirmation tests must be
performed utilizing an EBT operated by a BAT. Each test should be conducted in a location
that affords privacy to the driver being tested, unless unusual circumstances (e.g., when it is
essential to conduct a test outdoors at the scene of an accident) make it impracticable to
provide such privacy. 49 C.F.R. ~ 40.57.
In the case of breath alcohol testing, the tests must be conducted by a breath alcohol
technician ("BA T"). 49 C.F.R. ~ 51 (a). An individual must complete a course of instruction
and demonstrate competence in the operation of the specific evidential breath testing device
("EBT") he or she will use to qualify as a BAT. 49 C.F.R. ~ 51 (a). A supervisor qualified
as a BAT may conduct the alcohol test for an employee under his or her supervision only if
another BAT is unavailable to perform the test in a timely manner. 49 C.F.R. ~ 40.51 (b).
When the driver enters the alcohol testing location for a breath alcohol test, the BAT
will require the driver to provide positive identification either through the use of a photo
identification card or identification by an employer representative. On request by the driver,
the BAT shall also provide positive identification to the driver. The BAT will explain the
testing procedure to the employee at that time.
The BAT will conduct a screening test first. Before the screening test, the BAT will
complete Step 1 on the Breath Alcohol Testing Form provided to the driver, and the driver
shall then complete Step 2 on the form, signing the certification. Refusal by the employee to
sign the certification shall be regarded as a refusal to take the test. Inability to provide an
adequate amount of breath will also be regarded as a refusal to take the test absent a written
statement from a licensed physician that the inability to provide an adequate amount of breath
is genuine.
If the result of the screening test is a breath alcohol concentration of less than 0.02. no
further testing is authorized and the BAT will transmit the result of the test to the City in a
confidential manner. 49 C.F.R. ~ 40.65(h)(3)(i)( 1). The City must designate one or more
employee representative(s) for purpose of receiving and handling alcohol testing results in a
confidential manner. All communications by BATs to the City concerning the alcohol testing
results of employees shall be to a designated City representative. 49 C.F.R. ~
40.65(h)(3)(i)(1). If the result of the screening test is an alcohol concentration of 0.02 or
greater, a confirmation test will be performed. 49 C.F.R. ~ 65. The confmnation test will be
conducted not less that ftfteen (15) minutes and not more than thirty (30) minutes following
completion of the screening test. In the event that the screening and confirmation test. results
are not identical, the confmnation test result is deemed to be the fmal result upon which any
action shall be based. 49 C.F.R. ~ 40.65(0.
9~3/18101618 616196
15
C 1996 Popham Haile Schnobrich &. Kaufman. Ltd.
C. PROCEDURES FOR CONTROLLED SUBSTANCES TESTING
The City must ensure that all controlled substances testing complies with the
procedures set forth in 49 C.F.R. ~ 40. See 49 C.F.R. ~ 382.105. The regulations require
that the City must have one or more designated collection sites which have all necessary
personnel, materials, equipment, facilities and supervision to provide for the collection,
security, temporary storage and shipping or transportation of urine specimens to a certified
drug testing laboratory. 49 C.F.R. ~ 40.25. An independent medical facility may also be
utilized as a collection site, provided that the FHW A's requirements are met. 49 C.F.R.
4O.25(a). We recommend that the City contract with one or more suitable collection sites,
ensuring that the collection site is familiar with DOT drug testing procedures.
According to the FHW A regulations, a collection site may be any suitable location
where a specimen can be collected under conditions that ensure security and privacy. 49
C.F.R. ~ 40(a). So long as the City complies with those requirements, the collection site may
be on the employer's premises or at the employer's facilities. In unusual circumstances, (e.g.,
when it is necessary to conduct a test outdoors at the scene of an accident), a test may be
conducted at a location that does not fully meet the requirements mentioned above. 49 C.F.R.
~ 40.25(f)(9).
Urine collection for controlled substances testing rhust be conducted by a "collection
site person." 49 C.F.R. 9 40.23(d)(2). This person must have successfully completed training
to carry out this function or be a licensed medical professional or technician who has been
provided instructions for collection. 49 C.F.R. ~ 40.23(d)(2). Unless it is impractical for any
other individual to perform this function, a direct supervisor of an employee may not serve as
the collection site person for testing of the employee. 49 C.F.R. ~ 40.23(d)(3). Thus, it is
advisable to have a non-employee (Le. independent collection site) administer specimen
collection to the extent possible.
The City must use a "split urine specimen" collection procedure for controlled
substances testing, as described in the regulations. 49 C.F.R. ~ 40.25(f)(lO)(i)(B). If the test
result of the primary specimen is positive, the employee may request that the Medical Review
Officer ("MRO") direct that the split specimen be tested in a different Department of Health
and Human Services ("DHHS")-certified laboratory for presence of the controlled substance(s)
for which a positive result was obtained in the test of the primary specimen. 49 C.F.R. ~
40.25(f)(lO)(ii)(E). The MRO must honor such request if made within seventy-two (72)
hours of the employee having been notified of a verified positive test result. 49 C.F.R. ~
40.25(f)( 10)(ii)(E).
Action required by federal regulation as a result of a positive drug test (e.g., removal
from performing a safety-sensitive function) will not be stayed during the result of the test of
the split specimen. 49 C.F.R. ~ 40.25(f)(lO)(ii)(H). If the result of the test of the split
specimen fails to reconfIrm the presence of the drug(s) or drug metabolite(s) found in the
primary specimen, or if the split specimen is unavailable, inadequate for testing or untestable,
'-.---.
953/181016186/6196
16
C 1996 Popham Haik Schnobrich &. Kaufman. Ltd.
the MRO will cancel the test and report the cancellation and the reasons for it to the
Department of Transportation, the City, and the driver. 49 C.F.R. ~ 40.25(f)(lO)(ii)(I).
The regulations further provide that "when specified by DOT agency regulation or
required by the collection site (other than an employer site) or by the laboratory, the
employee may be required to sign a consent or release form authorizing the collection of the
specimen, analysis of the specimen for designated controlled substances, and release of the
results to the employer. The employee may not be required to waive liability with respect to
negligence on the part of any person participating in the collection, handling or analysis of
the specimen or to indemnify any person for the negligence of others." 49 C.F.R. ~
40.25(f)(22)(ii). See Form 3 (Pre-employment Controlled Substances Consent Form), Form 4
(Controlled Substances Consent Form), and Form 8 (Alcohol Test Consent Form).
D. CHAIN OF CUSTODY AND CONFIDENTIALITY OF TEST RESULTS
All controlled substances and alcohol testing must be performed in compliance with
federal law, including use of the services of an appropriately licensed testing laboratory which
observes applicable chain-of-custody procedures. 40 C.F.R. g 40.25(c). The City must use
procedures to test for the presence of alcohol and controlled substances in order to protect the
driver and the integrity of the testing process, safeguard the validity of the test results, and
ensure that test results are attributed 'to the correct driver. 49 C.F.R. ~ 40.25(f). All reports
of tests must be kept in the strictest confidence by the laboratory and provided only to the
City's MRO, unless the driver provides written consent or disclosure is otherwise permitted or
required by law. 49 C.F.R. g 40.33(i).
E. QUALITY CONTROL PROCEDURES
The regulations require the City to use blind testing quality control procedures. Under
these procedures, the City must submit three (3) blind performance specimens for each 100
employee specimens the employer submits, up to a maximum of 100 blind performance test
specimens submitted per quarter. See 49 C.F.R. g 40.31(d). The regulations further regulate
the number and manner of blind performance test specimens. Typically, employers belong to
a testing consortium, which is responsible for submitting blind samples on behalf of its
members. See 49 C.F.R. ~ 40.31(d)(5).
VII. REVIEW AND NOTIFICA nON OF TEST RESULTS
A. REVIEW OF TEST RESULTS BY A MEDICAL REVIEW OFFICER
The FHW A rules define a Medical Review Officer ("MRO") as a licensed physician
(medical doctor or doctor of osteopathy) responsible for receiving laboratory results generated
by a drug testing program who has knowledge of substance abuse disorders and has
appropriate medical training to interpret and evaluate an individual's confirmed positive test
953/18101618 6/6196
17
C 1996 Popham Haik Schnobrich &. Kaufman. Ltd.
result together with his or her medical history and any other relevant biomedical information.
49 C.F.R. ~ 40.3.
Prior to the transmission of controlled substances test results to the City, the MRO .
will review confirmed positive test results received from the testing laboratory. 49 C.F.R.
~ 40.33(a). The MRO will examine alternate medical explanations for any positive test result.
49 C.F.R. ~ 40.33(a)(1). In addition, the MRO will give the driver an opportunity to discuss
the test result before making a final decision to verify a positive test result. 49 C.F.R. ~
40.33(c).
If the MRO is unable to contact the driver, the MRO will report to the City that the
MRO has made all reasonable efforts to contact the driver. 49 C.F.R. ~ 40.33(c). The City,
as soon as practicable, must request that the driver contact the 1vlRO prior to dispatching the
driver or within twenty-four (24) hours, whichever is earlier. 49 C.F.R. ~ 382.407(b). The
designated management official must make reasonable efforts to contact and request each
driver who submitted a specimen under the City's program, regardless of the driver's
employment status, to contact and discuss the results of the controlled substances test with a
MRO who has been unable to contact the driver. 49 C.F.R. ~ 382.411(b). The designated
management official must immediately notify the MRO that the driver has been notified to
contact the MRO within twenty-four (24) hours. 49 C.F.R. ~ 382.411(c).
The MRO may verify a test as positive without having communicated directly with the
driver if (l) the driver expressly declines the opportunity to discuss the test; (2) more than
five (5) days have elapsed after the City, at the MRO's request, has instructed the driver to
contact the 1vlRO to discuss the test result; or (3) if applicable federal regulations permit such
a verification. 49 C.F.R. ~ 40.33(c)(5).
B. l\'IEDICAL REVIEW OFFICER NOTIFICATION OF TEST RESULTS
TO THE City
The MRO may report controlled substances results to the City using any
communications device. but in all instances a signed, written notification must be forwarded
within three (3) business days of completion of the MRO's review pursuant to 49 C.F.R. ~
40. The City should use this information to complete Form 6 (Controlled Substances Test
Results Form). The MRO must report the following information to the City:
. that the controlled substances test being reported was in accordance with the
procedural safeguards contained in 49 C.F.R. ~ 40 and the FHW A rules;
. the name of the individual for whom the test results are being reported;
. the type of test indicated on the custody and control form (Le. random, post-
accident, etc.);
953/181016186/6196
18
C 1996 Popham Haik Schnobrich dt Kaufman. Ltd.
· the date and location of the test collection;
· the identities of persons or entities performing the collection, analysis of the
specimens and serving as the medical review officer for the specific test; and
· the verified results of a controlled substances test, either positive or negative,
and if positive, the identity of the controlled substance(s) for which the test was
verified as positive.
49 C.F.R. ~ 382.407(a). The City should record this information on its own form for future
reference. See Form 6 (Controlled Substances Test Results Form).
c. EMPLOYER NOTIFICATION OF TEST RESULTS TO APPLICANTS !
AND DRIVERS
Upon notification by the MRO, the City must notify a driver of the results of a pre-
employment controlled substances test if the driver requests such results within sixty (60)
calendar days of being notified of the disposition of the employment application. 49 C.F.R.
~ 382.411(a). See Form 7 (Controlled Substances Test Results Notification Form). In
addition, the City must notify a driver of the results of random, reasonable suspicion, and
post-accident tests for controlled substances if the test results are verified positive. S~e Form
7 (Controlled Substances Test Results Notification Form). The City must also inform the
driver which controlled substance or substances were verified as positive. 49 C.F.R. ~
382.411(a). We also recommend that the City notify drivers of the results of all retum-to-
duty and follow-up controlled substances tests.
D. RIGHT TO CONFIRl\'IA TORY RETEST
After being informed of a positive controlled substances test result, an employee may
request through the MRO a reanalysis (or confirmatory retest) of the driver's specimen. This
means a reanalysis of the original specimen, not another specimen subsequently collected. If
the test result of the primary specimen is positive, the employee may request that the MRO
direct that the split specimen be tested in a different DHHS-certified laboratory for presence
of the controlled substance(s) for which a positive result was obtained in the test of the
primary specimen. 49 C.F.R. ~ 40.33(f).
The MRO must honor such request if made within seventy-two (72) hours of the
employee having been notified of a verified positive test result. Action required by federal
regulation as a result of a positive drug test (e.g., removal from performing a safety-sensitive
function) will not be stayed during the result of the test of the split specimen. If the result of
the test of the split specimen fails to reconfirm the presence of the drug(s) or drug
metabolite(s) found in the primary specimen, or if the split specimen is unavailable,
inadequate for testing or untestable, the MRO will cancel the test, and report the cancellation
and the reasons for it to the DOT, the City, and the driver. 49 C.F.R. ~ 40.33(0. The driver
953/181016186/6196
19
C 1996 Popham Haik Schnobrich de. Kaufman. Ltd.
must be reimbursed for any pay lost if taken out of service based upon a positive test result
which is negated by the second test
VIn. CONSEOUENCES FOR DRIVERS ENGAGING IN PROHIBITED CONDUCT
A. REMOVAL FROM SAFETY-SENSITIVE FUNCTIONS
The FHW A rules provide that no driver may perform safety-sensitive functions,
including driving a commercial motor vehicle, if the driver has engaged in conduct prohibited
by the FHW A rules or an alcohol or controlled substances rule of another DOT agency unless
the driver has completed referral, evaluation, and treatment (discussed under Section VIILC of
this Supervisory Guide). 49 C.F.R. ~ 382.501(a). Similarly, the City may not permit any
driver to perform safety-sensitive functions, including driving a commercial motor vehicle, if
the City has determined that the driver has violated the FHWA. rules. 49 C.F.R. ~ .
382.501(b).
B. CONSE~UENCES FOR DRIVERS WITH AN ALCOHOL
CONCENTR.\ TION BETWEEN 0.02 A~D 0.04
No driver who is found to have an alcohol concentration of 0.02 or greater but less
than 0.04 may perform or continue to perform safety-sensitive functions for the City,
including driving a commercial motor vehicle, until the start of the driver's next regularly
scheduled duty period, but not less than twenty-four (2.4) hours following administration of
the test. 49 C.F.R. ~ 382.505(a). The City may not take any other action against a driver
under the FHW A rules based solely on test results showing an alcohol concentration of less
than 0.04, although the City can take action based on its independent authority. 49 C.F.R.
~ 382.505(b).
C. REFERR.\L.. EVALUATION. AND TREA T:\'IENT
1. NOTIFICA TION OF A V AILABLE RESOURCES
The FHW A rules require the City to advise each driver who has engaged in conduct
prohibited by the FHW A rules or who has a positive alcohol or controlled substances test of
the resources available to the driver in evaluating and resolving problems associated with the
misuse of alcohol and use of controlled substances, including the names, addresses, and
telephone numbers of substance abuse professionals and counseling and treatment programs.
49 C.F.R. ~ 382.605(a). See Form 16 (Resource Contact List). You should adapt this form
to identify resources under contract with the City to provide services and to identify
counseling and treatment programs that are geographically near the City. In parti~ular, you
should identify at least two (2) substance abuse professionals that have been selected by the
City.
953/181016186/6196
20
C 1996 Popham Haik Schaobrich & Kaufman, Ltd.
2. REOUIRED EVALUATION BY SUBSTANCE ABUSE
PROFESSIONAL
Each driver who has engaged in conduct prohibited by the FHW A rules must be
evaluated by a Substance Abuse Professional who will determine what assistance, if any, the
employee needs in resolving problems associated with alcohol misuse and controlled
substances use. 49 C.F.R. ~ 382.605(b). The regulations define a Substance Abuse
Professional as a licensed physician (medical doctor or doctor of osteopathy), or a licensed or
certified psychologist, a licensed or certified social worker, a licensed or certified employee
assistance professional, or a licensed or cenified addiction counselor (certified by the National
Association of Alcoholism and Drug Abuse Counselors Certification Commission) with
knowledge of and clinical experience in the diagnosis and treatment of alcohol and controlled
substances-related disorders. 49 C.F.R. ~ 382.107. The City should be careful to select a
qualified Substance Abuse Professional who is familiar with the FHW A drug and alcohol
testing requirements.
3. REOUIRED RETURN-TO-DUTY TESTING
Before a driver returns to duty requiring the performance of a safety-sensitive function
after engaging in conduct prohibited by the FHW A rules concerning alcohol, the City must
ensure that the driver undergoes a return-to-duty alcohol test with a result indicating an
alcohol concentration of less than 0.02. 49 C.F.R. ~ 382.309(a); 49 C.F.R. ~ 382.605(c)(1).
If the prohibited conduct involved controlled substances, the driver must undergo a return-to-
duty controlled substances test with a verified negative result. 49 C.F.R. ~ 382.309(b); 49
C.F.R. ~ 382.605(c)( 1).
4. FOLLOW-UP EVALUATION AND TESTING
Each driver identified as needing assistance in resolving problems associated with
alcohol misuse or controlled substances use must be evaluated by a Substance Abuse
Professional to determine that the driver has properly followed any rehabilitation program
prescribed by the Substance Abuse Professional, and shall be subject to unannounced follow-
up alcohol and/or controlled substances testing. 49 C.F.R. ~ 382.605(c)(2). The number and
frequency of such follow-up testing shall be as directed by a substance abuse professional,
and consist of at least six (6) tests in the first twelve (12) months following the driver's return
to duty. Follow-up testing shall not exceed sixty (60) months from the date of the driver's
return to duty. The substance abuse professional may tenninate the requirement for follow-up
testing at any time after the first six (6) tests have been administered, if the substance abuse
professional determines that such testing is no longer necessary. 49 C.F.R. ~ 382.605(c)(2)
The City must ensure that a Substance Abuse Professional who detennines thai a
driver requires assistance in resolving problems with alcohol misuse or controlled substances
use does not refer the driver to the substance abuse professional's private practice or to a
....-,
953/18101618 6/6196
21
C 1996 Popham Haik Schnobrich eft Kaufman. Ltd.
person or organization from which the Substance Abuse Professional receives renumeration or
in which the Substance Abuse Professional has a financial interest. 49 C.F.R. ~ 382.605(e).
The FHW A's restriction against such referrals does not prohibit a Substance Abuse
Professional from referring a driver for assistance provided through (1) a public agency, such
as a State, county, or municipality; (2) the City or a person under contract to provide
treatment for alcohol or controlled substances problems on behalf of the City; (3) the sole
source of therapeutically appropriate treatment under the driver's health insurance program; or
(4) the sole source of therapeutically appropriate treatment reasonably accessible to the driver.
49 C.F.R. ~ 382.605(e).
5. RETURN TO SAFETY-SENSITIVE FUNCTIONS
No driver who has engaged in conduct prohibited by the FHW A rules may perform
safety-sensitive functions, including driving a commercial motor vehicle, unless the driver has
met the requirements concerning referral, evaluation, and treatment. 49 C.F.R. ~ 382.503.
Similarly, the City may not permit a driver who has engaged in conduct prohibited by the
FHW A rules to perform safety-sensitive functions, including the driving of a commercial
motor vehicle, unless the driver has met these requirements. 49 C.F.R. ~ 382.503.
6. RESPONSIBILITY FOR THE COST OF EV ALVA TION AND
REHABILITATION
Evaluation and rehabilitation may be provided by the City, by a Substance Abuse
Professional under contract with the City, or by a Substance Abuse Professional not affiliated
with the City. The FH\V A rules provide that the City may decide whether the City or
employees are responsible for the cost of evaluation and treatment. 49 C.F.R. ~ 382.605(d).
As currently drafted, the City Policy on Alcohol and Controlled Substances for Commercial
Drivers requires employees to bear the cost of evaluation and treatment. If your drivers are
unionized, however, you are first required to bargain with the union before adopting this
provision.
7. INAPPLICABILITY TO PRE-EMPLOYMENT TESTING
The requirements of the FHW A rules with respect to referral, evaluation and
rehabilitation do not apply to applicants who refuse to submit to a pre-employment alcohol or
controlled substances test or to applicants who have a pre-employment alcohol test with a
result indicating an alcohol concentration of 0.04 or greater or a controlled substances test
with a verified positive test result. 49 C.F.R. ~ 382.605(f).
D. DISCIPLINE AND DISCHARGE OF El\-IPLOYEES
Strictly speaking, the FHW A rules do not address or limit an employer's ability to
discipline or discharge employees for prohibited conduc~ including failure of a drug or
953/18101618 6/6196
22
C 1996 Popham Haik Schnobrich eft Kaufman. Ltd.
alcohol test~ except under certain rare circumstances.l Moreover, the regulations do not
require employers to provide employees with an opportunity for rehabilitation and treatment
unless such employees are returning to a safety-sensitive function and such treatment has been
recommended by a Substance Abuse Professional. As the DOT has acknowledged~ n[e]xcept
as provided in the [Operating Administration] rules, employers retain their existing authority
with respect to alcohol testing and termination or rehabilitation of their employees and
employees retain their rights with respect to the use or possession of alcohol." 59 Fed. Reg.
7317 (Feb. 15,1994) (emphasis added).
Nonetheless, the City may detennine that rehabilitation is more appropriate than
termination of employees in some circumstances. The City should seek legal advice before
taking disciplinary measures against or tenninating drivers who fail a drug or alcohol test.
The use of improper, unlawful, or unfair procedures (whether real or perceived) may cause
employees to bring litigation against the City. Moreover, compliance with the Americans
with Disabilities Act and the Family and Medical Leave Act can be incredibly complicated in
the context of employees with alcohol or chemical dependency problems.
IX. NOTIFICA TION OF EMPLOYEE CONVICTIONS
The Federal Drug Free Workplace Act of 1988 applies to all federal contractors and
federal grant recipients. The City should determine whether it is covered by the Act. Among
other requirements, the Act requires employees to notify the City of any criminal drug statute
convictions for a violation occurring in the workplace within five (5) days of such a
conviction. See 21 V.S.C. g 853(a), et. seq. For example, if an employee is arrested and
convicted of unlawful possession of controlled substances in the workplace, that employee
must inform the City of the conviction. 21 V.S.C. g 853(a)( 1 )(D)(ii). Moreover, if the City
is informed of such a conviction, or if the City learns of such a conviction in any other way,
the City must in turn inform all federal agencies for which it is performing a contract of the
conviction. 21 V.S.C. g 853(a)(l)(E). The City must provide such notice within ten (10)
days of receiving notice from the employee, or within ten (10) days of learning of the
conviction, whichever is earlier. 21 U .S.C. g 853(a)(l )(E).
Section III of the City Policy on Alcohol and Controlled Substances for Drivers
requires drivers to notify the City of drug-related convictions in the workplace. Because the
Federal Drug Free Workplace Act does not apply to all employers, this requirement is
identified as being based on the City's independent authority.
x. MAINTENANCE AND DISCLOSURE OF RECORDS
1 See 49 C.F.R. g 382.505(b) (limiting sanctions against drivers who test positive for
alcohol with an alcohol concentration between 0.02 and 0.04). Even under this provision,
however, the City may discipline a driver based on its own authority.
9'3/181016186/6196
23
C 1996 Popham Haik Schnobrich &. Kaufman. Ltd.
. .
A. DUTY TO MAINTAIN RECORDS
The FHW A regulations impose a stringent records retention burden upon covered
employers. The City must maintain records of its drug and alcohol testing program, as well
as records of its alcohol and drug misuse prevention efforts. 49 C.F.R. ~ 382.401. The
FHW A has identified a wide variety of specific documents which the City must retain to
comply with its regulations, and has identified particular retention periods for many of these
required documents. In addition, the FHW A has promulgated specific regulations concerning
the preservation of such records by microfllm or other photographic means. See 49 C.F.R. ~
382.401 (d) (incorporating by reference 49 C.F .R. ~ 390.31).
1. RECORDS TO BE KEPT FOR FIVE YEARS
The FHW A requires the City to retain the following documents for a period of at least
five (5) years:
· records of any employee alcohol test results indicating an alcohol concentration
of 0.02 or greater;
· records of driver verified positive controlled substances test results;
· documentation of employee refusals to take required alcohol and/or controlled
substances tests;
· calibration documentation;
· records related to the administration of the alcohol and controlled substances
testing programs;
· driver evaluations and referrals; and
· a copy of each annual calendar year summary required by the FHW A rules.
49 C.F.R. ~ 382.401(b)(I).
2. RECORDS TO BE KEPT FOR TWO YEARS
The FHW A requires the City to retain the following documents for a period of at least
two (2) years:
· records relating to the collection process, including collection logbooks;
· documents relating to the random selection process;
9S3/181016186/6I96
24
C 1996 Popham Haik Schnobrich de. K.wfman. Ltd.
. documentation of breath alcohol technician training;
. documents generated in connection with decisions to administer reasonable
suspicion and post-accident tests;
. documents verifying the existence of a medical explanation of an employee's
inability to provide adequate saliv~ breath or urine for testing; and
. consolidated annual calendar year summaries required by the FHW A rules;
49 C.F.R. ~ 382.401(b)(2); 49 C.F.R. ~ 382.401(c)(1).
3. RECORDS TO BE KEPT FOR ONE YEAR
The City must maintain records of negative and canceled controlled substances test
results (as defined in 49 C.F.R. ~ 40) and alcohol test results with a concentration of less than
0.02 for a minimum of one (1) year. 49 C.F.R. ~ 382.401(b)(3).
4. RECORDS TO BE KEPT FOR AN INDEFINITE PERIOD
The FHW A requires the City to maintain the following documents related to the
education and training of breath alcohol technicians, supervisors, and drivers. 42 C.F.R.
~ 382.401(b)(4). These records must be kept by the City while the employee performs the
functions that required the education and training, and for a period of two (2) years after the
individual ceases to perform those functions. 42 C.F.R. g 382.413(b)(4).
. materials on alcohol and controlled substances use awareness, including a copy
of the employer's policy on alcohol misuse and controlled substances use;
. documentation of compliance with the FHW A's requirement to promulgate a
policy on the misuse of alcohol and use of controlled substances, including the
driver's signed receipt of education materials;
. documentation of training provided to supervisors for the purpose of qualifying
the supervisors to make a determination concerning the need for alcohol and/or
controlled substances testing based on reasonable suspicion;
. documentation of training for breath alcohol technicians; and
. certification that any training complies with FHW A requirements.
49 C.F.R. ~ 382.401(c)(5).
9~3/181 01618 6/6196
25
C 1996 Popham Haik Schnobrich &. Kaufman. Ltd.
5. OTHER REOUIRED RECORDS
In addition to the records specified above, the FHW A rules require the City to
maintain other specific records. 49 C.F.R. ~ 382.40l(c). It is unclear from the regulations,
however, how long the following records must be maintained:
. records relating to a driver's test results, including the City's copy of the
alcohol test form and the results of the test;
. the City's copy of the controlled substances test chain of custody and control
form;
. documents sent by the Medical Review Officer to the City;
. documents related to the refusal of any driver to submit to an alcohol or
controlled substances test required by the FHW A rules;
. documents presented by a driver to dispute the result of an alcohol or
controlled substances test administered under the FHW A rules;
. documents generated in connection with verifications of prior employers'
alcohol or controlled substances test results;
. records of efforts made to obtain information regarding a driver's prior
employers' alcohol and controlled substances information, if the City is unable
to obtain that information;
. records related to other violations of the FHW A rules;
. records pertaining to a determination by a Substance Abuse Professional
concerning a driver's need for assistance;
. records concerning a driver's compliance with recommendations of a Substance
Abuse Professional;
. agreements with collection site facilities, laboratories, breath alcohol
technicians, screening test technicians, Medical Review Officers, consortia, and
third-party service providers;
. names and positions of officials and their role in the City's alcohol and "
controlled substances testing program(s);
. quarterly laboratory statistical summaries of urinalysis required by 49 C.F.R. ~
40.29(g)(6); and
"-.
9S3/18101618 6/6196
26
C 1996 Popham Haile SchDObrich & Kaufman. Ltd.
· the City's drug testing policy and procedures.
49 C.F.R. ~ 382.401(c)(2); 49 C.F.R. ~ 382.401(c)(3); 49 C.F.R. ~ 382.401(c)(6). In order to
be safe, we recommend that you keep records concerning specific drivers during the duration
of their employment and for at least five (5) years thereafter, and all other records for at least
five (5) years.
B. LOCA TION OF REOUIRED RECORDS
The FHW A requires the City to maintain required records in a secure location with
controlled access. 49 C.F.R. ~ 382.401(a). The City must lock the location in which the
documents are kep~ and may allow access to the documents only to persons with "a
legitimate need" to see the records. 49 C.F.R. ~ 382.405. The City must make such records
available for inspection at the City's principal place of business within two (2) business days
after a request has been made by an authorized representative of the Federal Highway
Administration. 49 C.F.R. ~ 382.401(d).
C. REPORTING INFORMATION TO THE FHWA IN A l\tIANAGEMENT
INFORMA TION SYSTEM
The City must prepare and maintain an annual calendar year summary of the results of
their alcohol and controlled substances testing programs performed under the FHW A rules
upon request by the FHW A. 49 C.F.R. ~ 382.403(a). See Form 17 (FH\VA. Drug and
Alcohol Testing MIS Data Collection Form) & Form 18 (FHW A Drug and Alcohol Testing
MIS "EZ" Data Collection Form). Absent such a request, the City is not required to prepare
such a summary (although it must maintain the records and information necessary to prepare
such a summary in the event a request is made). The FHWA has prescribed detailed rules
concerning the information that must be contained in the annual summary. 49 C.F.R. ~
382.403(c)-(f).
D. PROVIDING ACCESS TO FACILITIES AND RECORDS
1. ACCESS TO RECORDS
A driver is entitled, upon written request, to obtain copies of any records pertaining to
the driver's use of alcohol or controlled substances, including any records pertaining to his or
her alcohol or controlled substances tests. The City must promptly provide any records
requested by the driver. Access to a driver's records shall not be contingent upon payment
for records other than those specifically requested. 49 C.F.R. ~ 382.405(b). Furthermore,
the FHW A rules provide that any driver who is the subject of a drug test conducted. under
DOT rules shall, upon written request, have access to any records relating to his or her drug
test and any records relating to the results of any relevant certification, review or revocation-
of-certification proceedings. 49 C.F.R. ~ 40.37.
9S3/18101618616/96
27
C 1996 Popham Haik Schnobrich &. Kaufman. Ltd.
2. CONFIDENTIALITY OF INFORMATION
Except as required by law or expressly authorized or required by the FHW A rules, the
City may not release driver information that is contained in records required to be maintained
by the FHW A rules. 49 C.F.R. ~ 382.405(a). The City must release information regarding a
driver's records as directed by the specific, written consent of the driver authorizing release of
the information to an identified person. Release of such information by the person receiving
the information is permitted only in accordance with the terms of the employee's consent. 49
C.F.R. ~ 382.405(h).
Notwithstanding the limitations on release of drug and alcohol testing records, the
FHW A rules provide that an employer may disclose information required to be maintained by
the FHW A rules pertaining to a driver, the decision maker in a lawsuit, grievance, or other
proceeding initiated by or on behalf of the individual, and arising from the results of an
alcohol and/or controlled substances test administered under the FHW A rules, or from the
employer's determination that the driver engaged in conduct prohibited by the FHW A rules
(including, but not limited to, a worker's compensation, unemployment compensation, or
other proceeding relating to a benefit sought by the driver). 49 C.F.R. g 382.405(g).
3. DISCLOSURES TO GOVERNMENT AGENCIES
The City must permit access to all facilities utilized in complying with the
requirements of the FHVI A rules to the Secretary of Transportation, any DOT agency, or any
State or local officials with regulatory authc ity over the employer or any of its drivers. 49
C.F.R. ~ 382.405(c). In addition, the City r. ~st make available copies of all results for the
City alcohol and/or controlled substances testing conducted under the FHWA. rules and any
other information pertaining to the City's alcohol misuse and/or controlled substances
program when requested by the Secretary of Transportation, any DOT agency, or any State or
local officials with regulatory authority over the City or any of its drivers. 49 C.F.R. ~
382.405(d).
When requested by the National Transportation Safety Board as part of an accident
investigation, the City must disclose information related to the City's administration of a post-
accident alcohol and/or controlled substances test administered following the accident under
investigation. 49 C.F.R. ~ 382.405(e).
XI. PENAL TIES FOR NONCOMPLIANCE WITH THE FHW A RULES
The DOT considers compliance with the new FHW A rules a high priority, and has
stated that it will not tolerate intentional violations of the rules or deliberate efforts t9. avoid
compliance. The FHW A has indicated that review of compliance with drug and alcohol
testing requirements will be added to all safety and compliance reviews conducted on motor
carriers' operations. Serious penalties have been imposed for violations of the drug and
alcohol testing regulations.
953/18101618 6/6/96
28
C 1996 Popham Haik Schnobrich dt KauCman. Ltd.
The FHW A has identified a number of penalties which may be applied to drivers who
have either refused to be tested or have tested positive for controlled substances or alcohol.
Any employer or driver who violates the requirements of the FHW A roles is subject to the
penalty provisions of 49 U.S.C. ~ 521(b). 49 C.F.R. ~ 382.507. These penalties may include
disqualification from all safety-sensitive positions until a negative test result is obtained or
disqualification for a set period of time. 49 C.F.R. ~ 382.507. Drivers covered by FHW A
controlled substances testing regulations are also subject to penalties prescribed for
prohibitions contained in several other subparts of the federal motor carrier safety regulations.
49 C.F.R. ~ 382.507. Penalties for these violations range from a six (6) month to a lifetime
disqualification from driving a commercial motor vehicle. 49 U.S.C. ~ 521(b).
The FHW A has also outlined penalties to be imposed upon employers who fail to
follow one or more of the provisions of its intricate drug and alcohol testing regulations,
including those employers who fail to remove employees from safety-sensitive functions
according to the standards outlined by the FHW A rules. Employers that violate the FHW A's
drug and alcohol testing program may be subject to civil and criminal penalties, including
being declared "out-of-service" and fines as high as $10,000 per violation. 49 U.S.C. g
521(b). If an employer engages in a willful violation of the regulations by permitting a driver
to continue driving after testing positive, the employer may be fined up to $10,000 for each
such violation. See 49 C.F.R. gg 385-386. Even a failure to maintain records as required by
the FHW A may subject an employer to a fine of up to $500.00 per count. 49 C.F.R. 99 385-
386.
In addition to these penalties, the FHW A also conducts compliance reviews of motor
carriers each year by conducting on-site visits. Selection for a compliance review is typically
based on three factors: road side inspection infonnation, prior compliance history and
accident history. The Regional Office of the United States FHW A is expected to conduct a
compliance review for hundreds of covered employers over the next year.
XII. A VOIDING CLAIMS UNDER THE AMERICANS WITH DISABILITIES ACT
The Americans With Disabilities Act (" ADA") prohibits employers from taking any
action against a "qualified disabled" individual and requires employers to provide "reasonable
accommodations" for such an employee.
Under the ADA, individuals with a substance abuse problem may qualify for
protection against discrimination. See Flvnn v. Ravtheon Co., 868 F. Supp. 383, 385 (D.
Mass. 1994); Schmidt v. Safewav. Inc., 864 F. Supp. 991, 996 (D. Or. 1994). Thus, "the
ADA, which prohibits discrimination against a qualified individual with a disability, may
affect the personnel actions an employer might wish to take with respect to some in4ividuals
who test positive for alcohol or drugs or otherwise violate the prohibitions of the [DOT's]
drug and alcohol rules. ,. 59 Fed. Reg. 7311 (Feb. 15, 1994).
9S3/181016186/6/96
29
C 1996 Popham Haik Schnobrich &. IUufman. ltd.
Fortunately, the Equal Employment Opportunity Commission ("EEOC") and the DOT
have interpreted the ADA and the DOT rules so as to remove potential conflict between the
ADA and the DOT drug and alcohol testing requirements. The EEOC has stated that the
ADA authorizes employers covered by DOT drug and alcohol testing regulations to require
their employees to comply with the standards established in those regulations. 59 Fed. Reg.
7311 (Feb. 15, 1994). The EEOC has authorized employers to test employees as provided in
the DOT rules, and has allowed employers to require employees to comply with the other
aspects of the DOT rules, such as the prohibition against using alcohol or drugs on the job.
59 Fed. Reg. 7311 (Feb. 15, 1994).
The DOT and EEOC have also specifically stated that an employer may remove
individuals who test positive for controlled substances, or otherwise violate the DOT
regulations, from safety-sensitive duties as required under the DOT rules without violating the
ADA. 59 Fed. Reg. 7312 (Feb. 15, 1994). As the DOT explained, "under the ADA, an
employer is not viewed as 4discriminating' for following the mandates of DOT drug and
alcohol rules." 59 Fed. Reg. 7312 (Feb. 15, 1994).
Furthermore, the DOT has recognized that an employer may take disciplinary action
against employees who violate the employer's conduct and performance standards, regardless
of whether the employee is protected by the ADA. "[T]he ADA does not preclude an
employer from disciplining or dismissing an employee who commits a violation of the
employer's conduct and performance standards, even if the individual is an alcoholic or has
another disability. For example, a violation of a DOT operating administration's alcohol
misuse rules (e.g., a test demonstrating a prohibited alcohol concentration) could be a
violation of the employer's performance and conduct rules, for which the employer's policy
could call for the employee's dismissal. This result would not violate the ADA." 59 Fed.
Reg. 7313 (Feb. 15, 1994).
The EEOC has also harmonized the ADA with the DOT regulations in its definition of
a "qualified individual with a disability." Under the ADA, an employee or job applicant who
is "currently engaging" in the illegal use of drugs is not a "qualified individual with a
disability." 59 Fed. Reg. 7312 (Feb. 15, 1994). The term "currently engaging" is not limited
to the use of drugs on the day of, or within a matter of days or weeks of, the employment
action in question. The EEOC has interpreted "currently engaging" to apply to the illegal use
of drugs that has occurred recently enough to indicate that the individual is actively engaged
in such conduct. 59 Fed. Reg. 7312 (Feb. 15, 1994); 58 Fed. Reg. 35745-46 (Ju!. 26, 1991).
Thus, an individual with a positive drug test is "currently engaging" in the illegal use of drugs
and therefore is not protected by the ADA. Accordingly, "under Title I [of the ADA], an
employer may discharge or deny employment to an individual who has a positive result on a
DOT-mandated drug test." 59 Fed. Reg. 7312 (Feb. 15, 1994).
While the EEOC and the DOT have interpreted these regulations in a fashion which
generally allows employers to follow the DOT testing requirements without violating the
ADA, the City must still be careful to administer its testing program in accordance with the
9S3/181016186/6196
30
C 1996 Popham Haik Sc:hnobrich &t Kaufman. l.ld.
ADA. The United States District Coun for the District of Oregon recently held that an
employer may violate the ADA even if it believes (incorrectly) that it is following DOT
guidelines. The employer in Schmidt v. Safewav. Inc., 864 F. Supp. 991 (D. Or. 1994),
tenninated a driver for being intoxicated on the job after the driver failed a breath-alcohol
test. The driver argued that the ADA required the employer to offer the "reasonable
accommodation" of a leave of absence to undergo treatment for alcoholism.
The court rejected the employer's argument that the termination was based on the
DOT~ s then-applicable regulations~ noting that nothing in the regulations requires an employer
to terminate an employee after a positive alcohol test. Schmidt, 864 F. Supp. at 999. If a
driver who fails a test meets the other requirements of the ADA (i.e., is a qualified individual
with a disability), the court held, the employer must offer reasonable accommodations for that
disability, including a leave of absence for treatment. In light of this and other court
decisions, the City should proceed with caution when disciplining or discharging employees
with suspected or known alcohol or chemical dependency problems.
XIII. COMPLYING WITH THE FAMILY & MEDICAL LEAVE ACT
The Family & Medical Leave Act of 1993 ("FMLA") prohibits an employer from
taking certain actions against an employee who has a "serious health condition" and requires
an employer to grant such an employee unpaid medical leave for treatment of that health
condition. Under the Department of Labor's regulations implementing the FMLA, treatment
for substance abuse may qualify as a "serious health condition" under some circumstances.
See 29 C.F.R. ~ 825.ll4(c). An employee's absence due to the use of controlled substances
or alcohol, without treatment, does not qualify for leave under the FMLA. 58 Fed. Reg.
31799 (Jun. 4, 1993).
If treatment qualifies as a "serious health condition," the employee has certain rights
under the FMLA: he or she may request up to twelve weeks of unpaid leave for such
treatment; the City may not take personnel action against that employee as a result of the
treatment; and the employee has the right to return to his or her position (or a comparable
position) unless returning would impose an "undue hardship" on the City.
In this regard, the FMLA may limit the City's ability to discipline or discharge an
employee who tests positive for drugs or alcohol, if the employee has properly requested
FMLA leave. The DOT has recognized that federal law, including the FMLA, "may constrain
the discretion that employers would otherwise exercise with respect to . . . personnel actions."
59 Fed. Reg. 7314 (Feb. 15, 1994). Once again, the City should proceed with caution when
drivers request leave for treatment of alcohol or chemical dependency problems.
XIV. APPENDIX OF DEFINITIONS
. "Accident" means an occurrence involving a commercial motor vehicle
operating on a public road which results in a fatality; bodily injury to any
9S3/18101618 6/6/96
31
C 1996 Popham Haik Schnobrich &t Kaufman. Lul.
, .
person who, as a result of the injury, immediately receives medical treatment
away from the scene of the accident; or one or more motor vehicles incurring
disabling damage as a result of the accident, requiring the vehicle to be
transported away from the scene by a tow truck or other vehicle. The term
"accident" does not include an occurrence involving only boarding and
alighting from a stationary motor vehicle; an occurrence involving only the
loading or unloading of cargo; or an occurrence in the course of the operation
of a passenger car or a multipurpose passenger vehicle unless the vehicle is
transporting passengers for hire or hazardous materials of a type and quantity
that require the motor vehicle to be marked or placarded in accordance with 49
C.F.R. ~ 177.823, 49 C.F.R. ~ 382.303(a); 49 C.F.R. ~ 382.303(f).
· "Alcohol" means the intoxicating agent in beverage alcohol, ethyl alcohol, or ,
other low molecular weight alcohol including methyl and isopropyl alcohol.
49 C.F.R. ~ 382.107.
. "Alcohol Concentration (or Content)" means the alcohol on a volume of
breath expressed in terms of grams of alcohol per 210 liters of breath as
indicated by an evidential breath test. 49 C.F.R. ~ 382.107.
· "Alcohol Use" means the consumption of any beverage, mixture, or
preparation, including any medication, containing alcohol. 49 C.F.R.
~ 382.107.
· "Beer" means beer, ale, porter, stout, and other similar fermented beverages
(including sake or similar products) of any name or description containing one-
half of one percent or more of alcohol by volume, brewed or produced from
malt, wholly or in part, or from any substitute therefor. 26 D.S.C. ~ 5052(a).
· "Breath Alcohol Technician" or "BAT" means an individual who instructs
and assists individuals in the alcohol testing process and operates and evidential
breath testing device (EBT). 49 C.F.R. ~ 40.3.
· "Collection Site" means a place designated by an employer where drivers
present themselves for the purpose of providing a specimen of their urine to be
analyzed for the presence of drugs. 49 C.F.R. ~ 40.3.
. "Commercial Motor Vehicle" means a motor vehicle or combination of
motor vehicles used in commerce to transpon passengers or propeny if the
motor vehicle (1) has a gross combination weight rating of 26,001 or more
pounds inclusive of a towed unit with a gross vehicle weight rating of more
than 10,000 pounds; or (2) has a gross vehicle weight rating of 26,00 1 or more
pounds; or (3) is designed to transport sixteen (16) or more passengers,
including the Driver; or (4) is of any size and is used in the transportation of
953/181016186/6196
32
C 1996 Popham Haik Schnobrich &t Kaufman, Ltd.
materials found to be hazardous for the purposes of the Hazardous Materials
Transportation Act and which require the motor vehicle to be placarded under
the Hazardous Materials Regulations. 49 C.F.R. ~ 382.107.
. "City" means City of Prior Lake
. "City Premises" means all property, facilities, land, offices, living quarters,
buildings, structures, equipment, vehicles and parking areas, whether owned,
leased, used or under the control of the City. The term should be interpreted in
its broadest sense and may include other work locations, such as the job site of
a customer or delivery destination.
. "Confirmation (or Confirmatory) Test" for alcohol testing means a second
test, following a positive non-evidential (e.g. saliva) screening test or a breath
alcohol screening test with the result of 0.02 or greater, that provides
quantitative data of alcohol concentration. For controlled substances testing,
"Confirmation (or Confirmatory) Test" means a second analytical procedure to
identify the presence of a specific drug or metabolite which is independent of
the screen test and which uses a different technique and chemical principal
from that of the screen test in order to ensure reliability and accuracy.
49 C.F.R. ~ 382.107.
. "Consortium" means an entity, including a group or association of employers
or contractors, that provides alcohol or controlled substances testing as required
by the FHW A regulations or other DOT alcohol or controlled substances
testing rules, and that acts on behalf of employers. 49 C.F.R. ~ 382.107.
. "Controlled Substances" means those substances identified in 49 C.F.R. ~
40.21 (a). Marijuana, amphetamines, opiates (including heroin), phencyclidine
(PCP), cocaine, and any of their metabolites are included within this definition.
49 C.F.R. ~ 382.107; 49 C.F.R. ~ 40.21(a).
. "Distilled Spirits" means the substance known as ethyl alcohol, ethanol, or
spirits of wine in any form (including all dilutions and mixtures thereof from
whatever source or by whatever process produced.) 26 V.S.C. ~ 5002(a)(8).
. "Department of Transportation" or "DOT" means the lTnited States
Department of Transportation.
. "Disabling Damage" means damage which precludes departure of a qlotor
vehicle from the scene of the accident in its usual manner in daylight after
simple repairs, including damage to motor vehicles that could have been
driven, but would have been further damaged if so driven. Disabling damage
does not include damage which can be remedied temporarily at the scene of the
9S3/18101618616196
33
C 1996 Popham Haik Sc:hnobrich dt Kaufman. Ltd.
accident without special tools or parts, tire disablement without other damage
even if no spare tire is available, headlight or tail light damage or damage to
turn signals, horn, or windshield wipers which make them inoperative. 49
C.F.R. ~ 382.107.
. "DHHS" means the Department of Health & Human Services or any designee
of the Secretary, Department of Health & Human Services. 49 C.F.R. ~ 40.3.
. "Driver" means any person who operates a commercial motor vehicle. This
includes, but is not limited to, full-time, regularly employed drivers; casual,
intermittent or occasional drivers; leased drivers and independent owner-
operator contractors who are either directly employed by or under lease to the
City or who operate a commercial motor vehicle at the direction of or with the
consent of the City. 49 C.F.R. ~ 382.107.
. "Drugs" has the same meaning as "controlled substances" as defined in this
policy.
. "Employer" means any person. including the United States, a State, District of
Columbia. or a political subdivision of a State, who owns or leases a
commercial motor vehicle or assigns persons to operate such a vehicle. The
term also includes an employer's agents, officers, and representatives.
49 C.F.R. ~ 382.107.
. "Evidential Breath Testing Device" or "EBT" means a device approved by
the National Highway Traffic Safety Administration ("NHTSA") for the
evidential testing of breath and placed on NHTSA's "Conforming Products List
of Evidential Breath Measurement Devices." 49 C.F.R. ~ 40.3.
. "Federal Highway Administration" or "FHW A" means the Federal
Highway ...l\dministration of the United States Department of Transportation.
. "Gross Combination Weight Rating" means the value specified by the
manufacturer as the loaded weight of a combination (articulated) vehicle. In
the absence of a value specified by the manufacturer, the rating is determined
by adding the gross combination weight rating of the power unit and the total
weight of the towed unit and any load thereon. 49 C.F.R. ~ 390.5.
. "Gross Vehicle Weight Rating" means the value specified by the
manufacturer as the loaded weight of a single vehicle. 49 C.F.R. ~ 3~0.5.
. "Intermittent, Casual, or Occasional Driver" means a driver who in any
period of seven (7) consecutive days is employed or used as a driver by more
than a single motor carrier. 49 C.F.R. ~ 390.5.
9S3/181016186/6I96
34
C 1996 Popham Haik SchDObrich &t Kaufman. Ltd.
. "Licensed Medical Practitioner" means a person who is licensed, certified,
and/or registered, in accordance with applicable Federal, State, local, or foreign
laws or regulations, to prescribe controlled substances and other drugs. 49
C.F.R. ~ 382.107.
· "Medical Review Officer" or "MRO" means a licensed physician (medical
doctor or doctor of osteopathy) responsible for receiving laboratory results
generated by a drug testing program who has knowledge of substance abuse
disorders and has appropriate medical training to interpret and evaluate an
individual's confrrmed positive test result together with his or her medical
history and any other relevant biomedical information. 49 C.F.R. ~ 40.3.
· "Performing (a Safety-Sensitive Function)" means any period in which a
driver is actually performing, ready to perform, or immediately available to
perform any safety-sensitive functions. 49 C.F.R. ~ 382.107.
. "Positive Test Result" means a finding of the presence of alcohol or
controlled substances. or their metabolites, in the sample tested in levels at or
above the threshold detection levels established by applicable law.
· "Reasonable Suspicion" means a belief that a Driver has engaged in conduct
prohibited by the FHW A drug and alcohol testing regulations, except when
related solely to the possession of alcohol, based on specific contemporaneous,
articulable observations made by a supervisor or City official who has received
appropriate training concerning the appearance, behavior, speech or body odors
of the Driver. The determination of reasonable suspicion for alcohol testing
shall be made during, just preceding, or just after the period of the work day
that the Driver is required to be in compliance with this policy. In the case of
controlled substances, the observations may include indications of the chronic
and withdrawal effects of controlled substances.
· "Refusal to Submit" means a Driver (1) fails to provide adequate breath for
alcohol testing without a valid medical explanation after he or she has received
notice of the requirement for breath testing, (2) fails to provide adequate urine
for controlled substances testing without a genuine inability to provide a
specimen (as determined by a medical evaluation), after he or she has received
notice of the requirement for urine testing, or (3) engages in conduct that
clearly obstructs the testing process. Refusal by a Driver to complete and sign
the alcohol testing form, to provide a breath or saliva sample, to provide an
adequate amount of breath, or otherwise cooperate in a way that prevents the
completion of the testing process constitutes a refusal to test. 49 C.F.R.
~ 382.107.
9S3/181016186/6I96
35
e 1996 Popham Haik Schnobrich &. IUufman. Ltd.
. "Regularly Employed Driver" means a driver who in any period of seven (7)
consecutive days is employed or used as a driver by a single motor camer.
49 C.F.R. ~ 390.5.
. "Safety-Sensitive Function" means all time from the time a driver begins to
work or is required to be in readiness to work until the time he/she is relieved
from work and all responsibility for perfonning work. Safety-sensitive
functions include:
(1) All time at an employer or shipper plant. terminal, facility, or other
property, or on any public property t waiting to be dispatched, unless the
driver has been relieved from duty by the employer;
(2) All time inspecting equipment as required by 49 C.F.R. ~~ 392.7 and
392.8 or otherwise inspecting, servicing, or conditioning any
commercial motor vehicle at any time;
(3) All time spent at the driving controls of a commercial motor vehicle in
operation;
(4) All time, other than driving time, in or upon any commercial motor
vehicle except time spent resting in a sleeper berth (a berth conforming
to the requirements of 49 C.F.R. ~ 393.76);
(5) All time loading or unloading a vehicle, supervising, or assisting in the
loading or unloading, attending a vehicle being loaded or unloaded,
remaining in readiness to operate the vehicle, or in giving or receiving
receipts for shipments loaded or unloaded; and
(6) All time repairing, obtaining assistance, or remaining in attendance upon
a disabled vehicle. 49 C.F.R. ~ 382.107.
. "Screening Test (also known as Initial Test)" in alcohol testing, means an
analytical procedure to determine whether a driver may have a prohibited
concentration of alcohol in his or her system. Screening tests may be
conducted by utilizing a non-evidential screening device included by the
National Highway Traffic Administration on its conforming products list (e.g. a
saliva screening device) or an evidential breath testing device ("EBT") operated
by a trained breath alcohol technician ("BAT"). In controlled substance testing,
"Screening Test" means an immunoassay screen to eliminate "negative~ urine
specimens from further consideration. 49 C.F .R. ~ 382.107.
. "Substance Abuse ProCessional" or "SAP" means a licensed physician
(medical doctor or doctor of osteopathy), licensed or certified psychologist,
"-
9S3/181016186/6I96
36
C 1996 Popham Haile SchDobrich & IUufmua. Lad.
licensed or certified social worker, licensed or certified employee assistance
professional, or licensed or certified addiction counselor (certified by the
National Association of Alcoholism and Drug Abuse Counselors Certification
Commission) with knowledge of and clinical experience in the diagnosis and
treatment of alcohol and controlled substances-related disorders. 49 C.F.R. ~
382.107.
. "Wine" means wine of not less than one-half of one percent of alcohol by
volume. 49 C.F.R. ~ 392.5(a)(3).
9S3/181016186/6I96
37
C 1996 Popham Haik SchDobrich &t Kaufman. Ltd.