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This guidance document provides clarity to DOT-regulated employers, employees, and service agents on conducting DOT drug-and-alcohol testing given concerns about the Coronavirus Disease 2019 (COVID-19). We, as a nation, are facing an unprecedented public health emergency that is straining medical resources and altering aspects of American life, including the workplace. The nation’s transportation industries, which are not immune to the impacts and disruptions resulting from the spread of COVID-19 in the United States, are playing a vital role in mitigating the effects of COVID-19.
DOT is committed to maintaining public safety while providing maximum flexibility to allow transportation industries to conduct their operations safely and efficiently during this period of national emergency.
The below guidance on compliance with the DOT and modal drug and alcohol testing programs apply during this period of national emergency.
For DOT-regulated employers:

  • As a DOT-regulated employer, you must comply with applicable DOT training and testing requirements.[2] However, DOT recognizes that compliance may not be possible in certain areas due to the unavailability of program resources, such as collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO) and Substance Abuse Professionals (SAP). You should make a reasonable effort to locate the necessary resources. As a best practice at this time, employers should consider mobile collection services for required testing if the fixed-site collection facilities are not available.[3]
  • If you are unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, state or locally imposed quarantine requirements, or other impediments, you are to continue to comply with existing applicable DOT agency requirements to document why a test was not completed. If training or testing can be conducted later (e.g., supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month), you are to do so in accordance with applicable modal regulations. Links to the modal regulations and their respective web pages can be found at https://www.transportation.gov/odapc/agencies.
  • If employers are unable to conduct DOT drug and alcohol testing due to the unavailability of testing resources, the underlying modal regulations continue to apply. For example, without a “negative” pre-employment drug test result, an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions, or in the case of the Federal Aviation Administration (FAA), you cannot hire the individual (See 14 CFR § 120.109(1) and (2)).
  • Additionally, DOT is aware that some employees have expressed concern about potential public health risks associated with the collection and testing process in the current environment. Employers should review the applicable DOT Agency requirements for testing to determine whether flexibilities allow for collection and testing at a later date.
  • As a reminder, it is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i). However, as the COVID-19 outbreak poses a novel public health risk, DOT asks employers to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites. DOT asks employers to verify with the clinic or collection site that it has taken the necessary precautions to minimize the risk of exposure to COVID-19.
  • Employers should revisit back-up plans to ensure the plans are current and effective for the current outbreak conditions. For example, these plans should include availability of collectors and collection sites and BAT, and alternate/back-up MRO, as these may have changed as a result of the national emergency. Employers should also have regular communications with service agents regarding the service agent’s availability and capability to support your DOT drug and alcohol testing program.

For DOT-regulated employees:

  • If you are experiencing COVID-19-related symptoms, you should contact your medical provider and, if necessary, let your employer know about your availability to perform work.
  • If you have COVID-19-related concerns about testing, you should discuss them with your employer.
  • As a reminder, it is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i).

For service agents:

  • As a collector, BAT, laboratory, MRO, or SAP, you should continue to provide services to DOT-regulated employers if it is possible to do so in accordance with state or local mandates related to COVID-19. Should you have concerns about COVID-19 when testing or interacting with employees, please follow your company policy, directions from state and local officials, and guidance from the Centers for Disease Control and Prevention (CDC).

You are encouraged to continue to monitor guidance from public health officials and to refer to official government channels for additional information related to COVID-19. The CDC provides helpful guidance and insight from medical professionals who closely monitor the virus. The CDC latest updates (https://www.cdc.gov/coronavirus/2019-ncov/index.html). Also for reference, the Occupational Safety and Health Administration has released guidance on preparing workplaces for COVID-19 (https://www.osha.gov/Publications/OSHA3990.pdf).
 

[1] This guidance document does not have the force and effect of law and is not meant to bind the public in anyway. This guidance is intended only to provide clarity regarding existing requirements under the law.
[2]How to conduct testing is found in 49 CFR Part 40 (see https://www.transportation.gov/odapc/part40), while who gets tested and when (along with drug and alcohol-related training requirements) can be found in the applicable DOT modal regulations (see https://www.transportation.gov/odapc/agencies).
[3]As a reminder, point-of-collection testing or instant tests are not authorized in DOT drug testing (see https://www.transportation.gov/odapc/part40/40-210).

As mandated by its drug and alcohol regulation, the Federal Transit Administration (FTA) will increase the minimum rate of random drug testing from 25 percent to 50 percent of covered employees for employers subject to FTA’s drug and alcohol regulation, effective January 1, 2019. This change is due to an increase in the industry’s ‘‘positive rate’’ as reflected in random drug test data for calendar year 2017.
The required minimum rate for random alcohol testing is unaffected by this change and will remain at 10 percent for 2019.
Click here to read FTA’s letter about this increase.

The Federal Railroad Administration (FRA) has determined that the minimal annual random drug and alcohol testing rate will remain the same for 2017, as positive test rates have remained below the set threshold.
The testing rates will continue to be 25 percent of covered service employees for drug testing and 10 percent of covered service employees for alcohol testing.
As per a recent final rule, maintenance-of-way (MOW) employees will become subject to the FRA random drug and alcohol testing beginning June 12, 2017. Since the FRA does not yet have data on MOW employees, testing rates for MOW will be set at 50 percent for random drug testing and 25 percent for random alcohol testing for the period starting June 12, 2017, through Dec. 31, 2017.
Click here to read the official notice from the FRA as published in the Federal Register.

Separate rules increase protections, add Maintenance of Way workers to drug and alcohol testing policy

FRA_logo_wordsWASHINGTON – The U.S. Department of Transportation’s (DOT) Federal Railroad Administration (FRA) announced it has issued two final rules to better protect railroad employees working on or near railroad tracks. One rule amends the existing Roadway Worker Protection regulation. The second rule, Control of Alcohol and Drug Use, revises FRA’s existing alcohol and drug testing regulations and expands the requirements to now cover maintenance of way (MOW) employees. The second rule fulfills a requirement of the Rail Safety Improvement Act of 2008.
“Clear communication, multiple layers of safety and a rigorous alcohol and drug testing policy are critical to keep workers along and near tracks—and ultimately passengers and train crews—out of harm’s way,” said U.S. Transportation Secretary Anthony Foxx. “These are common sense rules that will help make our railroads safer.”
The Roadway Worker Protection final rule amendments will: (1) resolve different interpretations that have emerged since the rule went into effect nearly 20 years ago; (2) implement FRA’s Railroad Safety Advisory Committee’s (RSAC) consensus recommendations; (3) codify certain FRA Technical Bulletins; (4) codify a FAST Act mandate by adopting new requirements governing redundant signal protections; (5) address the safe movement of roadway maintenance machinery over signalized non-controlled track (not under a dispatcher’s control); and (6) amend certain qualification requirements for roadway workers.
The latest amendments require that job briefings include information for roadway worker groups on the accessibility of the roadway worker in charge; set standards for how “occupancy behind” train authorities (when the authority for a work crew does not begin until the train has passed the area) can be used; and require annual training for any individual serving as a roadway worker in charge.
In addition to the existing requirement to have a primary means of protection by establishing working limits and a requirement that all affected roadway workers be notified before working limits are released, FRA’s rule changes will now require another level of redundant signal protection.
“These new rules add another layer of protection for workers who work along and near railroad tracks and will help us reduce preventable worker injuries and fatalities,” said FRA Administrator Sarah E. Feinberg.
In response to both a congressional mandate and a National Transportation Safety Board (NTSB) recommendation, FRA is broadening the scope of its existing drug and alcohol testing regulation to cover MOW employees. Currently, a MOW employee is only drug and alcohol tested when he or she has died as a result of an accident or incident. MOW employees will now be fully subject to FRA’s drug and alcohol testing that includes random testing, post-accident testing, reasonable suspicion testing, reasonable cause testing, pre-employment testing, return-to-duty testing and follow-up testing.
“Whether you are an engineer, conductor or someone working alongside the tracks, safety requires alertness. Any reduction in awareness caused by drugs or alcohol use can often be the difference between life and death,” Feinberg added.
The Control of Alcohol and Drug Use rule, which also clarifies interpretations since the testing rule went into effect in 1986, includes other substantive changes. In response to another NTSB recommendation, the rule changes will now allow drug testing of railroad and MOW employees that are believed to have caused an incident at a railroad crossing.
The final Roadway Worker Protection rule is effective April 1, 2017. The Control of Alcohol and Drug Use goes into effect one year after publication.
Read the rules:

Acting Federal Transit Administrator Therese McMillan has determined that the random drug-testing rate will remain at 25 percent for 2015 and the random alcohol-testing rate for 2015 will remain at 10 percent for transit employees performing safety-sensitive functions, according to the Federal Register.
The determination was made due to a “positive rate” lower than one percent for random drug test data for the past two years. The random alcohol violation rate was lower than 0.5 percent for the last two years.
The random drug rates for the two preceding years are 0.74 percent for 2013 and 0.87 percent for 2014. The random alcohol rates for the two preceding years are 0.12 percent for 2013 and 0.14 percent for 2014.
On Jan. 1, 1995, FTA required large transit employers to begin drug and alcohol testing employees performing safety-sensitive functions and submit annual reports by March 15 of each year beginning in 1996. The annual report includes the number of employees who had a verified positive for the use of prohibited drugs, and the number of employees who tested positive for the misuse of alcohol during the reported year.
The original rules required employers to conduct random drug tests at a rate equivalent to at least 50 percent of their total number of safety-sensitive employees for prohibited drug use and at least 25 percent for the misuse of alcohol.
However, the rules provided the drug random testing rate may be lowered to 25 percent if the ‘‘positive rate’’ for the entire transit industry is less than one percent for two preceding consecutive years. The alcohol provisions provided the random rate may be lowered to 10 percent if the ‘‘violation rate’’ for the entire transit industry was less than 0.5 percent for two consecutive years.
Click here to review the Federal Register notice.
The U.S. Department of Transportation provides answers to employees’ Frequently Asked Questions at http://www.dot.gov/odapc/employee.
 

DOT_Logo_150pxActing Federal Transit Administrator Therese McMillan has determined that the random drug-testing rate will remain at 25 percent for 2015 and the random alcohol-testing rate for 2015 will remain at 10 percent for transit employees performing safety-sensitive functions, according to the Federal Register.

The determination was made due to a “positive rate” lower than one percent for random drug test data for the past two years. The random alcohol violation rate was lower than 0.5 percent for the last two years.

The random drug rates for the two preceding years are 0.74 percent for 2013 and 0.87 percent for 2014. The random alcohol rates for the two preceding years are 0.12 percent for 2013 and 0.14 percent for 2014.

On Jan. 1, 1995, FTA required large transit employers to begin drug and alcohol testing employees performing safety-sensitive functions and submit annual reports by March 15 of each year beginning in 1996. The annual report includes the number of employees who had a verified positive for the use of prohibited drugs, and the number of employees who tested positive for the misuse of alcohol during the reported year.

The original rules required employers to conduct random drug tests at a rate equivalent to at least 50 percent of their total number of safety-sensitive employees for prohibited drug use and at least 25 percent for the misuse of alcohol.

However, the rules provided the drug random testing rate may be lowered to 25 percent if the ‘‘positive rate’’ for the entire transit industry is less than one percent for two preceding consecutive years. The alcohol provisions provided the random rate may be lowered to 10 percent if the ‘‘violation rate’’ for the entire transit industry was less than 0.5 percent for two consecutive years.

Click here to review the Federal Register notice.

The U.S. Department of Transportation provides answers to employees’ Frequently Asked Questions at http://www.dot.gov/odapc/employee.

FRA_logo_wordsIn response to Congress’ mandate in the Rail Safety Improvement Act of 2008 (RSIA), the Federal Railroad Administration is proposing to expand the scope of its alcohol and drug regulations to cover employees who perform maintenance-of-way (MOW) activities.

In addition, FRA is proposing certain substantive amendments that either respond to National Transportation Safety Board (NTSB) recommendations or update and clarify the alcohol and drug regulations based on a retrospective regulatory review (RRR) analysis.

“This NPRM addresses the application of drug and alcohol testing for maintenance-of-way employees that are not now covered by those requirements. These maintenance-of-way employees will not be covered by hours of service, but will soon be covered by the same drug and alcohol testing protocols that hours of service employees are under,” SMART Transportation Division National Legislative Director James Stem said.

“These employees will be also tested at a higher rate for the first two years under this NPRM than the other covered service employees.”

Comments can be posted to the docket [Docket No. FRA–2009–0039] at www.regulations.gov and should be offered on or before Sept. 26, 2014.

To read the complete proposed rule, click here.

WASHINGTON – The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) today announced a proposed rule to establish a drug and alcohol clearinghouse for all national commercial driver’s license (CDL) holders. The clearinghouse would help improve roadway safety by making it easier to determine whether a truck or bus driver is prohibited from operating a commercial motor vehicle for failing to comply with federal drug and alcohol regulations, including mandatory testing.

“Safety is our highest priority, and we will continue to embrace new tools and opportunities that protect the travelers on our nation’s roads,” said U.S. Transportation Secretary Anthony Foxx. “Today’s proposal will help ensure dangerous drivers stay off the road, while encouraging the employment of the many safe drivers who follow our drug and alcohol requirements.”

Current federal regulations require employers to conduct mandatory pre-employment screening of a CDL driver’s qualifications based upon his or her driving record. However, there has not been a single federal repository recording positive drug and alcohol tests by CDL holders that employers would be able to search to ensure that the driver is able to perform safety-sensitive duties.

The proposed rule announced today would create such a repository and require employers to conduct pre-employment searches for all new CDL drivers and annual searches on current drivers.

“We are leveraging technology to create a one-stop verification point to help companies hire drug and alcohol-free drivers,” said FMCSA Administrator Anne S. Ferro. “This proposal moves us further down the road toward improving safety for truck and bus companies, commercial drivers and the motoring public everywhere.”

Under the proposed rule announced today, FMCSA-regulated truck and bus companies, Medical Review Officers, Substance Abuse Professionals, and private, third party USDOT drug and alcohol testing laboratories would be required to record information about a driver who:

  • Fails a drug and/or alcohol test;
  • Refuses to submit to a drug and/or alcohol test; and
  • Successfully completes a substance abuse program and is legally qualified to return to duty.

Private, third-party USDOT drug and alcohol testing laboratories also would be required to report summary information annually. This information would be used to help identify companies that do not have a testing program.

To ensure the privacy of drivers involved, each CDL holder would need to provide his or her consent, before an employer could access the clearinghouse.

Drivers who refuse to provide this information could still be employed by the truck or bus company; however, they could not occupy safety-sensitive positions, such as operating a commercial motor vehicle.

It is a violation of federal regulations to drive a truck or bus under the influence of controlled substances or alcohol. Federal safety regulations require that truck and bus companies that employ CDL drivers conduct random drug and alcohol testing programs. Carriers must randomly test 10 percent of their CDL drivers for alcohol and 50 percent of their CDL drivers for drugs each year.

For each of the past three years, federal and state safety inspectors have conducted approximately 3.5 million random roadside inspections of commercial vehicles and of their drivers.

In 2013, on 2,095 occasions, or in 0.23 percent of the unannounced inspections, a CDL holder was immediately placed out-of-service and cited for violating federal regulations governing alcohol consumption. In 2012, FMCSA records show that there were 2,494 violations of this regulation.

In 2013, on 1,240 occasions, or in 0.13 percent of the unannounced inspections, a CDL holder was placed immediately out-of-service and cited for violating federal regulations governing controlled substances. In 2012, FMCSA records show that there were 1,139 violations of this regulation.

In addition to random testing, truck and bus companies are further required to perform drug and alcohol testing on new hires, drivers involved in significant crashes, and whenever a supervisor suspects a driver of using drugs or alcohol while at work.

The proposed rule announced today was directed by Congress in the most recent transportation bill, the Moving Ahead for Progress in the 21st Century Act.

For a copy of the Federal Register announcement, click here.

 

By Vic Baffoni

Bus Vice President

UTU-represented bus operators and mechanics can take great pride in their accomplishments the first half of 2008, but there remain many hurdles to overcome.

The final DOT rule on drug and alcohol testing for holders of a commercial driver’s license (CDL) goes into effect Aug. 25. DOT ordered that all specimens be tested for validity, which means adulterants and urine substitutes. Also, observed collections will now be required, rather than be an option, for all return-to-duty and follow-up testing.

Holders of CDLs and commercial learner permits (CLPs) face many tougher rules, and the UTU will be there every step of the way to protect the rights of its bus members.

We still have numerous contracts to negotiate before the end of the year, and there also are many pending arbitration cases. This office has an open-door policy: Any UTU officer is encouraged to call my office for assistance anytime.

Thanks go out to Alternate Vice President-East Rich Deiser for his excellent handling of the TNM&O merger and acquisition by Greyhound. Brother Deiser negotiated rights for our former members, which included dovetailed seniority, benefit protections and additional work assignments, ensuring important protections as part of their movement into the Amalgamated Transit Union.

It is good news to see reports of sharp increases in bus ridership across America as soaring gasoline prices force a shift from automobiles to public transportation. The bad news is that transit agencies are saying they cannot dramatically increase bus service anytime soon because of rising fuel costs. The UTU is urging all levels of government to increase spending on public transportation.