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HomeMy WebLinkAbout1995-12-03 �F t BEFORE THE CITY COUNCIL OF THE CITY OF BATESVILLE ORDINANCE NO . 95-12-3 AN ORDINANCE TO INCORPORATE THE FEDERAL DEPARTMENT OF TRANSPORTATION ' S 1994 FINAL RULES FOR CONTROLLED SUBSTANCES AND ALCOHOL TESTING, UPDATING THE OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT OF 1991 INTO EXISTING PERSONNEL POLICIES AND TO AMEND ANY PERSONNEL POLICIES PROVIDING FOR CONDITIONS OF EMPLOYMENT, DECLARING AN EMERGENCY AND FOR OTHER PURPOSES . WHEREAS, PURSUANT TO CONGRESSIONAL MANDATE , THE U . S . DEPARTMENT OF TRANSPORTATION HAS HANDED DOWN ITS 1994 FINAL RULES FOR CONTROLLED SUBSTANCES AND ALCOHOL TESTING , (HEREINAFTER CALLED THE RULES) , WHICH UPDATE THE OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT OF 1991 ; AND WHEREAS, ALL EMPLOYEES OCCUPYING POSITIONS WHICH REQUIRE A COMMERCIAL DRIVER ' S LICENSE IN ORDER TO CARRY OUT THE DUTIES OF THEIR POSITION WILL NOW BE SUBJECT TO THE RULES, INCLUDING THOSE FOR DRUG AND ALCOHOL TESTING, EFFECTIVE JANUARY 1 , 1996 ; AND WHEREAS, THE BATESVILLE CITY COUNCIL IS COMMITTED TO MAINTAINING A SAFE WORKPLACE FOR ITS EMPLOYEES , AND USERS OF • THE PUBLIC HIGHWAYS THAT IS FREE FROM ILLEGAL DRUG USE AND THE MISUSE OF ALCOHOL ; AND WHEREAS, THE CITY OF BATESVILLE INTENDS TO COMPLY WITH THE REQUIREMENTS FOR DRUG AND ALCOHOL TESTING AS MANDATED BY THE U . S . DEPARTMENT OF TRANSPORTATION AND OTHER FEDERAL AND STATE LAWS AND REGULATIONS . NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF BATESVILLE, ARKANSAS THE FOLLOWING : SECTION 1 : THAT ALL PERSONNEL POLICIES OF THE CITY OF i BATESVILLE ARE HEREBY REVISED AND AMENDED TO INCORPORATE THE 1994 DOT FINAL RULES . A COPY OF SAID RULES IS ATTACHED HERETO AND BY REFERENCE IS INCORPORATED HEREIN IN ITS I ENTIRETY AS IF RESTATED WORD FOR WORD . SECTION 2 : THAT THIS ORDINANCE SPECIFICALLY AMENDS ANY PERSONNEL POLICY PROVIDING FOR CONDITIONS OF EMPLOYMENT FOR EMPLOYEES WHOSE DUTIES REQUIRE THEM TO MAINTAIN A COMMERCIAL DRIVER ' S LICENSE IN ORDER TO LAWFULLY CARRY OUT THEIR DUTIES . SECTION 3 : ANY ORDINANCE , RESOLUTION, RULE , REGULATION OR PART OF ANY ORDINANCE , RESOLUTION , RULE , REGULATION NOW • IN EFFECT WHICH CONFLICTS WITH THE RULES IS HEREBY REPEALED . SECTION 4 : THE SAFETY DIRECTOR OF THE CITY OF BATESVILLE IS HEREBY DIRECTED TO ESTABLISH PROCEDURES TO ENSURE COMPLIANCE WITH THE RULES, INCLUDING THE ASSIGNMENT OF A DESIGNATED REPRESENTATIVE RESPONSIBLE FOR THE EXECUTION I OF THE PROCEDURES . SECTION 5 : ANY LABORATORY, MEDICAL REVIEW OFFICER, SUBSTANCE ABUSE PROFESSIONAL OR ANY OTHER PROFESSIONAL WHO - RECEIVES PAYMENT FOR TESTING, EVALUATING, RECORD-KEEPING, OR OTHER SERVICES MANDATED BY THE RULES MUST BE QUALIFIED ACCORDING TO THE RULES AND MUST PERFORM SUCH SERVICES IN CONFORMANCE WITH 49 CFR PART 40 AND PART 382 , SECTION 6 : DRUG AND ALCOHOL TESTING WILL BE ® ADMINISTERED TO THOSE EMPLOYEES MANDATED BY THE RULES, IN THE CIRCUMSTANCES AND IN THE MANNER MANDATED BY THE RULES . SECTION 7 : THE PENALTY FOR REFUSAL TO TAKE A MANDATED TEST FOR DRUGS OR ALCOHOL IS IMMEDIATE DISCHARGE . i I I I y SECTION 8 : THE PENALTY FOR A POSITIVE DRUG TEST RESULT, ONCE THE TIME LIMIT FOR REQUESTING A SECOND TEST OF A SPLIT SAMPLE HAS EXPIRED, OR UPON RECEIPT OF A POSITIVE DRUG TEST RESULT FROM THE SECOND TEST, IS IMMEDIATE DISCHARGE . SECTION 9 : THE PENALTY FOR A POSITIVE ALCOHOL TEST RESULT IS IMMEDIATE DISCHARGE . SECTION 10 : EMPLOYEES WHOSE INITIAL DRUG TEST RESULTS ARE POSITIVE AND WHO REQUEST A TEST OF THE SECOND PORTION OF THE SPLIT SAMPLE WILL BE SUSPENDED WITHOUT PAY UNTIL SUCH TIME AS THE SAFETY DIRECTOR RECEIVES THE RESULTS OF THE SECOND (SPLIT SAMPLE ) TEST . SUCH SECOND TEST WILL BE AT THE EMPLOYEE ' S EXPENSE . SECTION 11 : A NEGATIVE RESULT FROM THE SECOND (SPLIT SAMPLE ) DRUG TEST WILL RENDER THE FIRST TEST INVALID AND THE EMPLOYEE WILL BE REINSTATED WITH BACK PAY AND REIMBURSEMENT FOR THE COSTS OF THE SECOND TEST . SECTION 12 : AN EMPLOYEE SUSPECTED OF UNLAWFUL USE OF DRUGS OR ABUSE OF ALCOHOL WHILE ON DUTY AS ESTABLISHED BY THE RULES, OR WHO IS INVOLVED IN AN ACCIDENT AS DEFINED IN 49 CFR 390 . 4 (AND RECEIVES A CITATION FOR A MOVING TRAFFIC VIOLATION IN THIS SECTION) BY THE RULES, SHALL BE SUSPENDED IMMEDIATELY WITH PAY UNTIL THE RESULTS OF THE DRUG OR ALCOHOL TEST ARE RECEIVED BY THE SAFETY DIRECTOR . SECTION 13 : IF ANY PROVISION OF THIS ORDINANCE IS HELD INVALID BY A COURT OF LAW OR SUBSEQUENT LEGISLATIVE ACTION , SUCH HOLDING SHALL IN NO WAY AFFECT THE VALIDITY OF THE REMAINING PROVISIONS OR SECTIONS OF THIS ORDINANCE , WHICH SHALL REMAIN IN FULL FORCE AN EFFECT . EMERGENCY CLAUSE : THE NEED TO ADOPT THE DEPARTMENT OF TRANSPORTATION ' S 1994 FINAL RULES ON DRUG AND ALCOHOL TESTING EFFECTIVE JANUARY 1 , 1996 IS NECESSARY FOR THE EFFECTIVE , EFFICIENT, AND SAFE OPERATION OF THE CITY OF BATESVILLE AND TO PROTECT THE HEALTH AND WELFARE OF ITS CITIZENS WHO TRAVEL THE STREETS AND HIGHWAYS , AND ITS EMPLOYEES IN THE WORKPLACE . THEREFORE AN EMERGENCY IS HEREBY DECLARED TO EXIST AND THIS ORDINANCE SHALL BE IN FULL FORCE AND EFFECT FROM AND AFTER JANUARY 1 , 1996 . IT IS SO ORDAINED THIS +� DAY OF DECEMBER , 1995 . ONORA LE JOE BIARD, MAYOR ATTEST : yk)-\i)-t) �NJ lCrl DENISE M . JOHNST N , IBATESVILLE CITY CLERK i . fl §382.101-§382.107 PART 382-CONThOLLED SUBPART F-ALCOHOL MISUSE AND SUBSTANCES AND ALCOHOL USE AND CONTROLLED SUBSTANCES USE TESTING INFORMATION,TRAINING,AND REFERRAL 382.601 Motor carrier obligation to promulgate a SUBPART A-GENERAL policy on the misuse of alcohol and use of controlled substances. Sec. 382.603 Training for supervisors. 382.101 Purpose. 382.605 Referral,evaluation, and treatment. 382.103 Applicability. 382.105 Testing procedures. Authority:49 U.S.C.31306;49 U.S.C.app.31201 382.107 Definitions. et seq.; and 31502; 49 CFR 1.48. g 382.109 Preemption of State and local laws. i 382.111 Other requirements imposed by employ- SUBPART A-GENERAL ers. 382.113 Requirement for notice. §382.101 Purpose. 382.115 Starting date for testing programs. The purpose of this part is to establish programs SUBPART B-PROHIBITIONS designed to help prevent accidents and injuries re- sulting from the misuse of alcohol or use of controlled y substances by drivers of commercial motor vehicles. 382.201 Alcohol concentration. (Approved by the Office of Management and Bud- 382.204 Alcohol possession. get under control number 2125-0543) 382.205 On-duty use. §382.103 Applicability. 382.207 Pre-duty use. (a)This part applies to every person who operates 382.209 Use following an accident. a commercial motor vehicle in interstate or intrastate 382.211 Refusal to submit to a required alcohol or commerce, and is subject to the commercial driver's controlled substances test. license requirements of part 383 of this subchapter. 382.213 Controlled substances use. (b)An employer who employs himself/herself as a 382.215 Controlled substances testing. driver must comply with both the requirements in f this part that apply to employers and the require- SUBPART C-TESTS REQUIRED ments in this part that apply to drivers.An employer who employs only himself/herself as a driver shall 382.301 Pre-employment testing. implement an alcohol and controlled substances test- 382.303 Post-accident testing. ing program that includes more persons than himself/ 382.305 Random testing. herself as covered employees in the random testing 382.307 Reasonable suspicion testing. pool. 382.309 Return-to-duty testing. (c)The part shall not apply to employers and their 382.311 Follow-up testing. drivers: (1) Required to comply with the alcohol and/or SUBPART D-HANDLING OF TEST controlled substances testing requirements of parts RESULTS,RECORD RETENTION,AND 653 and 654 of this title;or CONFIDENTIALITY (2)Granted a full waiver from the requirements of the commercial driver's license program;or 382.401 Retention of records. (3) Granted an optional State waiver from the 382.403 Reporting of results in a management in- requirements of part 383 of this subchapter;or formation system. (4)Of foreign domiciled operations,with respect to 382.405 Access to facilities and records. any driver whose place of reporting for duty (home 382.407 Medical review officer notifications to the terminal) for commercial motor vehicle transporta- employer. tion services is located outside the territory of the 382.409 Medical review officer record retention for United States. controlled substances. §382.105 Testing procedures. 382.411 Employer notifications. Each employer shall ensure that all alcohol or 382.413 Release of alcohol and controlled substances controlled substances testing conducted under this test information by previous employers. part complies with the procedures set forth in part 40 of this title. The provisions of part 40 of this title that SUBPART E-CONSEQUENCES FOR address alcohol or controlled substances testing are DRIVERS ENGAGING IN SUBSTANCE USE- made applicable to employers by this part. RELATED CONDUCT §382.107 Definitions. Words or phrases used in this part are defined in 382.501 Removal from safety-sensitive function. §§386.2 and 390.5 of this subchapter, and §40.3 or ' 382.503 Required evaluation and testing. §40.73 of this title, except as provided herein- 382.505 Other alcohol-related conduct. Alcohol means the intoxicating agent in beverage 382.507 Penalties. alcohol,ethyl alcohol,or other low molecular weight alcohols including methyl and isopropyl alcohol. Alcohol concentration(or content)means the alco- hol in a volume of breath expressed in terms of grams r of alcohol per 210 liters of breath as indicated by an evidential breath test under this part. 9 f §382.107-§382.109 Alcohol use means the consumption of any bever- a vehicle. The term employer includes an employer's age, mixture, or preparation, including any medica- agents, officers and representatives. tion,containing alcohol. Performing (a safety-sensitive function) means a Commerce means (1) Any trade, traffic or trans- driver is considered to be performing a safety-sensi- portation within the jurisdiction of the United States tive function during any period in which he or she is between a place in a State and a place outside of such actually performing, ready to perform, or immedi- State,including a place outside of the United States ately available to perform any safety-sensitive func- and(2)trade,traffic,and transportation in the United tions. States which affects any trade,traffic,and transpor- Positive rate means the number of positive results tation described in paragraph(1)of this definition. for random controlled substances tests conducted Commercial motor vehicle means a motor vehicle under this part plus the number of refusals of random or combination of motor vehicles used in commerce to controlled substances tests required by this part, transport passengers or property if the motor ve- divided by the total of random controlled substances hicle— tests conducted under this part plus the number of j (1)Has a gross combination weight rating of 26,001 refusals of random tests required by this part. or more pounds inclusive of a towed unit with a gross Refuse to submit (to an alcohol or controlled sub- vehicle weight rating of more than 10,000 pounds;or stances test)means that a driver: (2)Has a gross vehicle weight rating of 26,001 or (1) Fails to provide adequate breath for alcohol more pounds;or testing as required by Part 40 of this title,without a (3)Is designed to transport 16 or more passengers, valid medical explanation, after he or she has re- including the driver;or ceived notice of the requirement for breath testing in (4)Is of any size and is used in the transportation accordance with the provisions of this part. of materials found to be hazardous for the purposes of (2)Fails to provide an adequate urine sample for the Hazardous Materials Transportation Act and controlled substances testing as required by Part 40 which require the motor vehicle to be placarded under of this title,without a genuine inability to provide a the Hazardous Materials Regulations (49 CFR part specimen (as determined by a medical evaluation), 172,subpart F). after he or she has received notice of the requirement Confirmation test For alcohol testing means a for urine testing in accordance with the provisions of second test,following a screening test with a result of this part, or 0.02 or greater, that provides quantitative data of (3) Engages in conduct that clearly obstructs the alcohol concentration.For controlled substances test- testing process. ing means a second analytical procedure to identify Safety-sensitive function means any of those on- the presence of a specific drug or metabolite which is duty functions set forth in §395.2 On-Duty time, independent of the screen test and which uses a paragraphs(1)through(6)of this chapter. different technique and chemical principle from that Screening test(also known as initial test).In alco- of the screen test in order to ensure reliability and hol testing,it means an analytical procedure to deter- accuracy. (Gas chromatography/mass spectrometry mine whether a driver may have a prohibited concen- (GC/MS)is the only authorized confirmation method tration of alcohol in his or her system. In controlled for cocaine,marijuana, opiates, amphetamines, and substances testing,it means an immunoassay screen phencyclidine.) to eliminate"negative"urine specimens from further Consortium means an entity,including a group or consideration. association of employers or contractors,that provides Substance abuse professional means a licensed alcohol or controlled substances testing as required physician(Medical Doctor or Doctor of Osteopathy), by this part,or other DOT alcohol or controlled sub- or a licensed or certified psychologist, social worker, stances testing rules, and that acts on behalf of the employee assistance professional or addiction coun- employers. selor(certified by the National Association of Alcohol- DOT Agency means an agency (or"operating ad- ism and Drug Abuse Counselors Certification Com- ministration") of the United States Department of mission)with knowledge of and clinical experience in Transportation administering regulations requiring the diagnosis and treatment of alcohol and controlled alcohol and/or drug testing(14 CFR parts 61,63,65, substances-related disorders. 121, and 135; 49 CFR parts 199, 219, 382, 653 and Violation rate means the number of drivers (as 654),in accordance with part 40 of this title. reported under §382.305 of this part) found during Driver means any person who operates a commer- random tests given under this part to have an alcohol cial motor vehicle. This includes,but is not limited to: concentration of 0.04 or greater, plus the number of full time, regularly employed drivers; casual, inter- drivers who refuse a random test required by this mittent or occasional drivers;leased drivers and inde- part,divided by the total reported number of drivers pendent, owner-operator contractors who are either in the industry given random alcohol tests under this directly employed by or under lease to an employer or part plus the total reported number of drivers in the who operate a commercial motor vehicle at the direc- industry who refuse a random test required by this tion of or with the consent of an employer. For the part. purposes of pre-employment/pre-duty testing only, §382.109 Preemption of State and local laws. the term driver includes a person applying to an (a) Except as provided in paragraph (b) of this employer to drive a commercial motor vehicle. section, this part preempts any State or local law, Employer means any person(including the United rule,regulation, or order to the extent that: States, a State, District of Columbia or a political (1)Compliance with both the State or local require- subdivision of a State)who owns or leases a commer- ment and this part is not possible;or cial motor vehicle or assigns persons to operate such (2)Compliance with the State or local requirement 10 -- -- - §382.109-§382.301 is an obstacle to the accomplishment and execution of edge that a driver is using alcohol while performing any requirement in this part. safety-sensitive functions shall permit the driver to (b) This part shall not be construed to preempt perform or continue to perform safety-sensitive func- provisions of State criminal law that impose sanc- tions. tions for reckless conduct leading to actual loss of life, §382.207 Pre-duty use. injury,or damage to property,whether the provisions No driver shall perform safety-sensitive functions apply specifically to transportation employees, em- within four hours after using alcohol. No employer ployers, or the general public. having actual knowledge that such a driver has used §382.111 Other requirements imposed by em- alcohol within four hours shall permit a driver to ployers. perform or continue to perform safety-sensitive func- Except as expressly provided in this part,nothing tions. in this part shall be construed to affect the authority §382.209 Use following an accident. of employers,or the rights of drivers,with respect to No driver required to take a post-accident alcohol the use or possession of alcohol, or the use of con- test under§382.303 of this part shall use alcohol for trolled substances, including authority and rights eight hours following the accident, or until he/she with respect to testing and rehabilitation. undergoes a post-accident alcohol test, whichever §382.113 Requirement for notice. occurs first. Before performing an alcohol or controlled sub- §382.211 Refusal to submit to a required alco- 3 stances test under this part, each employer shall hol or controlled substances test. notify a driver that the alcohol or controlled sub- No driver shall refuse to submit to a post-accident stances test is required by this part. No employer alcohol or controlled substances test required under i shall falsely represent that a test is administered §382.303, a random alcohol or controlled substances under this part. test required under§382.305,a reasonable suspicion x §382.115 Starting date for testing program& alcohol or controlled substances test required under (a)Large employers. (1)Except as otherwise pro- §382.307, or a follow-up alcohol or controlled sub- vided in this paragraph, each employer with fifty or stances test required under§382.311. No employer more drivers on March 17,1994,shall implement the shall permit a driver who refuses to submit to such requirements of this part beginning on January 1, tests to perform or continue to perform safety-sensi- 1995. tive functions. (2)Large employers may begin implementing the §382.213 Controlled substances use. requirements of§382.301 of this part with respect to (a) No driver shall report for duty or remain on alcohol testing on January 1, 1995, but are not re- duty requiring the performance of safety-sensitive quired to do so until May 1, 1995. functions when the driver uses any controlled sub- (b) Small employers. Each employer with fewer stance, except when the use is pursuant to the in- than fifty drivers on March 17,1994,shall implement structions of a physician who has advised the driver the requirements of this part beginning on January 1, that the substance does not adversely affect the driver's 1996. ability to safely operate a commercial motor vehicle. (c)All employers shall have alcohol and controlled (b) No employer having actual knowledge that a substances programs that conform to this part by the driver has used a controlled substance shall permit date in paragraph(a)or(b)of this section,whichever the driver to perform or continue to perform a safety- is applicable, or by the date an employer begins sensitive function. commercial motor vehicle operations, whichever is (c)An employer may require a driver to inform the later. employer of any therapeutic drug use. §382.215 Controlled substances testing. i SUBPART B—PROHIBITIONS No driver shall report for duty,remain on duty or perform a safety-sensitive function,if the driver tests §382.201 Alcohol concentration. positive for controlled substances. No employer hav- No driver shall report for duty or remain on duty ing actual knowledge that a driver has tested positive requiring the performance of safety-sensitive func- for controlled substances shall permit the driver to tions while having an alcohol concentration of 0.04 or perform or continue to perform safety-sensitive func- greater. No employer having actual knowledge that tions. a driver has an alcohol concentration of 0.04 or greater shall permit the driver to perform or continue to SUBPART C—TESTS REQUIRED perform safety-sensitive functions. §382.204 Alcohol possession. §382.301 Pre-employment testing. No driver shall be on duty or operate a commercial (a)Prior to the first time a driver performs safety- motor vehicle while the driver possesses alcohol, sensitive functions for an employer, the driver shall unless the alcohol is manifested and transported as undergo testing for alcohol and controlled substances. part of a shipment. No employer having actual No employer shall allow a driver to perform safety- knowledge that a driver possesses unmanifested alco- sensitive functions unless the driver has been admin- hol may permit the driver to drive or continue to drive istered an alcohol test with a result indicating an a commercial motor vehicle. alcohol concentration less than 0.04,and has received §382.205 On-duty use. a controlled substances test result from the medical No driver shall use alcohol while performing safety- review officer indicating a verified negative test re- sensitive functions.No employer having actual knowl- sult. If a pre-employment alcohol test result under this section indicates an alcohol content of 0.02 or 11 3 §382.301-§382.303 greater but less than 0.04,the provisions of§382.505 (1)Who was performing safety sensitive functions shall apply. with respect to the vehicle,if the accident involved the (b)Exception for pre-employment alcohol testing. loss of human life;or An employer is not required to administer an alcohol (2)Who receives a citation under State or local law test required by paragraph(a)of this section if: for a moving traffic violation arising from the acci- (1) The driver has undergone an alcohol test re- dent. quired by this section or the alcohol misuse rule of (b)(1)Alcohol tests. If a test required by this section another DOT agency under part 40 of this title within is not administered within two hours following the the previous six months,with a result indicating an accident,the employer shall prepare and maintain on alcohol concentration less than 0.04; and file a record stating the reasons the test was not (2)The employer ensures that no prior employer of promptly administered. If a test required by this _ the driver of whom the employer has knowledge has section is not administered within eight hours follow- records of a violation of this part or the alcohol misuse ing the accident,the employer shall cease attempts to rule of another DOT agency within the previous six administer an alcohol test and shall prepare and months. maintain the same record. Records shall be submit- (c) Exception for pre-employment controlled sub- ted to the FHWA upon request of the Associate Ad- stances testing. An employer is not required to admin- ministrator. ister a controlled substances test required by para- (2)For the years stated in this paragraph,employ- graph(a)of this section if. ers who submit MIS reports shall submit to the (1) The driver has participated in a drug testing FHWA each record of a test required by this section program that meets the requirements of this part that is not completed within 8 hours. The employer's within the previous 30 days; and records of tests that are not completed within 8 hours (2)While participating in that program, either shall be submitted to the FHWA by March 15, 1996; (i)Was tested for controlled substances within the March 15, 1997; and March 15, 1998; for calendar past 6 months(from the date of application with the years 1995,1996,and 1997,respectively. Employers employer)or shall append these records to their MIS submissions. (ii)Participated in a random controlled substances Each record shall include the following information: testing program for the previous 12 months(from the (i) Type of test (reasonable suspicion/post-acci- date of application with the employer); and dent); (3)The employer ensures that no prior employer of (ii) Triggering event (including date, time, and the driver of whom the employer has knowledge has location); records of a violation of this part or the controlled (iii)Reason(s)test could not be completed within 8 substance use rule of another DOT agency within the hours; and previous six months. (iv) If blood alcohol testing could have been com- (d)(1)Anemployerwhoexerciseseitherparagraph pleted within eight hours, the name, address, and (b)or(c)of this section shall contact the alcohol and/ telephone number of the testing site where blood or controlled substances testing program(s)in which testing could have occurred. the driver participates or participated and shall ob- (3)Records of tests that could not be completed in tain from the testing program(s)the following infor- 8 hours shall be submitted to the FHWA at the mation: following address: Attn: Alcohol Testing Program, (i)Name(s)and address(es)of the program(s). Office of Motor Carrier Standards (HCS-1), Federal (ii) Verification that the driver participates or Highway Administration,400 Seventh Street, S.W., participated in the program(s). Washington,DC 20590. (iii) Verification that the program(s) conform to (4)Controlled substance tests. If a test required by part 40 of this title. this section is not administered within 32 hours (iv)Verification that the driver is qualified under following the accident, the employer shall cease at- the rules of this part,including that the driver has not tempts to administer a controlled substances test, refused to be tested for alcohol or controlled sub- and prepare and maintain on file a record stating the stances. reasons the test was not promptly administered. (v)The date the driver was last tested for alcohol or Records shall be submitted to the FHWA upon re- controlled substances. quest of the Associate Administrator. (vi) The results of any tests taken within the (c)A driver who is subject to post-accident testing previous six months and any other violations of sub- shall remain readily available for such testing or may part B of this part. be deemed by the employer to have refused to submit (2)An employer who uses,but does not employ,a to testing. Nothing in this section shall be construed driver more than once a year must assure itself once to require the delay of necessary medical attention for every six months that the driver participates in an injured people following an accident or to prohibit a alcohol and controlled substances testing program(s) driver from leaving the scene of an accident for the that meets the requirements of this part. period necessary to obtain assistance in responding to (e) Notwithstanding any other provisions of this the accident,or to obtain necessary emergency medi- subpart,all provisions and requirements in this sec- cal care. tion pertaining to preemployment testing for alcohol (d)An employer shall provide drivers with neces- are suspended as of May 1, 1995. sary post-accident information, procedures and in- i §382.303 Post-accident testing. structions,prior to the driver operating a commercial (a) As soon as practicable following an accident motor vehicle, so that drivers will be able to comply involving a commercial motor vehicle,each employer with the requirements of this section. shall test for alcohol and controlled substances each (e)The results of a breath or blood test for the use surviving driver: of alcohol or a urine test for the use of controlled E 5 12 i §382.303-§382.305 substances, conducted by Federal, State, or local controlled substances testing is based on the reported officials having independent authority for the test, positive rate for the entire industry. All information shall be considered to meet the requirements of this used for this determination is drawn from the con- section, provided such tests conform to applicable trolled substances management information system Federal, State or local requirements, and that the reports required by§382.403 of this part. In order to results of the tests are obtained by the employer. ensure reliability of the data,the FHWAAdministra- §382.305 Random testing. for considers the quality and completeness of the (a)(1)Except as provided in paragraphs(b)through reported data,may obtain additional information or S (d) of this section, the minimum annual percentage reports from employers, and may make appropriate rate for random alcohol testing shall be 25 percent of modifications in calculating the industry positive the number of drivers each selection period. rate. Each year,the FHWA Administrator will pub- (2)Except as provided in paragraphs (e)through lish in the Federal Register the minimum annual (g) of this section, the minimum annual percentage percentage rate for random controlled substances ' rate for random controlled substances testing shall be testing of drivers.The new minimum annual percent- 50 percent of the number of drivers each selection age rate for random controlled substances testing will period. be applicable starting January 1 of the calendar year (b) The FHWA Administrator's decision to in- following publication. s crease or decrease the minimum annual percentage (f)When the minimum annual percentage rate for rate for alcohol testing is based on the reported random controlled substances testing is 50 percent, violation rate for the entire industry. All information the FHWA Administrator may lower this rate to 25 used for this determination is drawn from the alcohol percent of all drivers if the FHWA Administrator management information system reports required by determines that the data received under the report- §382.403 of this part. In order to ensure reliability of ing requirements of §382.403 for two consecutive the data, the FHWA Administrator considers the calendar years indicate that the positive rate is less quality and completeness of the reported data, may than 1.0 percent. However, after the calendar year obtain additional information or reports from employ- 1994 of random testing for interstate motor carriers ers,and may make appropriate modifications in cal- under part 391, subpart H and the initial calendar culating the industry violation rate. Each year,the year of testing by large employers under this section, FHWA Administrator will publish in the Federal the FHWA Administrator may lower the rate for Register the minimum annual percentage rate for calendar year 1997, if the combined positive testing random alcohol testing of drivers. The new minimum rate is less than 1.0 percent,and if it would be in the annual percentage rate for random alcohol testing interest of safety. will be applicable starting January 1 of the calendar (g)When the minimum annual percentage rate for year following publication. random controlled substances testing is 25 percent, (c)(1)When the minimum annual percentage rate and the data received under the reporting require- for random alcohol testing is 25 percent or more,the ments of§382.403 for any calendar year indicate that FHWA Administrator may lower this rate to 10 per- the reported positive rate is equal to or greater than cent of all drivers if the FHWA Administrator deter- 1.0 percent, the FHWA Administrator will increase mines that the data received under the reporting the minimum annual percentage rate for random requirements of§382.403 for two consecutive calen- controlled substances testing to 50 percent of all dar years indicate that the violation rate is less than drivers. 0.5 percent. .(h)The selection of drivers for random alcohol and (2)When the minimum annual percentage rate for controlled substances testing shall be made by a random alcohol testing is 50 percent, the FHWA scientifically valid method,such as a random number Administrator may lower this rate to 25 percent of all table or a computer-based random number generator drivers if the FHWA Administrator determines that that is matched with drivers' Social Security num- the data received under the reporting requirements of bers,payroll identification numbers,or other compa- §382.403 for two consecutive calendar years indicate rable identifying numbers. Under the selection pro- that the violation rate is less than 1.0 percent but cess used, each driver shall have an equal chance of equal to or greater than 0.5 percent. being tested each time selections are made. (d)(1)When the minimum annual percentage rate (i)The employer shall randomly select a sufficient for random alcohol testing is 10 percent,and the data number of drivers for testing during each calendar received under the reporting requirements of§382.403 year to equal an annual rate not less than the mini- for that calendar year indicate that the violation rate mum annual percentage rate for random alcohol and is equal to or greater than 0.5 percent,but less than controlled substances testing determined by the 1.0 percent, the FHWA Administrator will increase FHWA Administrator. If the employer conducts ran- the minimum annual percentage rate for random dom testing for alcohol and/or controlled substances alcohol testing to 25 percent for all drivers. through a consortium, the number of drivers to be (2)When the minimum annual percentage rate for tested may be calculated for each individual employer random alcohol testing is 25 percent or less, and the or may be based on the total number of drivers covered data received under the reporting requirements of by the consortium who are subject to random alcohol §382.403 for that calendar year indicate that the and/or controlled substances testing at the same violation rate is equal to or greater than 1.0 percent, minimum annual percentage rate under this part or the FHWA Administrator will increase the minimum any DOT alcohol or controlled substances random annual percentage rate for random alcohol testing to testing rule. 50 percent for all drivers. (j)Each employer shall ensure that random alco- (e)The FHWAAdministrator's decision to increase hol and controlled substances tests conducted under or decrease the minimum annual percentage rate for this part are unannounced and that the dates for 13 §382.305-§382.307 administering random alcohol and controlled sub- (d) Alcohol testing is authorized by this section stances tests are spread reasonably throughout the only if the observations required by paragraph(a)of calendar year. this section are made during,just preceding,or just (k) Each employer shall require that each driver after the period of the work day that the driver is who is notified of selection for random alcohol and/or required to be in compliance with this part. A driver controlled substances testing proceeds to the test site may be directed by the employer to only undergo immediately;provided,however,that if the driver is reasonable suspicion testing while the driver is per- performing a safety-sensitive function at the time of forming safety-sensitive functions, just before the notification, the employer shall instead ensure that driver is to perform safety-sensitive functions,or just the driver ceases to perform the safety-sensitive func- after the driver has ceased performing such functions. tion and proceeds to the testing site as soon as pos- (e)(1) If an alcohol test required by this section is sible. not administered within two hours following the de- (1)A driver shall only be tested for alcohol while the termination under paragraph(a)of this section, the driver is performing safety-sensitive functions,just employer shall prepare and maintain on file a record before the driver is to perform safety-sensitive func- stating the reasons the alcohol test was not promptly tions, or just after the driver has ceased performing administered. If an alcohol test required by this such functions. section is not administered within eight hours follow- (m)If a given driver is subject to random alcohol or ing the determination under paragraph (a) of this controlled substances testing under the random alco- section,the employer shall cease attempts to admin- hol or controlled substances testing rules of more than ister an alcohol test and shall state in the record the one DOT agency for the same employer, the driver reasons for not administering the test. shall be subject to random alcohol and/or controlled (2)For the years stated in this paragraph,employ- substances testing at the annual percentage rate ers who submit MIS reports shall submit to the established for the calendar year by the DOT agency FHWA each record of a test required by this section regulating more than 50 percent of the driver's func- that is not completed within 8 hours. The employer's tion. records of tests that could not be completed within 8 (n) If an employer is required to conduct random hours shall be submitted to the FHWA by March 15, alcohol or controlled substances testing under the 1996;March 15, 1997;and March 15,1998;for calen- alcohol or controlled substances testing rules of more dar years 1995, 1996, and 1997, respectively. Em- than one DOT agency, the employer may— ployers shall append these records to their MIS sub- (1)Establish separate pools for random selection, missions. Each record shall include the following with each pool containing the DOT-covered employ- information: ees who are subject to testing at the same required (i) Type of test (reasonable suspicion/post-acci- minimum annual percentage rate;or dent); 4 OW (2)Randomly select such employees for testing at (ii) Triggering event (including date, time, and the highest minimum annual percentage rate estab- location); lished for the calendar year by any DOT agency to (iii)Reason(s)test could not be completed within 8 which the employer is subject. hours; and §382.307 Reasonable suspicion testing. (iv) If blood alcohol testing could have been com- (a)An employer shall require a driver to submit to pleted within eight hours, the name, address, and an alcohol test when the employer has reasonable telephone number of the testing site where blood suspicion to believe that the driver has violated the testing could have occurred. prohibitions of subpart B of this part concerning (3)Records of tests that could not be completed in alcohol,except for§382.204. The employer's determi- 8 hours shall be submitted to the FHWA at the = nation that reasonable suspicion exists to require the following address: Attn: Alcohol Testing Program, driver to undergo an alcohol test must be based on Office of Motor Carrier Standards (HCS-1), Federal specific, contemporaneous, articulable observations Highway Administration, 400 Seventh Street, S.W., concerning the appearance,behavior,speech or body Washington,DC 20590. odors of the driver. (4) Notwithstanding the absence of a reasonable (b)An employer shall require a driver to submit to suspicion alcohol test under this section, no driver a controlled substances test when the employer has shall report for duty or remain on duty requiring the f reasonable suspicion to believe that the driver has performance of safety-sensitive functions while the violated the prohibitions of subpart B of this part driver is under the influence of or impaired by alcohol, concerning controlled substances. The employer's as shown by the behavioral,speech,and performance determination that reasonable suspicion exists to indicators of alcohol misuse, nor shall an employer require the driver to undergo a controlled substances permit the driver to perform or continue to perform test must be based on specific, contemporaneous, safety-sensitive functions,until: articulable observations concerning the appearance, (i)An alcohol test is administered and the driver's behavior, speech or body odors of the driver. The alcohol concentration measures less than 0.02;or - observations may include indications of the chronic (ii)Twenty four hours have elapsed following the and withdrawal effects of controlled substances. determination under paragraph (a) of this section (c) The required observations for alcohol and/or that there is reasonable suspicion to believe that the i controlled substances reasonable suspicion testing driver has violated the prohibitions in this part con- 1 shall be made by a supervisor or company official who cerning the use of alcohol. x • is trained in accordance with §382.603 of this part. (5)Except as provided in paragraph(e)(2)of this The person who makes the determination that rea- section,no employer shall take any action under this 1 sonable suspicion exists to conduct an alcohol test part against a driver based solely on the driver's shall not conduct the alcohol test of the driver. behavior and appearance,with respect to alcohol use, 14 §382.307-§382.401 in the absence of an alcoho;-west. This does not (2) Two years. hz:cords related to the alcohol and prohibit an employer with independent authority of controlled substances collection process(except Cali- ; this part from taking any action otherwise consistent bration of evidential breath testing devices)and train- with law. ing shall be maintained for a minimum of two years. (fl A written record shall be made of the observa- (3) One year. Records of negative and canceled tions leading to a controlled substance reasonable controlled substances test results(as defined in part suspicion test, and signed by the supervisor or com- 40 of this title)and alcohol test results with a concen- pany official who made the observations, within 24 tration of less than 0.02 shall be maintained for a hours of the observed behavior or before the results of minimum of one year. the controlled substances test are released, which- (c)Types of records. The following specific records ever is earlier. shall be maintained. §382.309 Return to duty testing. (1)Records related to the collection process: (a)Each employer shall ensure that before a driver (i)Collection logbooks,if used; s returns to duty requiring the performance of a safety- (ii) Documents relating to the random selection i sensitive function after engaging in conduct prohib- process; ited by subpart B of this part concerning alcohol,the (iii) Calibration documentation for evidential driver shall undergo a return-to-duty alcohol test breath testing devices; with a result indicating an alcohol concentration of (iv) Documentation of breath alcohol technician less than 0.02. training; (b)Each employer shall ensure that before a driver (v)Documents generated in connection with deci- returns to duty requiring the performance of a safety- sions to administer reasonable suspicion alcohol or t sensitive function after engaging in conduct prohib- controlled substances tests; ited by subpart B of this part concerning controlled (vi)Documents generated in connection with deci- substances,the driver shall undergo a return-to-duty sions on post-accident tests; controlled substances test with a result indicating a (vii) Documents verifying existence of a medical verified negative result for controlled substances use. explanation of the inability of a driver to provide §382.311 Follow-up testing. adequate breath or to provide a urine specimen for (a) Following a determination under §382.605(b) testing; and that a driver is in need of assistance in resolving (viii) Consolidated annual calendar year summa- problems associated with alcohol misuse and/or con- ries as required by§382.403. trolled substances, each employer shall ensure that (2)Records related to a driver's test results: the driveris subject to unannounced follow-up alcohol (i) The employer's copy of the alcohol test form, and/or controlled substances testing as directed by a including the results of the test; substance abuse professional in accordance with the (ii) The employer's copy of the controlled sub- provisions of§382.605(c)(2)(ii). stances test chain of custody and control form; (b) Follow-up alcohol testing shall be conducted (iii)Documents sent by the medical review officer only when the driver is performing safety-sensitive to the employer, including those required by functions,just before the driver is to perform safety- §382.407(a). sensitive functions,or just after the driver has ceased (iv)Documents related to the refusal of any driver performing safety-sensitive functions. to submit to an alcohol or controlled substances test required by this part; and SUBPART D—HANDLING OF TEST (v)Documents presented by a driver to dispute the RESULTS,RECORD RETENTION AND result of an alcohol or controlled substances test CONFIDENTIALITY administered under this part. (3)Records related to other violations of this part. §382.401 Retention of records. (4)Records related to evaluations: (a) General Requirement. Each employer shall (i) Records pertaining to a determination by a maintain records of its alcohol misuse and controlled substance abuse professional concerning a driver's 1 substances use prevention programs as provided in need for assistance; and this section. The records shall be maintained in a (ii)Records concerning a driver's compliance with secure location with controlled access. recommendations of the substance abuse professional. (b)Period of Retention. Each employer shall main- (5)Records related to education and training: tain the records in accordance with the following (i) Materials on alcohol misuse and controlled schedule: substance use awareness, including a copy of the (1) Five years. The following records shall be employer's policy on alcohol misuse and controlled maintained for a minimum of five years: substance use; (i) Records of driver alcohol test results with re- (ii)Documentation of compliance with the require- sults indicating an alcohol concentration of 0.02 or ments of§382.601; including the driver's signed re- greater, ceipt of education materials; (ii) Records of driver verified positive controlled (iii)Documentation of training provided to super- substances test results, visors for the purpose of qualifying the supervisors to (iii) Documentation of refusals to take required make a determination concerning the need for alcohol alcohol and/or controlled substances tests, and/or controlled substances testing based on reason- (iv) Calibration documentation, able suspicion;and (v)Driver evaluation and referrals shall be main- (iv)Certification that any training conducted un- tained for a minimum of five years, and der this part complies with the requirements for such (vi)A copy of each annual calendar year summary training. required pursuant to§382.403. `i,`+ 15 §382.401-§382.403 (6)Records related to drug testing: (7)Number of drivers with tests verified positive (i)Agreements with collection site facilities,labo- by a medical review officer for multiple controlled ratories, medical review officers, and consortia; substances; • (ii)Names and positions of officials and their role (8)Number of drivers who refused to submit to an in the employer's alcohol and controlled substances alcohol or controlled substances test required under testing program(s); this subpart; (iii) Monthly laboratory statistical summaries of (9)(i) Number of supervisors who have received urinalysis required by§40.29(g)(6); and required alcohol training during the reporting period; (iv)The employer's drug testing policy and proce- and dures. (ii) Number of supervisors who have received re- d)Location of records. All records required by this quired controlled substances training during the re- part shall be maintained as required by §390.31 of porting period; this subchapter and shall be made available for in- (10)(i)Number of screening alcohol tests by type of spection at the employer's principal place of business test; and within two business days after a request has been (ii)Number of confirmation alcohol tests,by type of made by an authorized representative of the Federal test; Highway Administration. (11)Number of confirmation alcohol tests indicat- §382.403 Reporting of results in a manage- ing an alcohol concentration of 0.02 or greater but less ment information system. than 0.04,by type of test; (a) An employer shall prepare and maintain a (12)Number of confirmation alcohol tests indicat- summary of the results of its alcohol and controlled ing an alcohol concentration of 0.04 or greater,by type substances testing programs performed under this of test; part during the previous calendar year, when re- (13)Number of drivers who were returned to duty quested by the Secretary of Transportation,any DOT (having complied with the recommendations of a agency,or any State or local officials with regulatory substance abuse professional as described in§§382.503 authority over the employer or any of its drivers. and 382.605), in this reporting period, who previ- (b)If an employer is notified,during the month of ously: January,of a request by the Federal Highway Admin- (i)Had a verified positive controlled substance test istration to report the employer's annual calendar result, or year summary information, the employer shall pre- (ii) Engaged in prohibited alcohol misuse under pare and submit the report to the Federal Highway the provisions of this part; Administration by March 15 of that year. The em- (14) Number of drivers who were administered ployer shall ensure that the annual summary report alcohol and drug tests at the same time,with both a is accurate and received by March 15 at the location verified positive drug test result and an alcohol test that the Federal Highway Administration specifies in result indicating an alcohol concentration of 0.04 or its request. The report shall be in the form and greater; and manner prescribed by the Federal Highway Adminis- (15) Number of drivers who were found to have tration in its request. When the report is submitted violated any non-testing prohibitions of subpart B of to the Federal Highway Administration by mail or this part, and any action taken in response to the electronic transmission, the information requested violation. shall be typed,except for the signature of the certify- (d) Each employer's annual calendar year sum- ing official. Each employer shall ensure the accuracy mary that contains only negative controlled sub- and timeliness of each report submitted by the em- stance test results, alcohol screening test results of ployer or a consortium. less than 0.02,and does not contain any other viola- (c)Each annual calendar year summary that con- tions of subpart B of this part, may prepare and tains information on a verified positive controlled submit, as required by paragraph(b)of this section, substances test result, an alcohol screening test re- either a standard report form containing all the infor- sult of 0.02 or greater, or any other violation of the mation elements specified in paragraph (c) of this alcohol misuse provisions of subpart B of this part section,or an"EZ"report form. The"EZ"report shall shall include the following informational elements: include the following information elements: (1)Number of drivers subject to part 382; (1)Number of drivers subject to part 382; (2)Number of drivers subject to testing under the (2)Number of drivers subject to testing under the alcohol misuse or controlled substances use rules of alcohol misuse or controlled substance use rules of more than one DOT agency,identified by each agency; more than one DOT agency,identified by each agency; (3)Number of urine specimens collected by type of (3)Number of urine specimens collected by type of test(e.g., pre-employment, random, reasonable sus- test(e.g., pre-employment, random,reasonable sus- picion, post-accident); picion, post-accident); (4)Number of positives verified by a MRO by type (4) Number of negatives verified by a medical _ of test,and type of controlled substance; review officer by type of test; (5)Number of negative controlled substance tests (5)Number of drivers who refused to submit to an verified by a MRO by type of test; alcohol or controlled substances test required under (6)Number of persons denied a position as a driver this subpart; following a pre-employment verified positive con- (6)(i) Number of supervisors who have received j trolled substances test and/or a pre-employment alco- required alcohol training during the reporting period; hol test that indicates an alcohol concentration of 0.04 and • or greater; i 16 I .M - — §382.403-1382.409 (ii) Number of supervisors Abave received re- driver. Disclosure L. he subsequent employer is quired controlled substances training during the re- permitted only as expressly authorized by the terms porting period; of the driver's request. (7)Number of screen alcohol tests by type of test; (g)An employer may disclose information required and to be maintained under this part pertaining to a (8)Number of drivers who were returned to duty driver,the decisionmaker in a lawsuit,grievance,or (having complied with the recommendations of a other proceeding initiated by or on behalf of the { substance abuse professional as described in§§382.503 individual,and arising from the results of an alcohol ' and 382.605), in this reporting period, who previ- and/or controlled substances test administered under ously: this part, or from the employer's determination that i (i)Had a verified positive controlled substance test the driver engaged in conduct prohibited by subpart result, or B of this part(including,but not limited to,a worker's (ii) Engaged in prohibited alcohol misuse under compensation,unemployment compensation,or other the provisions of this part. proceeding relating to a benefit sought by the driver.) (e)Each employer that is subject to more than one (h)An employer shall release information regard- DOT agency alcohol or controlled substances rule ing a driver's records as directed by the specific, shall identify each driver covered by the regulations written consent of the driver authorizing release of ' of more than one DOT agency. The identification will the information to an identified person. Release of be by the total number of covered functions. Prior to such information by the person receiving the informa- conducting any alcohol or controlled substances test tion is permitted only in accordance with the terms of on a driver subject to the rules of more than one DOT the employee's consent. agency, the employer shall determine which DOT §382.407 Medical review officer notifications agency rule or rules authorizes or requires the test. to the employer. The test result information shall be directed to the (a) The medical review officer may report to the appropriate DOT agency or agencies. employer using any communications device,but in all (f) A consortium may prepare annual calendar instances a signed, written notification must be for- year summaries and reports on behalf of individual warded within three business days of completion of employers for purposes of compliance with this sec- the medical review officer's review,pursuant to part 1 tion. However,each employer shall sign and submit 40 of this title. A medical review officer shall report such a report and shall remain responsible for ensur- to an employer clearly: ing the accuracy and timeliness of each report pre- (1) That the controlled substances test being re- pared on its behalf by a consortium. ported was in accordance with part 40 of this title and §382.405 Access to facilities and records. this part; (a)Except as required by law or expressly autho- (2)The name of the individual for whom the test rized or required in this section, no employer shall results are being reported; release driver information that is contained in records (3) The type of test indicated on the custody and required to be maintained under§382.401. control form(i.e., random,post-accident, etc.); (b) A driver is entitled, upon written request, to (4)The date and location of the test collection; obtain copies of any records pertaining to the driver's (5) The identities of the persons or entities per- use of alcohol or controlled substances,including any forming the collection,analysis of the specimens and records pertaining to his or her alcohol or controlled serving as the medical review officer for the specific substances tests. The employer shall promptly pro- test; vide the records requested by the driver. Access to a (6)The verified results of a controlled substances driver's records shall not be contingent upon payment test, either positive or negative, and if positive, the for records other than those specifically requested. identity of the controlled substance(s)for which the (c)Each employer shall permit access to all facili- test was verified positive. ties utilized in complying with the requirements of (b) A medical review officer shall report to the this part to the Secretary of Transportation,any DOT employer that the medical review officer has made all agency,or any State or local officials with regulatory reasonable efforts to contact the driver as provided in 1 authority over the employer or any of its drivers. §40.33(c)of this title. The employer shall,as soon as (d)Each employer shall make available copies of practicable,request that the driver contact the medi- all results for employer alcohol and/or controlled cal review officer prior to dispatching the driver or substances testing conducted under this part and any within 24 hours,whichever is earlier. other information pertaining to the employer's alco- §382.409 Medical review officer record re- hol misuse and/or controlled substances use preven- tention for controlled substances. tion program, when requested by the Secretary of (a) A medical review officer shall maintain all Transportation,any DOT agency,or any State or local dated records and notifications, identified by indi- officials with regulatory authority over the employer vidual,for a minimum of five years for verified posi- or any of its drivers. tive controlled substances test results. (e) When requested by the National Transporta- (b) A medical review officer shall maintain all - tion Safety Board as part of an accident investigation, dated records and notifications, identified by indi- employers shall disclose information related to the vidual, for a minimum of one year for negative and employer's administration of a post-accident alcohol canceled controlled substances test results. and/or controlled substances test administered fol- (c)No person may obtain the individual controlled lowing the accident under investigation. substances test results retained by a medical review (f)Records shall be made available to a subsequent officer,and no medical review officer shall release the employer upon receipt of a written request from the individual controlled substances test results of any 17 §382.409-§382.507 driver to any person, without first obtaining a spe- information that ensures confidentiality. Each em- cific, written authorization from the tested driver. ployer must maintain a written, confidential record Nothing in this paragraph shall prohibit a medical with respect to each past employer contacted. review officer from releasing, to the employer or to (g)An employer may not use a driver to perform officials of the Secretary of Transportation,any DOT safety-sensitive functions if the employer obtains agency,or any State or local officials with regulatory information on the driver's alcohol test with a concen- authority over the controlled substances testing pro- tration of 0.04 or greater,verified positive controlled gram under this part, the information delineated in substances test result,or refusal to be tested,by the §382.407(a)of this subpart. driver, without obtaining information on a subse- §382.411 Employer notifications. quent substance abuse professional evaluation and/ (a)An employer shall notify a driver of the results or determination under §382.401(c)(4) and compli- of a pre-employment controlled substance test con- ance with§382.309. ducted under this part, if the driver requests such results within 60 calendar days ofbeing notified of the SUBPART E—CONSEQUENCES FOR disposition of the employment application. An em- DRIVERS ENGAGING IN SUBSTANCE USE- ployer shall notify a driver of the results of random, RELATED CONDUCT reasonable suspicion and post-accident tests for con- trolled substances conducted under this part if the §382.501 Removal from safety-sensitive func- test results are verified positive. The employer shall tion. also inform the driver which controlled substance or (a)Except as provided in subpart F of this part,no substances were verified as positive. driver shall perform safety-sensitive functions, in- (b)The designated management official shall make cluding driving a commercial motor vehicle, if the reasonable efforts to contact and request each driver driver has engaged in conduct prohibited by subpart who submitted a specimen under the employer's pro- B of this part or an alcohol or controlled substances gram,regardless of the driver's employment status, rule of another DOT agency. to contact and discuss the results of the controlled (b)No employer shall permit any driver to perform substances test with a medical review officer who has safety-sensitive functions, including driving a com- been unable to contact the driver. mercial motor hicle,if the employer has determined (c)The designated management official shall im- that the driver has violated this section. mediately notify the medical review officer that the (c)For purposes of this subpart,commercial motor driver has been notified to contact the medical review vehicle means a commercial motor vehicle in com- oflicer within 24 hours. merce as defined in§382.107,and a commercial motor §382.413 Release of alcohol and controlled vehicle in interstate commerce as defined in part 390. { substances test information by previous em- §382.503 Required evaluation and testing. ployers. No driver who has engaged in conduct prohibited (a)An employer may obtain,pursuant to a driver's by subpart B of this part shall perform safety-sensi- written consent, any of the information concerning tive functions,including driving a commercial motor the driver which is maintained under this part by the vehicle,unless the driver has met the requirements of driver's previous employers. §382.605. No employer shall permit a driver who has (b)An employer shall obtain,pursuant to a driver's engaged in conduct prohibited by subpart B of this consent,information on the driver's alcohol tests with part to perform safety-sensitive functions,including a concentration result of 0.04 or greater, positive driving a commercial motor vehicle,unless the driver controlled substances test results,and refusals to be has met the requirements of§382.605. tested, within the preceding two years, which are §382.505 Other alcohol-related conduct. maintained by the driver's previous employers under (a)No driver tested under the provisions of subpart §382.401(b)(1)(i)through(iii). C of this part who is found to have an alcohol concen- (c)The information in paragraph(b)of this section tration of 0.02 or greater but less than 0.04 shall must be obtained and reviewed by the employer no perform or continue to perform safety-sensitive func- later than 14 calendar days after the first time a tions for an employer,including driving a commercial driver performs safety-sensitive functions for an em- motor vehicle,nor shall an employer permit the driver ployer, if it is not feasible to obtain the information to perform or continue to perform safety-sensitive prior to the driver performing safety-sensitive func- functions,until the start of the driver's next regularly tions. An employer may not permit a driver to scheduled duty period, but not less than 24 hours perform safety-sensitive functions after 14 days with- following administration of the test. out obtaining the information. (b) Except as provided in paragraph (a) of this (d)If the driver stops performing safety-sensitive section,no employer shall take any action under this functions for the employer before expiration of the 14 part against a driver based solely on test results day period or before the employer has obtained the showing an alcohol concentration less than 0.04. This information in paragraph(b)of this section, the em- does not prohibit an employer with authority inde- ployer must still obtain the information. pendent of this part from taking any action otherwise (e)The prospective employer must provide to each consistent with law. of the driver's employers within the two preceding §382.507 Penalties. years the driver's specific, written authorization for Any employer or driver who violates the require- release of the information in paragraph(b). ments of this part shall be subject to the penalty (f)The release of any information under this part provisions of 49 U.S.C. §521(b). may take the form of personal interviews,telephone interviews,letters,or any other method of obtaining 18 §382.601-§382.605 • SUBPART F—ALCOHOL ,SUSE AND (c)Optional prouisen. The materials supplied to CONTROLLED SUBSTANCES USE drivers may also include information on additional INFORMATION,TRAINING,AND REFERRAL employer policies with respect to the use or possession of alcohol or controlled substances, including any §382.601 Motor carrier obligation to promul- consequences for a driver found to have a specified gate a policy on the misuse of alcohol and use of alcohol or controlled substances level,that are based controlled substances. on the employer's authority ~` (a) General requirements. Each employer shall Any such additional policies orconsequences this st be provide educational materials that explain the re- clearly and obviously described as being based on quirements of this part and the employer's policies independent authority. and procedures with respect to meeting these require- (d) Certificate of receipt. Each employer shall en- ments. sure that each driver is required to sign a statement (1)The employer shall ensure that a copy of these certifying that he or she has received a copy of these materials is distributed to each driver prior to the materials described in this section. Each employer start of alcohol and controlled substances testing shall maintain the original of the signed certificate under this part and to each driver subsequently hired and may provide a copy of the certificate to the driver. or transferred into a position requiring driving a §382.603 Training for supervisors. commercial motor vehicle. (a)Each employer shall ensure that persons desig- (2)Each motor carrier shall provide written notice nated to determine whether reasonable suspicion to representatives of employee organizations of the exists to require a driver to undergo testing under availability of this information. §382.307 receive at least 60 minutes of training on (b) Required content. The materials to be made alcohol misuse and receive at least an additional 60 available to drivers shall include detailed discussion minutes of training on controlled substances use. The of at least the following: training shall cover the physical,behavioral,speech, (1) The identity of the person designated by the and performance indicators of probable alcohol mis- employer to answer driver questions about the mate- use and use of controlled substances. rials; §382.605 Referral,evaluation,and treatment. (2)The categories of drivers who are subject to the (a)Each driver who has engaged in conduct prohib- provisions of this part; ited by subpart B of this part shall be advised by the (3) Sufficient information about the safety-sensi- employer of the resources available to the driver in tive functions performed by those drivers to make evaluating and resolving problems associated with clear what period of the work day the driver is re- the misuse of alcohol and use of controlled substances, quired to be in compliance with this part; including the names,addresses,and telephone num- (4)Specific information concerning driver conduct bers of substance abuse professionals and counselling that is prohibited by this part; and treatment programs. (5)The circumstances under which a driver will be (b)Each driver who engages in conduct prohibited tested for alcohol and/or controlled substances under by subpart B of this part shall be evaluated by a this part; substance abuse professional who shall determine (6)The procedures that will be used to test for the what assistance,if any,the employee needs in resoly- presence of alcohol and controlled substances,protect ing problems associated with alcohol misuse and the driver and the integrity of the testing processes, controlled substances use. safeguard the validity of the test results,and ensure (c)(1)Before a driver returns to duty requiring the that those results are attributed to the correct driver; performance of a safety-sensitive functior- after en- (7)The requirement that a driver submit to alcohol gaging in conduct prohibited by subpart B of this part, and controlled substances tests administered in ac- the driver shall undergo a return to duty alcohol test cordance with this part; with a result indicating an alcohol concentration of (8)An explanation of what constitutes a refusal to less than 0.02 if the conduct involved alcohol, or a submit to an alcohol or controlled substances test and controlled substances test with a verified negative the attendant consequences; result if the conduct involved a controlled substance. (9) The consequences for drivers found to have (2) In addition, each driver identified as needing violated subpart B of this part,including the require- assistance in resolving problems associated with alco- ment that the driver be removed immediately from hol misuse or controlled substances use, safety-sensitive functions,and the procedures under (i)Shall be evaluated by a substance abuse profes- §382.605; sional to determine that the driver has properly (10)The consequences for drivers found to have an followed any rehabilitation program prescribed un- alcohol concentration of 0.02 or greater but less than der paragraph(b)of this section, and 0.04; (ii) Shall be subject to unannounced follow-up k (11) Information concerning the effects of alcohol alcohol and controlled substances tests administered and controlled substances use on an individual's by the employer following the driver's return to duty. health, work, and personal life;signs and symptoms The number and frequency of such follow-up testing of an alcohol or a controlled substances problem(the shall be as directed by the substance abuse profes- driver's or a coworker's); and available methods of sional, and consist of at least six tests in the first 12 intervening when an alcohol or a controlled sub- months following the driver's return to duty. The stances problem is suspected, including confronta- employer may direct the driver to undergo return-to- tion,referral to any employee assistance program and duty and follow-up testing for both alcohol and Con- or referral to management. trolled substances, if the substance abuse profes- 19 I $382.605 sional determines that return-to-duty and follow-up or in which the substance abuse professional has a testing for both alcohol and controlled substances is financial interest. This paragraph does not prohibit necessary for that particular driver. Follow-up test- a substance abuse professional from referring a driver ing shall not exceed 60 months from the date of the for assistance provided through— driver's return to duty. The substance abuse profes- (1) A public agency, such as a State, county, or sional may terminate the requirement for follow-up municipality; testing at any time after the first six tests have been (2) The employer or a person under contract to administered, if the substance abuse professional provide treatment for alcohol or controlled substance determines that such testing is no longer necessary. problems on behalf of the employer; (d)Evaluation and rehabilitation may be provided (3)The sole source of therapeutically appropriate by the employer, by a substance abuse professional treatment under the driver's health insurance pro- under contract with the employer,or by a substance gram;or abuse professional not affiliated with the employer. (4)The sole source of therapeutically appropriate The choice of substance abuse professional and as- treatment reasonably accessible to the driver. signment of costs shall be made in accordance with (f)The requirements of this section with respect to employer/driver agreements and employer policies. referral,evaluation and rehabilitation do not apply to (e) The employer shall ensure that a substance applicants who refuse to submit to a pre-employment abuse professional who determines that a driver re- alcohol or controlled substances test or who have a quires assistance in resolving problems with alcohol pre-employment alcohol test with a result indicating misuse or controlled substances use does not refer the an alcohol concentration of 0.04 or greater or a con- driver to the substance abuse professional's private trolled substances test with a verified positive test practice or to a person or organization from which the result. substance abuse professional receives remuneration r 20