|
|
 |
|
Straight
Track #81 Part
II: Drug & Alcohol Testing
Hoey & Farina
info@felahfd.com
1-888-425-1212 / 312-939-1212
The
following is Part II of a three part series on the new Department of
Transportation requirements for Drug & Alcohol Testing. Part II also
includes information on how to protect yourself during such testing.
We
again wish to recognized Mr. Ray Lineweber, who has allowed us to run the
pamphlet he put together on the Title 49 changes. We thank him for the
time and effort he has dedicated to the issue.
Any
questions regarding alcohol and drug testing on the railroad can be
answered by your local union officers and, alternately, your union
designated legal counsel.
Drug
& Alcohol Testing
This
material is provided for UTU members, and interested parties, by the
Nebraska State Legislative Board (NSLB). Most of the research used for
this guidance is found in the amended rule, the final rule, and the
discussion of comments for 49 Code of Federal Regulations (CFR) Part 40.
The material (408 pages) is posted at www.dot.gov/ost/dapc.
++++++++++++++++++++++++++++++++++
This information is not intended to assist anybody in circumventing a
test, but rather to aid in making certain the employees and employer have
a comfort level with the manner in which testing is conducted and
analyzed. Should there be any questions, please call Ray Lineweber at
402-474-6053 or email to raylineweb@aol.com.
PLEASE -- ALWAYS BE PROFESSIONAL. Our goals must be the same.
++++++++++++++++++++++++++++++++++
Some
“tips”, which are offered in response to previous questions, are as
follows:
-
Mouthwash
will not give a confirmed Blood and Alcohol Test (BAT) test
result.
-
Over
the counter medication, taken as prescribed, will not give a confirmed
BAT test result.
-
Any
initial BAT test result of 0.02 or greater shall be confirmed after a
15 minute wait, with a second test. If the result of the 2nd
(confirmation) test is less than 0.02, the test result will be
reported as negative.
-
The
current regulation [49 CFR 219.201, subpart (b)] states: “No test
shall be required in the case of a collision between railroad rolling
stock and a motor vehicle or other highway conveyance at a
rail/highway grade crossing.” FRA also agrees, in writing, with
UTU that testing is not allowed in a collision with a trespasser or
pedestrian.
-
Breath
Alcohol testing is a “form” of on-site testing. DOT disallows
on-site drug testing in this regulation. Some employers may
initiate on-site testing as a “company policy” measure, but cannot
use the “on-site” urine test as a final result without
confirmation. State statutes would cover the “company policy”
test protocols, if the company policy does not have disclaimer
following federal protocols.
-
Nebraska
statutes 48-1901 to 48-1910 apply to “company policy” testing,
when the test is not governed by DOT rules.
-
Blood
Alcohol and Urine Alcohol Tests are not permitted under 49 CFR Part
40.277.
49
CFR PART 40 …Changes 2001
The
Department of Transportation (DOT) published the revised drug and alcohol
testing rule in December 2000. There are two segments of it. The first is
an amended version of 49 CFR Part 40, which became effective January 19,
2001. This addresses issues that enhance fairness and integrity of the
process, which needed to be implemented immediately. The second is the
“Final Rule” which will become effective on August 1, 2001.
++++++++++++++++++++++++++++++++++
On August 1, 2001, the “Final Rule” will completely replace the
existing Part 40 (including amendments), any previous guidance, i.e.
Program Documents (PD’s), and all interpretations relating to the same
subject matter issued previously.
++++++++++++++++++++++++++++++++++
A
brief synopsis of the major highlights of the amendments and revisions to
Part 40 are provided with this informational document.
Summary
of Part 40 Amendment – Effective January 18, 2001
-
Laboratories
are authorized to conduct validity testing, but shall follow
requirements of HHS when doing so (Subpart F).
-
When
a primary urine sample has been determined to be substituted or
adulterated, the accused employee shall be accorded the opportunity,
by the Medical Review Officer (MRO) to have the “split” analyzed
at another HHS laboratory (Subpart G). The regulation is silent on
who chooses the laboratory or pays for this test. In Nebraska, the
Nebraska State Legislative Board offers to pay for the test of the
“split”. We have a duty to make certain employees who are innocent
are protected from being wronged, with the safeguards we have
available through regulation. At the same time, we have a duty to
encourage any employee to enter into a substance abuse program, if the
employee knows he or she is wrong.
-
Test
results, which result in a finding of adulteration/substitution,
require review by a qualified MRO. The employee has the burden to
prove the laboratory finding to have entered the body through normal
physiological means. A urologist is probably acceptable, but a virtual
“demonstration in a controlled environment” to verify the medical
explanation, will be needed to convince the MRO (Subpart G).
-
DOT
may institute a Public Interest Exclusion (PIE) to prohibit service
agents from participating in DOT Programs, if the service agents have
serious noncompliance violations (Subpart R).
Summary
of Part 40 Revised – Effective August 1, 2001
DOT
has realigned the drug and alcohol test provisions as found in Part 40,
and divided the same into many subparts and appendices. Using a direct
question and answer format, the language is specific and directs relevant
parties to take detailed actions.
Employer
Responsibilities (the umbrella agencies, i.e. FRA, et al, shall follow
these rules)(Subpart B)
-
Employers
and service agents (collectors, laboratories, MRO’s) are required to
comply with all the provisions of the DOT drug and alcohol testing
regulations (40.11).
-
An
employer may contract the drug and alcohol functions to others, but
cannot contract away the responsibilities to comply with these
regulations. (40.11)
-
DOT
employers are required to provide information when requested, in a
confidential manner (40.331).
Collectors
(Urine) (Subpart C)
Collection
Sites (Subpart D)
Urine
Specimen Collections (Subpart E)
Please
also refer to The Urine Specimen Collection Checklist
contained herein.
[top]
|
|
Union Approved
FELA Lawyers
|
