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10 A. Drug and Alcohol Testing49 requires compliance with the FMCSA's drug and alco- The Omnibus Transportation Employee Testing Act hol testing requirements, to the extent that the FMCSA of 1991 (Omnibus Testing Act)50 requires alcohol and requirements are applicable.56 The FMCSA regulation controlled substance testing for employees performing only applies to CDL holders and specifically excepts safety-sensitive functions in several modes, including employers and drivers required to comply with Part 57 mass transit. The U.S. Department of Transportation 655, although individual CDL holders are subject to (USDOT) implements this legislation through the de- FMCSA sanctions and other ramifications for violating partment's regulation on Procedures for Transportation FMCSA drug and alcohol testing requirements that Workplace Drug and Alcohol Testing Programs.51 Both were not included in the FTA regulation.58 FMCSA and FTA apply those procedural requirements The requirements of the USDOT, FMCSA, FRA, and through their drug and alcohol testing regulations.52 FTA drug and alcohol testing regulations are discussed Federal Railroad Administration (FRA) requirements, below. Transit agency drug and alcohol testing policies, which predate the Omnibus Testing Act, apply to com- as well as legal challenges to employee drug and alcohol muter rail employees. 53 testing under the regulations, are also discussed. Section 5331 of U.S.C. Title 49 also requires a pro- 1. DOT Regulation gram of alcohol and controlled substance testing to ap- ply to recipients of funding under 5307, 5309, and The USDOT regulation covers all parties who con- 5311 of Title 49. The program requires drug testing for duct drug and alcohol tests required by USDOT's agen- public transportation employees responsible for safety- cies and specifies the procedures that must be used in sensitive functions to be conducted preemployment, on conducting those tests. Important substantive require- reasonable suspicion, randomly, and post-accident. ments include: the employer is responsible for compli- Reasonable suspicion, random, and post-accident test- ance with the regulation, including the actions of its 59 ing for the use of alcohol in violation of law or a federal agents in conducting testing; employers must immedi- regulation must be conducted for such employees; pre- ately remove employees from safety-sensitive functions employment alcohol testing is at the discretion of the upon receiving a positive drug test result;60 employers public transportation operator. Section 5331 also au- must check on an employee's drug and alcohol testing thorizes the Secretary of Transportation to require pe- record before allowing the employee to begin safety- riodic recurring testing of public transportation em- sensitive job functions;61 and employers must direct a ployees responsible for safety-sensitive functions for the collection under direct observation of an employee when use of alcohol or a controlled substance in violation of there are unexplained irregularities in the test results law or government regulation. Post-accident testing is and if the drug test is a return-to-duty test or a follow- mandatory for any fatal accident involving public transportation. FTA implements 5331 through its regulation on Prevention of Alcohol Misuse and Prohibited Drug Use This section also requires compliance with drug-free workplace in Transit Operations.54 These requirements apply to requirements, which do not directly mandate drug testing. employers that receive financial assistance from FTA 56 Id. at 60. See ICF INTERNATIONAL, FMCSA REGULATIONS and to contractors of those employers. FTA's Master AS THEY APPLY TO FTA SECTION 5310/5311 PROVIDERS: A Grant Agreement requires that grantees agree to com- HANDBOOK (National Cooperative Highway Research Program, 55 ply with Part 655. The Master Grant Agreement also Research Results Digest 311, 2006), http://onlinepubs.trb.org /onlinepubs/nchrp/nchrp_rrd_311.pdf. 57 49 C.F.R. 382.103(d)(1). The requirements of 49 C.F.R. pt. 382 and pt. 655 are substantially similar, but not identical. 49 For a more extensive discussion of these requirements, see See FTA and FMCSA D&A Regulatory Comparison, ROBERT A. HIRSCH, DRUG AND ALCOHOL TESTING--A SURVEY http://transit-safety.volpe.dot.gov/publications/substance/ OF LABOR-MANAGEMENT RELATIONS 46 (National Cooperative ImplementationGuidelines/Revisions/Chapter_2.pdf. Highway Research Program, Transit Cooperative Research 58 Federal Transit Administration, Implementation Guide- Program, Legal Research Digest No. 16, 2001). lines for Drug and Alcohol Regulations in Mass Transit, Nov. 50 102 Pub. L. No. 143, 6, 105 Stat. 952, Oct. 28, 1991. 2003, at 23, http://transit-safety.fta.dot.gov/publications/ 51 49 C.F.R. pt. 40, www.access.gpo.gov/nara/cfr/waisidx_ substance/ImplementationGuidelines/Implementation 09/49cfr40_09.html. Guidelines_rev_11_2003.pdf. 52 59 49 C.F.R. pt. 382, Controlled substances and alcohol use 49 C.F.R. 40.11, What are the general responsibilities of and testing, www.access.gpo.gov/nara/cfr/waisidx_09/ employers under this regulation? 49cfr382_09.html; 49 C.F.R. pt. 655, Prevention of alcohol mis- http://edocket.access.gpo.gov/cfr_2008/octqtr/pdf/49cfr40.5.pdf. use and prohibited drug use in transit operations, 60 49 C.F.R. 40.23, What actions do employers take after www.access.gpo.gov/nara/cfr/waisidx_09/49cfr655_09.html. receiving verified test results?, http://edocket.access.gpo.gov/ 53 49 C.F.R. pt. 219, Control of alcohol and drug use. cfr_2008/octqtr/pdf/49cfr40.23.pdf. www.access.gpo.gov/nara/cfr/waisidx_08/49cfrv4_08.html. 61 49 C.F.R. 40.25, Must an employer check on the drug 54 49 C.F.R. pt. 655. and alcohol testing record of employees it is intending to use to 55 FTA Master Agreement MA(16), 10-1-2009, 32. Sub- perform safety-sensitive duties?, http://edocket.access.gpo. stance Abuse, at 59, www.fta.dot.gov/documents/16-Master.pdf. gov/cfr_2008/octqtr/pdf/49cfr40.25.pdf.

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11 up test.62 The USDOT regulation leaves to the modal ees, certain of the FMCSA requirements differ from administration's discretion whether to allow an em- corollary requirements under the FTA requirement. For ployee's supervisor to act as a collection agent if no example, the thresholds for testing employees other other collector is available; FTA's regulation does not than the driver in a fatal accident and for testing em- allow such collection.63 ployees in a nonfatal accident are less rigorous under In 2008, USDOT revised its regulation to make the FMSCA regulation. In addition, the FMCSA does specimen validity testing mandatory within the regu- not provide for suspension of federal funding in the lated transportation agencies.64 As part of that revision, event of noncompliance with the regulation. USDOT included the requirement for direct observation for return-to-duty and follow-up tests noted above. After 3. FRA Regulation extending the effective date of the final rule and re- The FRA regulation applies to railroads that operate questing comments on the requirement for direct obser- rolling equipment on standard gauge track that is part vation for return-to-duty and follow-up tests,65 USDOT of the general railroad system of transportation and issued a notice responding to comments and providing railroads that provide commuter or other short-haul an effective date of November 1, 2008.66 However, the rail passenger service in a metropolitan or suburban District of Columbia Circuit Court of Appeals stayed area.69 Unlike the FMCSA regulation, the FRA regula- the effective date while it reviewed a constitutional tion does not explicitly except agencies that are subject challenge to the case, at which point USDOT returned to FTA's drug and alcohol testing regulation. However, to the previous requirement.67 Following the court's de- transit agencies that adhere to the FTA's drug policy cision upholding the regulatory change, USDOT rein- may petition the FRA for a waiver from the require- stated the direct observation requirement.68 ments of Part 219.70 The regulation requires mandatory hearing procedures that must be followed if an em- 2. FMCSA Regulation ployee contests the validity of test results.71 The regula- The FMCSA regulation on controlled substances and tion requires testing under the following circumstances: alcohol use and testing applies to all persons subject to the CDL requirements of 49 C.F.R. Part 383, except, as Preemployment (including transfer to a safety- noted above, employers and drivers subject to FTA's sensitive position within the organization) (alcohol test- regulation. Since the FMCSA regulation is focused on ing not required). the CDL holder rather than a broader group of employ- Reasonable suspicion (mandatory based on "spe- cific, contemporaneous, articulable observations con- cerning the appearance, behavior, speech, or body odors 62 49 C.F.R. 40.67, When and how is a directly observed of the employee;"72 reasonable-cause testing authorized collection conducted?, http://edocket.access.gpo.gov/cfr_2008/ but not required under specified circumstances73). octqtr/pdf/49cfr40.67.pdf. Random (program must be approved by FRA). 63 49 C.F.R. 655.53, Supervisor acting as collection site Post-accident (based on good-faith determination of personnel. on-scene railroad representative that incident falls 64 U.S. Department of Transportation, Office of the Secre- within parameters for required testing). 74 tary, Final Rule, 49 C.F.R. pt. 40, Procedures for Transporta- Return-to-duty/follow-up (periodic). tion Workplace Drug and Alcohol Testing Programs, 73 Fed. Reg. 35961, June 25, 2008, http://edocket.access.gpo.gov/2008/ pdf/E8-14218.pdf. 65 4. FTA Regulation U.S. Department of Transportation, Office of the Secre- tary, Change in effective date; request for comments, 49 C.F.R. FTA's regulation governing drug and alcohol test- 75 pt. 40, Procedures for Transportation Workplace Drug and ing requires testing of safety-sensitive employees in Alcohol Testing Programs, 73 Fed. Reg. 50223, Aug. 26, 2008, five circumstances: http://edocket.access.gpo.gov/2008/pdf/E8-19816.pdf. 66 U.S. Department of Transportation, Office of the Secre- Preemployment (including transfer to a safety- tary, Response to comments, 49 C.F.R. pt. 40, Procedures for sensitive position within the organization) (alcohol test- Transportation Workplace Drug and Alcohol Testing Programs, ing not required). 73 Fed. Reg. 62910, Oct. 22, 2008, Reasonable suspicion. http://edocket.access.gpo.gov/2008/pdf/E8-25102.pdf. 67 U.S. Department of Transportation, Office of the Secre- 69 tary, Final Rule, 49 C.F.R. pt. 40, Procedures for Transporta- 49 C.F.R. 219.3(a). Exceptions are set forth in tion Workplace Drug and Alcohol Testing Programs, 73 Fed. 219.3(b) and 219.3(c). Reg. 70283, Nov. 20, 2008, 70 http://edocket.access.gpo.gov/2003/pdf/03-24744.pdf; http://edocket.access.gpo.gov/2008/pdf/E8-27617.pdf. http://edocket.access.gpo.gov/2007/pdf/E7-15140.pdf. 68 U.S. Department of Transportation, Office of the Secre- 71 49 C.F.R. 219.107(d). tary, Final Rule, 49 C.F.R. pt. 40, Procedures for Transporta- 72 49 C.F.R. 219.300(a)(1) and (2). tion Workplace Drug and Alcohol Testing Programs, 74 Fed. 73 Reg. 37949, July 30, 2009, http://edocket.access.gpo.gov/2009/ 49 C.F.R. 219.301. 74 pdf/E9-18156.pdf. See BNSF Railway Co. v. Dep't of Transp., 49 C.F.R. 219.201(c)(ii). 75 566 F.3d 200 (D.C. Cir. 2009). 49 C.F.R. pt. 655.

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12 Random. County Metropolitan Transportation Authority (LA Post-accident. Metro) classifies almost 90 job classifications as safety Return-to-duty/follow-up (periodic). sensitive.78 A recipient that fails to establish a drug and alcohol The regulation requires removing any safety- testing program under the FTA regulation may not be sensitive employee who violates the rule (by testing eligible to receive federal financial assistance under positive for illegal drug use, alcohol misuse, or other- Chapter 53 or 23 U.S.C. 103(e)(4). FTA may suspend a wise) from that position and informing the employee of recipient's eligibility for federal funding if the recipient treatment options. The regulation leaves to transit fails to certify compliance with the regulatory require- agency policy whether to terminate the employee or ments. Misrepresentations concerning drug and alcohol retain the employee subject to treatment. As discussed testing may subject a recipient to criminal sanctions below, such decisions must be consistent with state law and fines under 18 U.S.C. 1001.79 and collective bargaining agreements. Grant recipients are required to retain records as The regulation defines "safety sensitive" according to specified under Subpart H of the regulation, ranging duties, rather than positions. The following functions from 1 year for negative test results to 5 years for posi- are defined as safety-sensitive:76 Operating a revenue service vehicle, including Journey Mechanic (Includes Component Rebuild when not in revenue service. and Automotive Mechanics). Operating a nonrevenue service vehicle, when re- Lead Journey Body Person. quired to be operated by a holder of a CDL. Lead Journey Mechanic (Includes Component Re- Controlling dispatch or movement of a revenue build and Automotive Mechanics). service vehicle. Lead Vehicle Service Attendance. Maintaining (including repairs, overhaul, and re- Maintenance Shop Manager. building) a revenue service vehicle or equipment used Manager of Facilities Shop/Maintenance. in revenue service. This section does not apply to the Manager of Maintenance. following: an employer who receives funding under 49 Vehicle Service Attendant. U.S.C. 5307 or 5309, is in an area less than 200,000 Vehicle Service Worker. in population, and contracts out such services; or an Transportation employer who receives funding under 49 U.S.C. 5311 Assistant Transportation Manager. and contracts out such services. Carrying a firearm for security purposes. Chief Operations Officer. Coach Operator (full-time, part-time, and trainee). Transit agencies are responsible for determining Contract Services Coordinator. which of their positions are subject to the regulation Director of Transportation. based on the definition of "safety-sensitive functions." Dispatcher. For example, Community Transit in Everett, Washing- Manager of Contracted Services. ton, has included customer and community relations Manager of Transportation. and training positions, as well as several management Manager of Transportation Administration. positions in maintenance and transportation, in its des- Operations Supervisor. ignated safety-sensitive positions.77 The Los Angeles Security Officer. Training 76 Instructor. 49 C.F.R. 655.4. 77 Supervisor of Training. The specific safety-sensitive positions are: Manager Risk and Training. Customer and Community Relations Other Director of Marketing and TMS. Schedule Analyst. Education Coordinator. Community Transit's Drug and Alcohol Abuse Policy, App. Manager of Transportation Management Services. A, www.commtrans.org/About/Documents/Purchasing/RFP% Supervisor of Vanpool. 20%2332-08%20Exhibit%20D.pdf (accessed Oct. 28, 2009). Cf., Vanpool Coordinator. Clemson Area Transit: all drivers, all mechanics; all dispatch- Maintenance ers/schedulers; transportation director; maintenance director. Apprentice Body Person. Clemson Area Transit Substance Use, Abuse and Testing Pol- icy, Sept. 4, 2006, www.cityofclemson.org/files/090406Item Apprentice Mechanic. DrugAlcoholPolicy.pdf (accessed Oct. 28, 2009). Assistant Facilities and Automotive. 78 Metro Alcohol-and-Drug-Free Work Environment Policy Maintenance Manager. (HR 4-2), App. A. Assistant Maintenance Shop Manager. 79 49 C.F.R. 655.82, Compliance as a condition of financial Director of Maintenance. assistance, http://edocket.access.gpo.gov/cfr_2008/octqtr/pdf/ Journey Body Person. 49cfr655.82.pdf.

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13 tive test results. Records must be retained in a secure The court also rejected the plaintiffs' argument that the location with controlled access. MBTA should be precluded from accepting federal funds, because accepting funding leads to a conflict with 5. State Testing Requirements state law concerning drug testing. Finally, the court In a 2001 survey, 35 transportation carriers sur- rejected the argument that the MBTA's testing policy veyed on drug and alcohol testing practices responded was illegal because it exceeded the federal require- that they were subject to state testing laws, identifying ments, holding that so long as the transit agency's test- the following states: Arizona, California, Connecticut, ing requirements did not conflict with FTA's testing Florida, Iowa, Louisiana, Maine, Maryland, Minnesota, protocol, they violate neither state or federal law. New York, Ohio, Pennsylvania, South Carolina, and Collective bargaining.--The Southwest Ohio Re- Wisconsin. A number of state and local governments gional Transit Authority (SORTA) implemented the have mandatory requirements that must be followed in federal drug testing requirements with a zero tolerance conducting drug testing.80 FMCSA and FTA testing re- policy, which required terminating any employee who quirements preempt state and local requirements if it is tested positive for use of a controlled substance. How- not possible to comply with both the federal and ever, SORTA had negotiated a collective bargaining state/local requirements or if the state or local require- agreement with the Amalgamated Transit Union pro- ments pose an obstacle to executing the federal re- viding that discharge, suspension, or other disciplinary quirement.81 FRA testing requirements preempt state action could only be with sufficient cause. The union and local requirements "covering the same subject mat- contested the automatic termination of an employee ter" as the FRA regulation, except for a state or local who had tested positive for use of a controlled sub- law "directed at a local hazard that is consistent with stance. The arbitration panel determined that the [Part 219] and that does not impose an undue burden automatic discharge requirement conflicted with, and on interstate commerce."82 therefore violated, the collective bargaining agreement. State law may also specify the notice that must be An Ohio appellate court reversed, holding that reinstat- provided to employees on test results and restrict the ing the employee violated public policy. disciplinary action that a transit agency may take if an The Ohio Supreme Court found that SORTA did not 83 employee tests positive. Failure to comply may result have the right to unilaterally adopt an automatic ter- in damages and/or injunctive relief.84 mination as a sanction for testing positive because that would conflict with the negotiated sufficient-cause re- quirement, which would undermine the collective bar- 6. Judicial Review of Drug and Alcohol Testing gaining process. Accordingly the court held that the Regulations (Preemption and Collective Bargaining) finding of the arbitration panel was based on the suffi- cient-cause standard, and so drew its essence from the Preemption.--The First Circuit Court of Appeals re- collective bargaining agreement and was not arbitrary jected a preemption challenge to the FTA drug testing or capricious. The court also found that Ohio law did requirements, holding that where Congress places con- not preclude providing a second chance to someone who ditions on receipt of federal dollars and an entity ac- had tested positive for a controlled substance. The court cepts federal funding, the Supremacy Clause requires reviewed Eastern Associated Coal Corp. v. United Mine that the federal requirements take precedence over con- 85 Workers of Am., Dist. 17,86 in which the U.S. Supreme flicting local law, whether statutory or constitutional. Court reviewed the Omnibus Testing Act and deter- 80 mined that it did not establish public policy against HIRSCH, supra note 49, at 36. 81 reinstating employees who had tested positive for use of 49 C.F.R. 382.109, 655.6. 82 a controlled substance. Relying on the facts that Ohio 49 C.F.R. 219.13. had adopted the requirements of Part 382 and had no 83 E.g., Minnesota: MINN. STAT. 181.953, other law or legal precedent requiring termination, the www.revisor.mn.gov/statutes/?id=181.953 (notice), MINN. STAT. court held that Ohio had "no dominant and well-defined 181.953, www.revisor.mn.gov/statutes/?id=181.953 (prohibits public policy that renders unlawful an arbitration employer from taking disciplinary action based on preliminary award reinstating a safety-sensitive employee who was screening test that has not been confirmed, requires employer to afford employees who test positive opportunity to participate terminated for testing positive for a controlled sub- in drug or alcohol counseling or rehabilitation program before stance, assuming that the award is otherwise reason- discharging based on first positive (confirmed) test result); Montana: Montana Workforce Drug and Alcohol Testing Act, MONT. CODE ANN. 39-2-205 through 39-2-211, transit agency policy implements federal mandate of random http://data.opi.mt.gov/bills/mca_toc/39_2_2.htm (sets criteria drug testing of safety-sensitive employees of federal mass for testing programs; affords employees right of rebuttal; limits transportation grant recipients; differences from federal law adverse actions). permissible so long as there is no conflict). See also Keaveney v. 84 E.g., MINN. STAT. 181.956, Town of Brookline, 937 F. Supp. 975 (D. Mass. 1996) (Federal www.revisor.mn.gov/statutes/?id=181.956. CDL regulations requiring drug and alcohol testing preempt 85 O'Brien v. Mass. Bay Transp. Auth., 162 F.3d 40 (1st Cir. Massachusetts Declaration of Rights, Massachusetts Privacy 1998). See Byrne v. Mass. Bay Transp. Auth., 196 F. Supp. 2d Act, and Massachusetts Civil Rights Statutes). 86 77 (D. Mass. 2002) (holding state claim is preempted to extent 531 U.S. 57, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000).