new fra drug and alcohol overview effective june 12, 2017

Brotherhood of Maintenance of Way Employes Division

Overview

Drug and Alcohol Testing for MOW Employees

49 CFR Part 219

10/5/2016 Allied Federation Convention 1

Drug and Alcohol Testing; MOW Employees

•NPRM Published July 28, 2014

•BMWED Filed Comments to the Docket November 25, 2014

•Final Rule published June 10, 2016

•Effective date of Final Rule: June 12, 2017



Who is covered?

Roadway workers as defined in 214.7: “Roadway worker means any employee of a railroad, or of a contractor to a railroad, whose duties include inspection, construction, maintenance or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway maintenance machinery on or near the track or with the potential to foul a track, and flagmen and watchmen/lookouts as defined in this section” (214.7).

Employee “means any individual (including a volunteer or a probationary employee) performing activities for a railroad or a contractor to a railroad” (219.5).


Drug and Alcohol Testing; MOW EmployeesEffective June 12, 2017, MOW employees will be subject to all part 219

testing:

• Random Testing

• Reasonable Cause Testing

• Reasonable Suspicion Testing

• Pre-employment Testing (grandfathered for existing employees)

• Return to Duty Testing

• Follow-up Testing (return to work after positive test)

• Post-Fatality Testing

• Post-Accident Toxicology (PAT) Testing


Federal DOT 5 panel drug test: Marijuana, Cocaine, PCP, Opiates, Amphetamines, plus Alcohol:

• Random Testing

• Reasonable Cause Testing

• Reasonable Suspicion Testing

• Pre-employment Testing (grandfathered for existing employees)

• Post-Fatality Testing

• Return to Duty Testing

• Follow-up Testing (return to work after positive test)

• NOTE: Nothing prevents RRs from testing for other substances under their own non-DOT company authority

PAT Test includes 5 panel drug test, Alcohol testing, and other drugs including Ecstasy, MDA (molly), Benzodiazepines, Synthetic Opioids, OTC* Drugs, and other substances:

• Post-Accident Toxicology (PAT) Testing

*Certain OTC Drugs are tested for by FRA in PAT tests for research purposes only; OTC results not reported to railroad as a positive test.



Random Testing:

• MOW Employees will be tested at a rate*of 50% for drugs and 25% for alcohol.

• Preponderance of duty standard will be applied to determine which MOW employees are in the FRA pool, and which MOW employees are in the FMCSA pool.

• MOW Employees will be assigned to one pool or the other; not both.

*Random testing rate may be lowered in subsequent years if positive test results for MOW fall below threshold.



Reasonable Cause Testing

Rule violations such as:

• Non-compliance with train order, track permit, track warrant, etc.;

• Occupancy of segment of track without authority;

• Failure to clear track to permit opposing movements;

• Moving across grade crossing without authorization;

• Passing an absolute restrictive signal without authority;

• Operating at excessive speed;

• Alignment of switches in violation of RR operating rules;



Reasonable Cause Testing (continued)


• Failure to restore and secure main line switch;

• Failure to apply brakes or stop short of derail;

• Entering a crossover before both switches are aligned for movement;

• Failure to provide point protection;

• Interference with normal functioning of grade crossing signal system; including failure to provide alternative methods of maintaining safety for trains and highway users while performing work on a crossing device or on track or other structure.



Reasonable Cause Testing (continued)


• Failure of Machine Operator that results in a collision with men or equipment;

• Failure of RWIC to notify all affected employees when releasing work limits;

• Failure of a Flagman or Watchman/lookout to notify employees of approaching train or on-track equipment;

• Failure to ascertain that on-track safety has been established before fouling;

• Improper use of Individual Train Detection (ITD) in a manual interlocking or control point.



Reasonable Suspicion Testing

• Regulated employees (HOS and MOW) must submit to Reasonable Suspicion Testing if RR believes, through “specific, contemporaneous, articulable observations,” that the employee exhibits “signs and symptoms” of drug or alcohol use.

• With respect to alcohol; a trained RR supervisor makes the observation of signs and symptoms.

• With respect to drugs; two trained RR supervisors (at least one on-site) makes the observations of signs and symptoms.



Pre-employment Testing

• Pre-employment testing of all new hires prior to performing “regulated service” (HOS or MOW).

• Included both RR employees and contractor/subcontractor employees.

• Does not apply to MOW employees who were performing duties for a railroad before June 12, 2017 (Existing MOW employees grandfathered)



Return to Duty and Follow-up Testing

• Return to duty testing required if employee who tested positive or had a non-negative test for drugs or alcohol is being returned to service.

• A minimum of 6 negative (follow up) tests in the first 12 months of return to service required.

• RR’s Substance Abuse Professional (SAP) may require additional testing above the DOT minimum.

• Return to duty and follow-up testing subject to Direct Observation testing if being conducted after a non-negative test.



Post-fatality Testing

• Testing of the remains of an on-duty employee (as defined in

§ 219.5) who is fatally injured in a qualifying event described in § 219.201

is required, regardless of fault, if the employee dies within 12 hours of the

qualifying event as a result of such qualifying event.

• Post-fatality testing will apply to railroad employees, contractors, subcontractors, and volunteers.



Post-Accident Toxicological (PAT) Testing

• PAT Testing specific to FRA and not governed under DOT part 40;

• PAT Testing requires the taking of both blood and urine under FRA authority;

• PAT Testing must take place in hospital or doctor’s office.



Post-Accident Toxicological (PAT) Testing

PAT Testing is required under the following events (as defined in part 219):

• Major Train Accident

• Impact Accident (included “Human-factor highway grade crossing accident/incident)

• Fatal train incidents

• Passenger train accidents


Drug and Alcohol Testing; MOW EmployeesPost-Accident Toxicological (PAT) Testing

Human-factor highway grade crossing accident/incident involving:• Interference with grade crossing signal system in testing or otherwise without

first taking measures to protect highway users dependent on the system;

• A regulated employee (HOS & MOW) performing, or who should have been performing duties of an appropriately equipped flagger;

• A fatality to any regulated employee performing duties for a railroad, regardless of fault;

• A regulated employee who violates an FRA Rule or RR Operating Rule and whose actions may have played a role in the cause or severity of the accident/incident.• Regulated employees exempted from PAT HF testing if accident/incident excludes bullet

items above or where cause/severity is solely attributed to nature causes (Act of God).



Consequences of a Refusal to Test

• An Regulated Employee who refuses to provide breath or body fluid specimens when required by part 219 will be disqualified from performing regulated service for a period of nine (9) months.

• A Regulated Employee who provides an adulterated or substituted specimen is deemed to have refused to provide a specimen and must be disqualified from performing regulated service for a period of nine (9) months.

• Disqualification (withdrawal) notice must be in writing.

• The nine (9) month withdrawal does not limit RR from imposing additional sanctions.

• Upon expiration of the nine (9) month withdrawal, a RR may permit employee to return to regulated service provided they comply with Substance Abuse Professional’s evaluation/treatment, pass the Return to Duty Test, and subject to Follow-up Testing requirements.


Drug and Alcohol Testing; MOW EmployeesContractors and D&A Testing (3 Options)

1. Contractor establishes own part 219 program and provides documentation to the RR with its compliance with 219.

2. Contractor joins a consortium to administer its part 219 program.

3. Contractor employees performing regulated service for a railroad are incorporated into Railroad’s part 219 program.

• FRA will require RRs to maintain contractor’s documentation for auditing purposes and hold railroad responsible.

• If the contractor’s documentation or program contains a deficiency or violation that the railroad could not have reasonably detected, FRA may use its discretion to take action solely against the contactor.



Small Railroad Exemption

• Railroads with less than 15 Covered Service (HOS) employees (including covered service contractors) and no joint operations are exempt from certain D&A testing requirements.

• To ensure that it does not encourage the hiring of MOW contractors in lieu of MOW employees, the Final Rule excludes both contractor employees and MOW employees for the purposes of employee count to determine whether a railroad qualifies for the small railroad exemption.



Railroad Provided Educational Materials to MOW Employees

• Railroads are required to provide (individually distribute) educational materials to all existing MOW employees in hard copy.

• Railroads are also required to individually distribute educational materials to new hires for a three year period following the effective date (June 12, 2017) of the rule.

• After the three year period, educational materials can be made available to MOW in the same manner as other Regulated Employees, i.e., posting them at the designated reporting place, on a employee web-site, or any other method that provide adequate access to such materials.



Referral Programs

A railroad must adopt, publish, and implement the following programs:

• Self-referral program (A program that provides an employee an opportunity to obtain counseling and treatment before the use/abuse manifests into a violation of part 219.

• Co-worker referral program (A program designed to encourage co-worker participation in preventing violations of part 219.


Drug and Alcohol Testing; MOW EmployeesReferral Programs

A railroad may adopt, publish and implement:

• Non-peer referral program (A program designed to encourage non-peer participation in preventing violations of part 219.)

• Alternative Program(s) (An alternative program that meets the general requirements of Referral Programs under 219.1001.• Alternative Programs must have the written concurrence of the recognized Labor

Organization.• Nothing restricts Alternative Programs that afford more favorable conditions to Regulated

Employees, consistent with RR’s responsibility to prevent violations.• Alternative Program must be approved by FRA D&A Program Manager to assure program

meets objective of 219.1001 (Referral Programs) and does not circumvent Federal requirements.


Drug and Alcohol Testing; MOW EmployeesPresentation Reminders

• This presentation is only a summary of the Final Rule, is not all inclusive, and may include inadvertent errors or omissions.

• For additional details and clarifications, please refer to the Final Rule as published in the Federal Register on June 10, 2016 (Docket No. FRA-2009-0039, Notice No. 3), part 219 and part 40.

• Members with questions or concerns, and anyone possibly needing assistance with substance abuse or a positive test, are encouraged to consult their General Chairman or another System Officer without delay.

• The Department of Safety will remain available to assist System and ND Officers in understanding the requirements of this new regulation and its impact on BMWED members.

Any Questions? Thank you!


new fra drug and alcohol overview effective june 12, 2017

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