Drug and Alcohol Testing Requirements for Head Start Drivers

ACYF Administration on Children, Youth and Families	U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families
	1. Log No. ACYF-IM-HS-95-37	2. Issuance Date: 12/12/95
	3. Originating Office: Head Start Bureau
	4. Key Word: Transportation

INFORMATION MEMORANDUM [See Attachments at the bottom]

TO: Head Start Grantees and Delegate Agencies

SUBJECT: Drug and Alcohol Testing Requirements for Head Start Drivers

LEGAL AND RELATED REFERENCES: 49 CFR 382--Controlled Substances and Alcohol Use and Testing Department of Transportation/ Federal Highway Administration

INFORMATION:

On February 14, 1994, the Department of Transportation, Federal Highway Administration issued regulations governing employer requirements for drug and alcohol testing of holders of Commercial Driver's License. These regulations will impact on all Head Start programs which provide for the transportation of children. It is, therefore, very important that each affected Head Start program familiarize itself with the new regulations and begin to implement all relevant requirements. We have attached a summary of these regulations, prepared by the Community Transportation Association of America (CTAA), to assist you in this process.

If you need assistance in setting up a drug and alcohol testing program, we recommend that you first contact the local Board of Education, local public or private transit agency, or similar entity to determine if a program (ideally, a consortium of several agencies) is already in place and whether or not you can participate. If such a program is not available and you are unable to obtain assistance at the local level in setting up your own program, you should contact the State Director of Pupil Transportation for guidance on who to contact to obtain assistance in your State. A list of the State Directors is included as Attachment 2. Also, assistance on the broad range of transportation topics, including how to set up a drug and alcohol testing program, can be obtained through CTAA's National Resource Center Hotline (Attachment 1).

/S/
Helen H. Taylor
Associate Commissioner
Head Start Bureau

ATTACHMENTS: Summary of Drug and Alcohol Testing Requirements and List of State Directors of Pupil Transportation

cc: Regional Administrators, ACF, Regions I-X American Indian and Migrant Programs Branches

ATTACHMENT 1

STATE DIRECTORS OF PUPIL TRANSPORTATION

Alabama
Billy Crews, Coordinator
Pupil Transportation
Department of Education
50 North Ripley Street
Montgomery, AL 36130-3901
Phone: (334) 242-9730

Alaska
Bill Wright, Administrator
Pupil Transportation
Department of Education
801 W l0th St., Suite 200
Juneau, AK 99801-1894
Phone: (907) 465-8687

Arizona
Sgt. William Melander
Transportation Supervisor
Department of Public Safety
P.O. Box 6638
Phoenix, AZ 85007
Phone: (602) 223-2646

Arkansas
Spence Holder, Coordinator
School Transportation
Department of Education
#4 Capitol mall, Room 204-A
Little Rock, AR 72201
Phone: (501) 682-4264

California
Ron Kinney, Supervisor
School Transportation
Department of Education
560 J Street, Suite 170
Sacramento, CA 95814
Phone: (919) 322-4879

Colorado
Bruce Little
Transportation Consultant
Department of Education
201 East Colfax Ave., Room 210
Denver, CO 80203
Phone: (303) 866-6661

Connecticut
Carlton Csiki, Chief
Commercial Vehicles Safety
Division
60 State Street
Wethersfield, CT 06161
Phone: (203) 566-6569

Delaware
Harlan "Ted" Tull, Supervisor
Pupil Transportation
Dept. of Public Instruction
P.O. Box 1402
Dover, DE 19903
Phone: (302) 739-4696

District of Columbia
Ira E. Lampkin
Transportation Officer
DC Public Schools'
Transportation Branch
2115 5th Street, NE
Washington, DC 20002
Phone: (202) 576-6305

Florida
Charles F. Hood, Director
School Transportation
Department of Education
Suite 824, Florida Ed. Ctr.
Tallahassee, FL 32399-0400
Phone: (904) 488-4405

Georgia
Sam McCullough, Director
Pupil Transportation
Department of Education
1670 Twin Towers East
Atlanta, GA 30344-5050
Phone: (404) 656-2467

Hawaii
George Okano, Branch Chief
Student Transportation Program
Department of Education
729-B Kakoi Street
Honolulu, HI 96819
Phone: (808) 831-6739

Idaho
Sarah Stobaugh, Coordinator
Pupil Transportation
Department of Education
Len B. Jordon Office Building
Boise, ID 83720
Phone: (208) 334-2203

Illinois
Marcia Sailsbury
Transportation Supervisor
State Board of Education
100 N. First Street
Springfield, IL 63777
Phone: (217) 782-5256

Indiana
Pete Baxter, Director
Div. of School Traffic Safety
Department of Education
State House Room 229
Indianapolis, IN 46204
Phone: (317) 232-0890

Iowa
Terry Voy, Consultant
School Transportation
Department of Education
Grimes State Office Building
Des Moines, IA 50319
Phone: (515) 281-4749

Kansas
Larry E. Bluthardt, Supervisor
School Bus Safety
State Board of Education
120 SE 10 Street
Topeka, KS 66612-1182
Phone: (913) 296-4567

Kentucky
Mike Roscoe, Director
Pupil Transportation
Department of Education
1506 Capital Plaza Tower
500 Mero Street
Frankfort, KY 40601
Phone: (502) 564-4718

Louisiana
Eddie L. Stephens, Supervisor
School Transportation
Department of Education
P.O. Box 94064
Baton Rouge, LA 70804
Phone: (504) 342-8704

Maine
William K. Millar
Director of Transportation
Department of Education
State House Station #23
Augusta, ME 04333
Phone: (207) 287-5903

Maryland
Donald Lafond, Chief
Pupil Transportation
Department of Education
200 W. Baltimore Street
Baltimore, MD 21201
Phone: (410) 767-0209

Massachusetts
James Anderson
Education Specialist
Department of Education
350 Main Street
Malden, MA 02148
Phone: (617) 388-3300

Michigan
Roger Lynas, Director
School Management
Department of Education
P.O. Box 30008
Lansing, MI 48909
Phone: (517) 373-4013

Minnesota
Bob Fischer
Pupil Trans. Specialist
School Transportation and
Facilities
Department of Education
518 Capitol Square
550 Cedar Street
St. Paul, MN 55101
Phone: (612) 296-9610

Mississippi
Steve Williamson
Director of Transportation
Department of Education
P.O. Box 771
Jackson, MS 39205
Phone: (601) 359-1028

Missouri
Ron Noirfalise, Director
Pupil Transportation
Dept. of Elem. & Sec. Ed.
P.O. Box 480
Jefferson City, MO 35102-0480
Phone: (314) 751-2626

Montana
David C. Huff
Pupil Transportation Safety
Office of Public Instruction
State Capitol
Helena, MT 59620-1001
Phone: (406) 444-4396

Nebraska
Duane Smith, Director
Pupil Transportation
Department of Education
301 Centennial Mall South
Lincoln, NE 68509
Phone: (402) 471-2740

Nevada
Douglas M I . Stoker, Director
Pupil Transportation
Department of Education
1850 East Sahara, Suite 200
Las Vegas, NV 89158
Phone: (702) 486-6455

New Hampshire
Bethia J. Reed, Supervisor
Pupil Transportation
Department of Safety
10 Hazen Drive
Concord, NH 03305
Phone: (603) 271-1999

New Jersey
Linda Wells, Director
Bureau of Pupil Transportation
Department of Education
225 W. State Street, CN500
Trenton, NJ 08625-0500
Phone: (609) 984-5757

New Mexico
Carolyn Luck, Director
Transportation Unit
Education Building
Santa Fe, NM 87501-2786
Phone: (505) 827-6640

New York
Associate of School Bus
Management
Department of Education
Room 507 West Hall
Albany, NY 12234
Phone: (518) 474-2977

North Carolina
Derek Graham, Chief
Transportation Section
Dept. of Public Instruction
301 N. Wilmington Street
Raleigh, NC 27601-2825
Phone: (919) 715-1948

North Dakota
Tom Decker, Director
School Bus Transportation
Dept. of Public Instruction
State Capital
Bismark, ND 58505
Phone: (701) 328-2267

Ohio
Robert Croye, Supervisor
Pupil Transportation
Department of Education
65 South Front Street
Room 815
Columbus, OH 43215-4183
Phone: (614) 466-4230

Oklahoma
Randy McLerran
Transportation Director
Department of Education
2500 N. Lincoln Boulevard
Oklahoma City, OK 73105-4599
Phone: (405) 521-3472

Oregon
Al Shannon, Director
Pupil Transportation
Department of Education
255 Capital Street, NE
Salem, OR 97310-0203
Phone: (503) 373-0709

Pennsylvania
Pamela Thomas, Manager
Special Driver Program
Department of Transportation
P.O. Box 68684
Harrisburg, PA 17106-8684
Phone: (717) 772-2117

Rhode Island
John DiTomasso, Coordinator
School Bus Safety
School Bus Transportation
Registry of Motor Vehicles
286 Main Street
Pawtucket, RI 02860
Phone: (401) 277-2970

South Carolina
Donald Tudor
Senior Executive Assistant
Department of Education
1429 Senate Street, Rm. 512
Columbia, SC 29201
Phone: (803) 734-8244

South Dakota
Dennis Johnston, Director
Pupil Transportation
Division of Education
Kneip Building
700 Govenors Drive
Pierre, SD 57501-2291
Phone: (605) 773-3553

Tennessee
James Abernathy
Exec. Dir. of Accountability
Department of Education
710 James Robertson Pkwy
Gateway Plaza, 5th Floor
Nashville, TN 37243-0375
Phone: (615) 532-4703

Texas
Sam Dixon, Director
School Transportation
Texas Education Agency
1701 N. Congress Avenue
Austin, TX 78701
Phone: (512) 463-9185

Utah
James. P. O'Hara
Pupil Trans. Specialist
Office of Education
250 E. 500 South
Salt Lake, UT 84111
Phone: (801) 538-7666

Vermont
Robert King
Governor's Hwy Safety Office
120 State Street
Montpelier, VT 05602
Phone: (802) 828-2083

Virginia
Dr. Barbara V. Goodman
Asso. Dir., Pupil Trans.
Department of Education
P.O. Box 2120
Richmond, VA 23216-2120
Phone: (804) 225-2037

Washington
Don Carnahan, Director
Pupil Transportation
Dept. of Public Instruction
P.O. Box 47200
Olympia, WA 98504-7200
Phone: (206) 753-0235

West Virginia
Cecil Dolin, Director
School Transportation
Department of Education
Building 6, Rm. B-252
1900 Kanawha Blvd. East
Charleston, WV 25305-0001
Phone: (304) 558-2711

Wisconsin
Kathleen J. Cole, Consultant
School Transportation
Dept. of Public Instruction
P.O. Box 7841
Madison, WI 53707-7841
Phone: (608) 266-2146

Wyoming
Leeds Pickering, Coordinator
School Transportation
Department of Education
Hathaway Building
Cheyenne, WY 82002-0050
Phone: (307) 777-6265

ATTACHMENT 2
DRUG AND ALCOHOL TESTING FOR HUMAN
SERVICES TRANSPORTATION PROVIDERS

As of January 1, 1996, many of the people who drive buses and vans for Head Start programs, senior centers, local governments and other human services agencies must participate in federally mandated drug and alcohol testing programs. The U.S. Department of Transportation's (DOT) drug and alcohol testing rules apply to public transit providers and all other employers whose drivers hold Commercial Drivers Licenses (CDLs).

Background

The DOT began mandating drug testing in 1988. Subsequent legislation, particularly the 1991 Omnibus Transportation Employees Testing Act, combined with more recent court decisions, have expanded the scope of these rules considerably.

The last major revisions of DOT's testing rules were issued in February 1994. These rules expanded DOT testing to include all employers whose drivers are required to hold Commercial Drivers Licenses (CDLs), and almost all providers of public transportation services. Moreover, these rules added alcohol testing to the DOT testing program.

Entities who receive funding from the Federal Transit Administration's (FTA) Section 3, Section 9 or Section 18 public transit funding programs must comply with FTA's drug and alcohol testing rules. All other entities with drivers who operate buses or vans designed to seat 16 or more persons (including the driver) must comply with the Federal Highway Administration's (FHWA) drug and alcohol testing rules. The full text of FHWA's rules is found in Title 49 of the Code of Federal Regulations, at Part 382 of FHWA's Federal Motor Carrier Safety Regulations.

Employers with 50 or more Covered drivers were required to begin implementing FHWAs drug and alcohol testing rules on January 1, 1995. All other employers of drivers required to hold CDLs must begin implementing these rules on January 1, 1996.

This brief focuses on FHWA's testing rules as they apply to human services transportation providers. For more information on FTA's testing rules, the National Transit Resource Center prepared another technical assistance brief, Writing an FTA Drug and Alcohol Policy.

Definitions

To keep this brief readable, the following definitions are used:

Testing refers to the complete program of drug and alcohol testing required by the Federal Highway Administration; references occasionally will be made to other DOT agencies' testing programs.
Driver refers to an individual whose duties require the possession of a valid Commercial Drivers License (CDL).
Employer refers to the entity for whom the driver performs his or her duties; these distinctions apply even if the driver performs duties on a strictly voluntary basis.
Vehicle or commercial motor vehicle refers to any vehicle designed to seat 16 or more passengers, including the driver, or weighing more than 26,000 pounds. It does not matter whether such a vehicle is used for commercial purposes.
The regulations and this brief use of the words must or shall to refer to mandatory requirements; the word should refers to recommended practices that are not mandatory.

	Federal Transit Administration (FTA)	Federal Highway Administration (FHWA)
Affected Employers	Recipients of FTA Section 3, Section 9 or Section 18 funding must comply with FTA's testing rules.	All employers of persons required to hold CDLs must comply with FHWA's testing rules, except FTA Section 3, 9 or 18 grantees.
Covered Employees	All drivers, vehicle maintenance personnel, dispatchers and frontline supervisors must be tested, except (a) volunteer drivers who do not need CDLs and (b) rural third-party maintenance personnel.	All drivers and other personnel whose duties require them to hold a CDL (such as some maintenance personnel) must be tested.
Applicability to Volunteers	Volunteer drivers who do not need CDL's are exempt from testing; all of other volunteers must be tested	All volunteers must be tested.
Post-Accident Testing	FTA requires post-accident testing following an incident that results in loss of life, causes non-fatal injuries requiring emergency medical attention, or causes disabling damage to a vehicle.	FHWA requires post-accident testing following an incident that results in loss of life, or which the driver is cited for a moving traffic violation.
Compliance	FRA requires annual reports on affected employers' testing programs; this is a condition of continued FTA assistance	FHWA randomly surveys FHWA registered motor carriers to monitor compliance with its testing rules.

Who Must Comply?

The cornerstone of FHWAs testing rules is the Commercial Drivers License (CDL). A CDL is required to legally operate a vehicle designed to carry 16 or more persons (including the driver). It should be noted that this 16-person threshold applies to the original design of a vehicle. For example, if a van or small bus originally was designed to seat 16 passengers but had several seats removed to accommodate wheelchair securement locations, its driver must hold a CDL, even though the modified vehicle may have fewer than 16 seats.

If an employer has vehicles which legally can be operated only by CDL-holding drivers, the employer must include these drivers in an FHWA testing program. The only exception is if the employer receives funding through one of three FTA grant programs: Section 3 discretionary capital grants, Section 9 urban transit formula grants, or Section 18 rural transit formula grants. These FTA grantees must comply with FTA's testing rules rather than FHWAs testing rules.

Some important points about the coverage of FHWA's rules must be noted:

FHWAs rules apply to all drivers required to hold CDLS, regardless of whether they are full-time, part-time or volunteer drivers. Nor does it matter whether these employers are public bodies, for-profit companies, nonprofit entities, churches, schools, etc.. There are no exceptions.
FHWA's rules do not call for disciplinary action or termination of employees testing positive for drugs or alcohol.
A driver is not to consume alcohol within the 4 hours preceding driving or performing any other safety-sensitive duty, nor while driving or performing any other safety-sensitive duty.
A driver is not allowed to have alcohol, even in an unopened container, on the vehicle while driving or performing safety-sensitive duties.
Employers are not to allow drivers to drive or perform other safety-sensitive duties if they know of drug or alcohol use in violation of FHWA's rule.

What About Volunteers?

Volunteer drivers are not exempt from FHWA's rules. However, a limited number of volunteer-based organizations may be able to take advantage of an FHWA-sanctioned alternative approach to its rules. If the volunteer-using entity can document that its volunteer drivers are participating satisfactorily in another FHWA testing Program, the entity does not need to include these volunteers in a testing program of its own.

What's a Safety-Sensitive Function?

All the DOT testing rules speak of personnel performing safety-sensitive functions. However, each DOT agency defines these functions differently. Under FHWA rules, the following functions are considered safety-sensitive:

All time spent waiting to be dispatched, unless relieved from duty by the employer;
All time spent by drivers inspecting, servicing, or conditioning a commercial motor vehicle (i.e., a vehicle for which the driver must hold a CDL);
All time spent at the driving controls of a commercial motor vehicle;
All other time spent on or in a commercial motor vehicle;
All time loading or unloading a commercial motor vehicle, supervising or assisting the loading or unloading of such a vehicle or remaining in readiness to operate such a vehicle; and
All time repairing, obtaining assistance or remaining in attendance on a disabled vehicle.

Unlike other DOT testing rules, FHWA's rules apply only to drivers, not to maintenance personnel, dispatchers, supervisors or any other personnel, unless these people are required to operate vehicles for which possession of a CDL is necessary.

Types of Testing

Drug testing is required in six situations: (1) pre-employment or pre-duty, (2) reasonable suspicion, (3) post-accident, (4) random, (5) return-to-duty, and (6) follow-up testing. The same situations apply to alcohol testing, except that there is no requirement for pre-employment alcohol testing. In each of these cases, alcohol testing is done using a DOT-approved breath testing device. AU drug testing is accomplished through laboratory analysis of properly collected urine samples. Drug testing must screen for marijuana, cocaine, opiates, phencyclidine (PCP) and amphetamines.

Pre-Employment/Pre-Duty Testing

Before a driver can begin employment in a position requiring the possession of a CDL, the driver must pass a pre-employment drug test. Applicants and prospective employees should be informed about pre-employment testing before they pursue employment as a driver. If an employer's current employee is newly assigned to a position requiring the possession of a CDL, this employee must first pass a pre-duty drug test. If a driver has been laid off or otherwise away from the job for more than 30 days, this driver, too, must pass a pre-duty drug test.

Alcohol testing is not part of pre-employment or pre-duty testing. This is the only category in which alcohol testing is not required, a major change from the rules as they Originally were issued in 1994.

The general intent of pre-employment/pre-duty testing is to ensure that professional drivers entering or returning their careers are free of drugs. Therefore, FHWA rules allow an employer to waive the pre-employment testing of a driver who successfully participated in a drug testing program for at least 6 months continuously to within 30 days of the new employment.

Exemptions from Pre-employment Drug Testing

FHWA requires that employers obtain drug and alcohol testing results from applicant drivers' previous employers. An employer can use this information to exempt a new driver from pre-employment drug testing, if all the following conditions are met:

The driver was part of a drug testing program compatible with DOT regulations within the 30 days immediately preceding the new employment;
The driver tested negative for drugs within 6 months of applying for employment with the new employer, or was part of a random testing program during the entire 12 months preceding application for employment with the new employer; and
The new employer can document that no prior employer has knowledge of the driver's violation of any DOT drug use rule within 6 months of applying for employment with the new employer, including that the driver never refused to be tested for drugs or alcohol.

Reasonable Suspicion

When a driver's behavior or performance shows documentable signs of alcohol or drug use, the driver's supervisor must initiate reasonable suspicion testing. Employers must take care not to let reasonable suspicion testing be abused. Supervisors must be trained to recognize behaviors characteristic of alcohol or drug abuse. When a driver is referred to testing under reasonable suspicion, a clear explanation for this referral should be documented. Under no circumstances are supervisors making the "reasonable suspicion" determination to carry out testing themselves. Reasonable suspicion testing must not appear punitive or discriminatory.

Post-Accident Testing

FHWA requires testing after any accident in which there is a loss of life, or if the driver is cited for a moving traffic violation in connection with the accident. These standards are different than the post-accident testing requirements of FTA's rules. Post-accident alcohol testing should be administered within 2 hours of the accident, and must be administered within 8 hours. Post-accident drug testing must be performed within 32 hours of the accident. In situations where post-accident testing is necessary, the driver is prohibited from consuming alcohol for 8 hours following the accident, or until tested. FHWA allows employers to accept results of post-accident tests administered by law enforcement officials, even if these tests are not in full compliance with DOT's testing procedures.

Random Testing

The random testing provisions of FHWA's rules mandate that every year, 25 percent of an employer's drivers will be randomly tested for alcohol, and 50 percent of the drivers randomly tested for drugs. Testing shall be unannounced. Test dates shall be spread throughout the year. Testing shall be performed during hours in which the driver would be driving or performing other safety-sensitive functions, such as inspecting a vehicle, being on-call to begin driving, or attending to a disabled vehicle.

For many smaller employers, the only affordable means to implement random testing is to join with other covered employers in a testing consortium. As is discussed later in this brief, there are some important details to consider when an employer and its drivers are part of a consortium.

Return-to-Duty and Follow-Up Testing

Drivers who have tested positive for drugs or alcohol cannot resume driving or related safety-sensitive functions until they pass a return-to-duty test. The return-to-duty test need only be for the substance whose misuse caused the driver to be removed from service, but FHWA rules allow a return-to-duty test to be performed for both drugs and alcohol if there is reasonable suspicion of other untested drug or alcohol misuse at the time of the return-to duty testing.

In addition to the return-to-duty test, there must be at least six unannounced follow-up tests of a driver who has returned to duty after a positive drug or alcohol test. The follow-up testing must be spread over the 12 months following the driver's return to duty.

Implementation

Before an employer begins testing, a number of things will have to be in place. The employer will need a written policy that must be shared with affected employees, detailing the need for testing the types of tests that will be conducted, the steps to be taken in the event of positive test results, and various employer and employee rights and responsibilities pertaining to the testing program.

If an employer s drivers are covered under a collective bargaining agreement, there may be a need to work with the bargaining unit to ensure that labor contracts will be in compliance with the legal requirement of testing. It may also be necessary for the employer to examine its personnel application and hiring procedures to incorporate the pre-employment testing requirement and to verify testing information from applicants' prior employers.

All staff members who supervise drivers will have to receive at least one hour of training on the recognition of drug and alcohol impairment , so that they can properly make reasonable suspicion determinations. FHWA does not specify the details of this training but the employer must keep records showing that the training requirement was met.

The employer will need to establish a record keeping system. FHWA is very explicit about the records to be kept on file for one-, two- and five-year periods. A few of these required records are: documentation associated with random, reasonable suspicion and post-accident testing; records of supervisor and breath alcohol technician training; annual summaries of testing programs; records of test results; the employer's written drug and alcohol policies; agreements with collection site facilities, laboratories and medical review officers; and laboratory test reports.

Testing Sites and Equipment

The employer will have to establish one or more drug testing sites. There are stringent guidelines for what constitutes a legal specimen collection site for drug testing. Many employers, especially smaller employers, will want to contract with a third party, such as a hospital, clinic, substance abuse treatment center or professional testing firm, for testing site and collection services.

Whether drug testing is performed in-house or contracted out, the employer must make sure that the site will conform to federal guidelines, and that testing site personnel are thoroughly f with FHWA's rules. Even if all testing services are contracted out, it ultimately will be the employer who bears the burden of any errors in the testing process.

Alcohol testing is done using DOT-approved evidential breath testing devices (EBTS). For most employers, this will be an in-house function. The employer will have to acquire one or more EBTs, establish a location for storing them, and will have to identify and train designated alcohol testing personnel in their use. It may be possible for several organizations in one community to share alcohol testing equipment and personnel.

DOT-approved EBTs are not inexpensive. For this reason, DOT's alcohol testing rules allow for alcohol pre-screenings using what are called non-evidential testing devices that measure the alcohol content of either breath or saliva. If a non-evidential test indicates an alcohol concentration of less than 0.02 percent, no additional testing is necessary. Otherwise, a confirmation test using an approved EBT must be performed within 30 minutes.

Contracting for Services

As part of the testing process, the employer must establish a relationship with a federally approved drug testing laboratory and secure the services of a medical review officer (MRO), whose function is to analyze laboratory test results and tested drivers' medical histories to determine whether positive test results are due to the use of prohibited drugs. MRO services can be performed by an individual medical doctor with expertise in substance abuse, or by doctors belonging to third-party MRO contractors. An MRO cannot be an employee of the laboratory performing the drug tests he or she is analyzing.

The employer must secure the services of one or more qualified substance abuse professionals (SAPs). The role of the SAP is to work with drivers who have tested positive for drugs or alcohol and with the employer to determine any needed treatment, rehabilitation or other assistance the driver may need. The SAP is responsible for directing and acting on a driver's return-to-duty and follow-up testing. DOT requires that a SAP be a physician, psychologist, social worker, employee assistance professional or addiction counselor with knowledge of and clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders.

While it is not necessary, many employers will find it prudent and cost-effective to enter into relationships with employee assistance programs (EAPs) or other sources of substance abuse treatment and counseling. The costs of using an EAP or other treatment program may be borne by the driver, the employer, or can be shared.

As can be seen from the above paragraphs, several services will have to be located. Employers may want to collaborate with other transportation providers in their community to locate laboratories, collection sites, MROS, alcohol testing equipment and personnel, SAPS, EAPs and training resources. Additional information and assistance is available from the National Transit Resource Center Hotline (see "Resources," below, for details).

To make random testing viable and affordable, many employers will want to join together in testing consortium. Being part of a testing consortium may also contain the costs of the other components of a testing program. Many states' departments of transportation and state transit associations are establishing testing consortia. There may be a locally based consortium of covered entities in an employer's own community. Some third party testing companies will also help establish testing consortia.

Being part of a consortium should make the testing process easier for both the employer and drivers. There are, however, many issues which consortia must be sure to manage correctly, particularly where random testing is concerned. As with all other third party agreements, the employer must be sure the management of the consortium knows every detail of the testing rules that apply to the employer and its drivers. It is, after all, the employer who will be held accountable for any mistakes made in testing its drivers.

What if an Employee Tests Positive?

If an alcohol test shows an alcohol concentration between 0.02 percent and 0.039 percent, the driver shall be removed immediately from driving or any other safety-sensitive duty for 24 hours. No return-to-duty testing or other action is necessary.

If an alcohol test shows an alcohol concentration of 0.04 percent or greater, the driver shall be removed immediately from driving or any other safety-sensitive duty. The driver shall be referred to a SAP to determine appropriate treatment or other action, and cannot return to duty until passing a return-to-duty alcohol test. Once back on duty, the driver will have to pass at least six follow-up alcohol tests.

If an MRO has determined that a positive drug test is due to drug use in violation of FHWA's rules, the driver shall be removed from driving or any other safety-sensitive duty, and shall be referred to a SAP to determine appropriate treatment or other action. The driver cannot return to duty until passing a return-to-duty drug test. Once back on duty, the driver will have to pass at least six follow-up drug tests.

If an employer's suspicion of a driver's alcohol use includes a determination that the driver is impaired and cannot safely operate a vehicle, the driver shall be removed immediately from driving or any other Insensitive duty until a reasonable suspicion test is performed.

If a driver is cited for driving under the influence of alcohol or other drugs, there are legal penalties, which include a one-year suspension of the driver's CDL, in addition to any actions taken pursuant to FHWA's testing rules.

If an employee refuses to submit to testing, this essentially is considered to be the same as a positive test result.

Employers may establish additional sanctions for violations of their drug and alcohol policies. Any such sanctions, such as disciplinary action or termination, must not contradict FHWA or other rules, and should be detailed in the employer's written drug and alcohol policy.

Testing Consortia

Properly managed, testing consortia can save time, money and aggravation for both employers and drivers. There are, however, a number of special considerations that concern employers who are part of a consortium.

Compliance, record keeping and employee relations are the employer's responsibility, not the consortium's.
The pool of employees tested through a consortium cannot include anyone not required to be tested under a DOT rule.
A consortium can include employees and employers covered under more than one DOT rule, but the consortium must be sure that each employee is selected and tested according to the appropriate agency's rule.
If an employee works concurrently for two or more employers in the same consortium, the consortium is not to divulge to one employer any testing or test result information pertaining to the other employer's testing.

Enforcement and Compliance

FHWA does not have a comprehensive, ongoing mechanism for assuring compliance with its testing rules. Instead, every year, FHWA will randomly survey FHWA-registered motor carriers, collecting aggregate statistics on the outcomes of their drug and alcohol testing programs.

In addition, FHWA may review employers, testing records, either directly by FHWA staff or by state and local law enforcement agencies. This is especially likely in post-accident situations. If FHWA finds an employer operating in violation of these rules, it may assess a fine of up to $10,000.

Conclusion

While this brief provides a thorough review of FHWA's testing requirements, it is impossible in such a limited number of pages to explain every possible nuance, provision or interpretation of applicable regulations. This brief is intended to help, but should not substitute for, a firsthand reading and familiarization of applicable FHWA regulations. Neither the author nor the publishers accept responsibility for an entity's failure to be in compliance with FHWA's or any other federal agency's testing rules as a result of reading this brief.

Some Important Questions and Answers

Q: If an employer, as a matter of policy, requires every one of its employees to hold CDLs, are all the employees therefore required to be covered in a testing program?

A: Many employers, including most Head Start agencies, require all their drivers to have CDLs, regardless of the type of vehicles they drive. However, FHWA's testing rules apply only to those drivers who are required to possess a CDL according to FHWA regulations. The employer may wish to expand its testing program to include all drivers, but is not required to do so.

Q: Is a person who has a valid CDL, but is not employed as a driver, required to participate in a testing program?

A: Persons with CDU must be in a testing program only if they perform duties for which a CDL is required.

Q: What if the state has more stringent requirements for CDL possession than do federal regulations (e.g., requiring the possession of a CDL to drive vans seating fewer than 16 persons)?

A: FHWA's rules apply only to drivers required to hold CDLs under FHWA regulations.

Q: Do FHWA's rules apply to agencies who receive no DOT funding such as senior services funded only through Older Americans Act programs?

A: Except for certain FTA grantees, all employers of drivers who must hold CDLs are required to comply with FHWA's rules, regardless of what federal funding they receive, if any.

Q: What about recipients of the Federal Transit Administration's Section 16 elderly and disabilities portation program?

A: Section 16 grantees with vehicles whose drivers must possess CDLs are subject to FHWA's testing rules. FTA rules apply only to grantees under its Section 3 discretionary capital, Section 9 urban formula, and Section 18 rural formula grant programs. Under no circumstances are any other FTA grantees, including Section 16 recipients, subject to FTA rules.

Q: May an employer go above and beyond FHWA's requirements, such as through periodic tests, screening for additional types of drugs, pre-employment alcohol screening, testing of employees other than drivers, or more stringent consequences than laid out in FHWA's rules?

A: An employer may exceed FHWA's requirements only if it makes clear to its employees which aspects of the employer's testing program are FHWA requirements, and which are required by the employer, and as long as no aspect of such an expanded testing program is in conflict with FHWA's or other DOT rules.

Q: What if an individual works part-time as a bus driver for a transit system and part-time as a driver for an entity covered by FHWA's rules?

A: In such a case, the driver is subject to the full range of FTA rules while on duty for the transit system, and to the full set of FHWA's rules while on duty at the second driving job.

Q: Will the results of an FHWA testing program affect the continuation or eligibility for any federal grants an employer receives?

A: Unlike FTA's testing rule, compliance with FHWA's testing program is not a condition of eligibility for federal funds. Direct recipients of federal funding, though, should be aware of the Drug-Free Workplace Act, under which they are required to keep employees informed of the employer's substance abuse policies, including consequences for the illegal use of drugs, and under which written certification that the employer maintain a workplace free of illegal drugs is required in order to receive federal financial assistance.

Resources

FHWA and other DOT agencies published their most recent rules on drug and alcohol testing m the February 15, 1994, Federal Register . Copies of these rules may be obtained by calling the National Transit Resource Center Hotline at (800) 527-8279. The Resource Center is housed at the Community Transportation Association of America (CTAA), and is sponsored jointly by the U.S. Department of Health and Human Services' Community Transportation Assistance Project and FTA's Rural Transit Assistance Program (RTAP). Texts of these rules may be downloaded in electronic format from the Resource Center's TAP-IN electronic bulletin board service, (202) 628-2537 (no charge, 300 - 14400 baud, N-8-1 settings), and on the Resource Center's Internet site,http://www.ctaa.org/ntrc/rtap/pubs/ta/primer.asp.

Also available from the Resource Center is another technical assistance brief, Writing an FTA Drug and Alcohol Policy. While it focuses on FTA's rule, not FHWA'S, there are enough similarities between the two rules to make effective use of this brief. Single copies are available at no charge from the Resource Center's Hotline and fax-on-demand service, (800) 527-8279.

The Resource Center can match employers with other transportation providers in their communities for information sharing and consortium-forming purposes. It can link employers with federal and state-level resource materials and information sources to help ease the implementation of both FTA and FHWA testing rules.

A major component of the supervisory training required by all the DOT rules is learning to recognize the signs and effects of substance abuse in the transportation workplace. A source that can be used as part of this training is a video and workbook-based training module, Substance Abuse Awareness in Rural Transit. Copies of this module are available from each state's RTAP coordinator or through the National Transit Resource Center Hotline, (800) 527-8279.

CTAA provides training on both the FTA and FHWA drug and alcohol testing program. This training includes a two-day course on establishing a testing program, and a two-hour supervisory training workshop. For more information on these and related CTAA training courses, contact Caryn Souza of CTAA's Training Division at (202) 628-1480.

FTA has prepared materials to assist covered grantees in understanding and implementing its testing rules. Much of the information in these materials is transferable to FHWA's rules. Some of these FTA items include Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit (Federal Transit Administration, April 1994), Employer's Guide to 49 CFR Part 40 (Department of Transportation, October 1990) and Random Drug Testing Manual (Urban Mass Transportation Administration September 1991). For information on obtaining these materials, contact Judy Meade of FIA at (202) 366-8970.