FRA Regulation 49 CFR Part 219

Railroad Drug Testing

Federal Railroad Administration (FRA)

Railroads in the United States are required to have DOT drug and alcohol testing program and regulated by 49 CFR Part 40. Additional agency regulations must be followed. The FRA regulation is 49 CFR Part 219 and the summary highlights are below.

Covered employee: A person who performs hours of service functions at a rate sufficient to be placed into the railroad’s random testing program. Categories of personnel who normally perform these functions are locomotive engineers, trainmen, conductors, switchmen, locomotive hostlers/helpers, utility employees, signalmen, operators, and train dispatchers.

Types of tests for drugs: Pre-employment, random, reasonable suspicion, reasonable cause, post-accident, return-to-duty, and follow-up.

Types of tests for alcohol: Pre-employment (optional), random, reasonable suspicion, reasonable cause, post-accident, return-to-duty, and follow-up.

Definition of accident requiring testing: FRA’s post-accident testing rule requires urine and blood specimen collection from surviving employees and also tissue from deceased employees (these collection procedures go well beyond the normal Part 40 procedures). For surviving employees, these specimens are collected at an independent medical facility. FRA regulation, 49 CFR Part 219 Subpart C, stipulates the level of events requiring testing and who has to be tested. The collected specimens are analyzed only at FRA’s contract laboratory. Post-accident testing provides FRA with accident investigation and usage data.

Reasonable-suspicion determination: One trained supervisor can make the decision for alcohol testing based upon specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the employee. A decision to conduct a drug test requires two supervisors (only the on-site supervisor must be trained).

Reasonable-cause determination: Employers are authorized to use federal authority to test covered employees after specific operating rule violations or accidents/incidents which meet the criteria in 49 CFR Part 219 Subpart D.

Pre-duty alcohol use prohibitions: Four (4) hours prior to performance of duty or after receiving notice to report for covered service, whichever is the shorter period.

Actions for BACs 0.02 – 0.039: The employee cannot be returned to duty until the start of the employee’s next regularly scheduled duty period, but not less than 8 hours following the test. Railroads are prohibited from taking further disciplinary action under their own authority.

Employee Training

Employer must provide education materials that explain the requirements of the FRA rules as well as railroad policies and procedures with respect to meeting these requirements.

Supervisor Training

A total of three hours of training is required: one-hour on the specific, contemporaneous physical, behavioral, and performance indicators of probable drug use; one- hour of similar training on probable indicators of alcohol use; and one-hour of training on how to determine if an accident qualifies for post-accident testing.

Reportable employee drug and alcohol violations: No requirements to report violations to FRA. Engineers, who are the only certificate holders in the rail industry, will have their certificates reviewed for suspension or revocation by the employer when a FRA violation occurs. Note that a FRA alcohol violation occurs at 0.04 percent or greater. When a locomotive engineer is in a voluntary referral program, the counseling professional must report the engineer’s refusal to cooperate in the recommended course of counseling or treatment.

Other: Anyone with direct or immediate supervisory authority over an employee may not collect that person’s urine, saliva, or breath.

Refusal to test results in a mandatory minimum nine-month removal from covered service. During this nine-month period, there is no prohibition against the employee working a non- covered service position if agreeable to the employer.

Locomotive engineers (or other employees certified as a locomotive engineer at the time of the alcohol or drug violation) required both alcohol and drug return-to-duty tests; and both alcohol and drug follow-up tests.

Locomotive engineers who have a DUI are required by Part 240 to be evaluated to determine whether they have an active substance abuse disorder. A DUI is not considered to be a violation of FRA regulations if it occurred during the employee’s off-duty time; therefore, any testing would be conducted under employer authority.

Employers must provide a voluntary referral program which allows an employee to self-refer for treatment, and a co-worker report program which allows one employee to refer another for treatment before the employer identifies a problem. Both of these employee assistance programs guarantee that employees will retain their jobs if they cooperate and complete the required rehabilitation program. For an engineer who is in a voluntary referral program, the counseling professional must report the engineer’s refusal to cooperate in the recommended course of counseling or treatment to the employer.

National Drug Screening is available to assist both large and small railroads and contractors with FRA and DOT required drug and alcohol drug testing programs. Expert assistance is available for compliance. Call today for immediate assistance.