INDUSTRY NEWS: Best Practices for Creating a Drug Test Policy for Safety Sensitive Positions

Risk reduction strategy begins with:

1. Having the right workplace drug testing policy language relative to pre-duty disclosure of prescription medications by employees in safety sensitive positions.
2. Having an ADA reasonable accommodation policy in your handbook (that discusses the interactive process).
3. Having essential job functions identified in your job descriptions that discuss working in a constant state of alertness and safe manner.
4. Sending employees to their own doctors first for a clearance letter if they are taking prescription drugs that have safety cautions.
5. Training your managers on what is and isn’t appropriate under the ADA.

Policy Drafting:

Writing a policy requires careful review of the regulations and applicable state laws, and often requires legal expertise. Each of the various transportation modes have unique requirements as to what must be included in the policy and in what areas employees require training. All the modes require certain training to be provided on at least the following elements: the effects and consequence of drug and alcohol use on personal health, safety and work environment; and the manifestations and behavioral cues that may indicate drug and alcohol abuse. Furthermore, all of this training must be documented.

You should review the individual transportation mode’s rules carefully. The following is a brief overview along with the section(s) of each mode’s regulations where specific criteria can be found.

• The FAA requires the EAP program for employees to be forwarded to them for approval (14CFR Part 121 App I Parts VIII and IX, and 14 CFR Part 121 App J Parts VI & VII).  Links:  http://edocket.access.gpo.gov/cfr_2008/janqtr/14cfr121AppI.htm  and http://www.faa.gov/about/office_org/headquarters_offices/avs/offices/aam/drug_alcohol/testing/alcohol/media/Appendix%20J%20(Link%201).pdf
• The FMCSA requires 11 items to be included in the company policy (49 CFR Part382.601) http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.aspx?reg=382.601
• The FRA requires 12 items to be included in the policy and employee training (49 CFR Part 219.23). http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div5&view=text&node=49:4.1.1.1.14&idno=49#49:4.1.1.1.14.1.11.13
• The FTA has a list of things that must be included in the Policy Statement (49 CFR Part 655.15 Subpart B). http://www.gpo.gov/fdsys/pkg/CFR-2010-title49-vol7/xml/CFR-2010-title49-vol7-part655.xml#seqnum655.11
• PHMSA drug rules require an EAP to provide drug education (49 CFR Part 199.19), and the PHMSA alcohol rule requires the company to have a policy that includes the items listed in 49 CFR Part 199.239.http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=49&PART=199&SECTION=19&YEAR=2000&TYPE=TEXT
• The Coast Guard also requires an EAP program to have both education and a training program for its employees (46 CFR Part 16.401)