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8414.5-R Alcohol and Drug Testing of Drivers Regulation

  • 8000: Support Services
8414.5-R Alcohol and Drug Testing of Drivers Regulation

Any employee who operates a commercial motor vehicle, or other "school bus," or is in a related safety-sensitive function described below shall be subject to alcohol and controlled substance testing in accordance with this regulation and applicable federal regulations and state law. An employeehaving any questions concerning the district’s policy or regulation, state law or the applicable federal regulations shall contact the Superintendent of Schools.

Any treatment, rehabilitation program or discipline will be provided in accordance with district policy and/or collective bargaining agreements.

  1. Definitions
    1. Employees Covered Under Federal Law

 

Employees covered under federal law include district employees who operate a commercial motor vehicle, perform in a related safety-sensitive position, and are required to obtain a commercial driver’s license. Such employees include:

  1. drivers of vehicles designed to transport 16 or more passengers, including the driver;

  2. drivers of commercial motor vehicles whose manufacturer’s rating is 26,001 lbs. or more; or

  3. any other employee who may drive or service a vehicle listed in 1 or 2 above (e.g., a mechanic who performs test drives, repairs, inspects or loads or unloads a listed vehicle).

Such employees include, but are not limited to full time, regularly employed drivers; casual, intermittent or occasional drivers; leased drivers and independent, owner-operator contractors who are either directly employed or under lease to an employer or who operate a commercial motor vehicle at the direction or with the consent of the district.

  1. Employees Covered Under State Law

Operators of “other school buses" are subject to testing as described in section III below. Other "school buses" include both those covered by applicable federal regulations as stated above, and any other motor vehicle either owned by the district or by a private company, operated to transport students, children of students, teachers, and other supervisory persons to or from school or school activities.

Certain specified employees will not be considered operators of "other school buses." They include:

  1. Volunteers who drive a school bus with passengers fewer than 30 days per year; and

  2. Employees engaged in the maintenance, repair or garaging of buses, who in the course of their duties must incidentally drive a vehicle not covered under federal law without passengers.
  1. Safety Sensitive Function

An employee is performing a safety-sensitive function that is covered by federal regulations when:

  1. waiting to be dispatched, unless the driver has been relieved from duty;

  2. inspecting, servicing or conditioning any commercial motor vehicle;

  3. driving a commercial motor vehicle;

  4. attending a vehicle being loaded or unloaded;

  5. performing the driver requirements of the federal regulations pertaining to accidents; and

  6. attending to a disabled vehicle.
  1. Driver Prohibitions and Consequences

Employees covered under federal law are required to be in compliance with district policy and regulation at the following times:

  1. when performing any on-duty safety-sensitive functions, including all time from the time a driver begins to work or is required to be in readiness to work until the time the driver is relieved from work and all responsibility; and

  2. during all time spent providing a breath sample, saliva sample or urine specimen and travel time to and from the collection site in order to comply with random, reasonable suspicion, post-accident, return-to-duty or follow-up testing.

Employees covered under both federal and state law are prohibited from driving a listed vehicle or performing other safety-sensitive duties if the employee:

  1. possesses, consumes or is reasonably believed to possess or have consumed alcohol or a controlled substance, while on duty;

  2. has consumed or is under the influence of alcohol or a controlled substance that is not lawfully prescribed within six hours before duty;

  3. has an alcohol concentration of 0.02 or higher, or tests positive for controlled substances; or

  4. refuses to take a required alcohol or controlled substance test. Refusal to submit shall mean the failure to provide adequate breath or urine without a valid medical explanation, receipt of verified adulterated or substituted drug test result, or to engage in conduct that clearly obstructs the testing process, such as a failure to arrive for the drug testing or failure to sign the alcohol testing form prior to specimen collection.

In addition, an employee covered under federal law is prohibited from consuming alcohol within eight hours after being involved in an accident, or before undergoing a post-accident test, if such a test is required. Illegal drug use by drivers is prohibited on or off duty.

Drivers who violated the above prohibitions will be subject to the following enforcement actions:

  1. Employees covered under federal law will be removed from their safety-sensitive functions if they violate the district’s policy or federal regulations pertaining to the possession or consumption of alcohol or controlled substances.

  2. The Supervisor of Transportation or his/her designee will not require or permit employees covered under state law to be on duty or operate a listed vehicle or other school bus, if it appears that they have consumed a drug/controlled substance (except those lawfully prescribed) or alcohol within the preceding eight hours. This shall be based on the person's general appearance, conduct, or other substantiating evidence. Those who maintain, repair, or garage listed vehicles or school buses that involves incidental driving without passengers, are exempt from this requirement, but are still prohibited from consuming controlled substances and alcohol within six hours of going on duty.

  3. Any covered employee who tests 0.02 or greater but less than 0.04 will be removed from driving and other safety-sensitive duties until the start of the driver’s next regularly scheduled duty period, but not less than 24 hours following administration of the test.

  4. In the event that any covered employee has a breath alcohol concentration of 0.04 or greater, has tested positive for a controlled substance or has refused to take a test, he or she will, in addition to immediate removal from driving and any other safety-related duties, not be returned to duty until he or she:
  • has been evaluated by a substance abuse professional;

  • has complied with any treatment recommendations; and

  • has received a satisfactory result from a return to duty test.
  1. Upon return to duty, the employee will be subject to follow-up testing.

While New York Law permits the use of medical marijuana, federal law still prohibits its use. Any driver tested under the federal regulations, who tests positive for marijuana, even if such use is based upon a lawful certification under state law, will be found to have violated the federal regulations (DOT Office of Drug and Alcohol Policy and Compliance, Medical Marijuana Notice (Oct. 2009) at: https://www.transportation.gov/odapc/medical-marijuana-notice).

  1. Types of Testing

The Superintendent of Schools and the Director of Transportation shall ensure that the following alcohol and drug tests are conducted and that any employee who is required to take such a test is notified prior to the test that it is required pursuant to federal regulations. Notice will also be given in the case of pre-employment alcohol testing, that such test is required by state law.

  1. Pre-employment: Controlled substance and alcohol tests will be conducted before all applicants are hired or after an offer to hire, but before actually performing safety-sensitive functions for the first time. These tests will also be given when employees covered under federal or state law transfer to a safety-sensitive function.

  2. Post-accident: Alcohol and controlled substance tests will be conducted if a driver covered under federal law is involved in an accident in which:
    1. there has been a fatality; OR

    2. the driver has received a citation for a moving violation in connection with the accident pursuant to the time limitations specified in the regulation AND EITHER
      1. there is an injury treated away from the scene of the accident; or

      2. there is a disabled vehicle towed from the scene.

  3. Reasonable Suspicion: Alcohol and controlled substance tests will be conducted if when the Transportation Supervisor or other school official who has completed the minimum two hours of training has a reasonable suspicion that the driver covered under federal law has violated district policy and regulation. A “reasonable suspicion” must be based on specific, contemporaneous, articulable observations concerning the driver’s behavior, appearance, speech or body odors that are characteristic of controlled substance or alcohol misuse. Alcohol tests can only be done just before, during or just after the employee covered under federal law drives a listed vehicle or performs other safety-sensitive duties. The supervisor who makes the determination of reasonable suspicion cannot do the testing.

  4. Random Testing: For employees covered under federal law, random alcohol tests shall be conducted annually at a minimum rate established annually by the Federal Motor Carrier Safety Administration. Random alcohol tests must be conducted just before, during or just after the employee drives a listed vehicle or performs other safety-sensitive duties. For employees covered under federal law, random controlled substance tests shall be conducted annually at a minimum rate established annually by the Federal Motor Carrier Safety Administration. Random controlled substance tests may be conducted at any time. Random alcohol and controlled substance tests must be unannounced and spread reasonably throughout the calendar year.

New York law requires employees covered by state law to be tested in conformance with federal regulations 49 CFR Part 382. Although federal regulations permit employers to perform random testing beyond what they require, a separate pool must be maintained for those employees covered by state law who do not meet federal requirements. The separate pool for these employees will be subject to testing at the same minimum rate annually established for driver’s subject to the Federal Motor Carrier Safety Administration regulations.

  1. Return-to-Duty Testing: Any covered employee who refused to take a test or has engaged in prohibited alcohol and controlled substance use, except for alcohol concentration of between 0.02 and 0.04, shall be required to take an alcohol or controlled substance test and achieve a satisfactory result before returning to duty in the safety-sensitive position. If removal was due to alcohol use, a satisfactory result will be less than 0.02 alcohol concentration. If removal was due to controlled substance use, a satisfactory result will be one that it is verified as negative. The test will not be administered until the employee has been evaluated by a substance abuse professional and has complied with any treatment recommendations.

  2. Follow-Up Testing: After any covered employee who was found to violate the district’s policy against alcohol and controlled substance use returns to duty, he or she will be subject to at least six unannounced tests in the first 12 months following the employee’s return to duty. Follow-up testing may be extended for up to 60 months from the date of the employee’s return to duty. Follow-up alcohol testing may only be conducted before, during or after the driver has performed his or her driving duties.
  1. Testing Procedures
  1. Alcohol Testing Procedures

Alcohol testing will be conducted with evidential breath testing (EBT) devices approved by the National Highway Traffic Safety Administration. An approved non-evidential screening device may be used to perform screening tests but not for confirmation alcohol tests. The employee and the Breath Alcohol Technician conducting the test must complete the alcohol testing form to ensure that the results are properly recorded.

  1. Two breath tests are required to determine if a person has a prohibited alcohol concentration. A screening test is conducted first. Any result less than 0.02 alcohol concentration is considered a “negative” test.

  2. If the alcohol concentration is 0.02 or greater, a second or confirmation test must be conducted. The confirmation test must be conducted using an EBT that meets the requirements of federal regulations. If the confirmation test results indicate an alcohol concentration from 0.02 to 0.03999, the employee will be restricted from duty for at least 24 hours from the time of the test.

  3. If the confirmation test results indicate an alcohol concentration equal to or greater than 0.04, the employee will be removed from all safety-sensitive duties and no return to duty will be permitted until the employee has successfully passed required return-to-duty tests. The employee must also be reviewed by a Substance Abuse Professional and comply with his/her recommendations. Follow-up tests will also be required.

  4. For post-accident testing, the results of breath or blood tests conducted by law enforcement officials will be accepted as long as the testing conforms with federal and state requirements for alcohol testing and the results are made available to the district.

All testing procedures will conform to the requirements outlined in federal regulations (49 CFR Part 40) for ensuring the accuracy, reliability and confidentiality of test results. These procedures include training and proficiency requirements for Breath Alcohol Technicians, quality assurance plans for the EBT devices including calibration, requirements for suitable test location, and protection of employee test records.

 

  1. Drug Testing Procedures

The employee must provide a urine specimen at a collection site that meets federal requirements which will be analyzed at a laboratory certified and monitored by the U.S. Dept. of Health and Human Services.

  1. Regulations require that each urine specimen be divided into one “primary” specimen and one “split” specimen.

  2. All urine specimens are analyzed for the following drugs or drug metabolites (by-products of the body metabolizing a drug):
    1. Marijuana (metabolites)

    2. Cocaine metabolites

    3. Amphetamines (including methamphetamines, MDA and MDMA)

    4. Opioids (including natural opiates such as codeine, morphine, heroin, and semi-synthetic opioids such as hydrocodone, hydromorphone, oxycodone, and oxymorphone)

    5. Phencyclidine (PCP)

  3. If the primary specimen confirms the presence of one or more of these drugs, the employee has 72 hours to request that the split specimen be sent to another certified lab for analysis. All drug test results will be reviewed and interpreted by a physician (also called a Medical Review Officer) before they are reported to the district.

  4. If the laboratory reports a positive result to the Medical Review Officer (MRO), the MRO shall interview the employee to determine if there is an alternative medical explanation for the drugs found in the employee’s urine specimen. If the employee provides appropriate documentation and the MRO determines that it is legitimate medical use of a prohibited drug, the drug test result is reported as negative.

  5. If the MRO reports a positive drug result, the employee must be evaluated by a substance abuse professional and follow his/her recommendations prior to taking a return-to-duty test. Follow-up testing is also required.

  6. For post-accident testing, the results of urine tests conducted by law enforcement officials will be accepted as long as the testing conforms with federal and state requirements for controlled substance testing and the results are made available to the district.

All controlled substance testing shall comply with the requirements of the federal regulations (49 CFR Part 40) including procedures for the proper identification, security and custody of the sample, use of certified laboratories, assurance that all drug test results are reviewed and interpreted by a physician, and ensuring confidentiality of employee test records.

  1. Dilute Specimen Testing

If the district receives a drug test result which is negative but dilute and the creatinine concentration is greater than 5mg/dl, the district shall require a re-test to be conducted in each of the following cases:

  • Pre-employment tests

  • Return-to-duty tests

  • Follow-up tests

  • Reasonable suspicion tests

  • Random tests

The result of the re-test shall become the test of record. If the employee refuses to take the re-test it will be considered the same as a positive test result.

  1. Training

The Supervisor of Transportation and every other person designated to determine whether reasonable suspicion exists to require an employee covered by federal law to undergo reasonable suspicion testing must receive at least one hour of training on alcohol misuse and at least one additional hour of training on controlled substance use which they will use in making their determinations.

  1. Recordkeeping and Reporting

The Transportation Supervisor shall ensure that alcohol and drug testing records are maintained pursuant to applicable regulation and are available, if requested, for submission to the federal government or any State or local officials with regulatory authority over the employer or any of its drivers.

The following personal information must be reported to the Department of Transportation (DOT) Clearinghouse for employee’s subject to DOT testing:

  • a verified positive, adulterated or substituted drug test result;

  • an alcohol confirmation tests with a concentration of 0.04 or higher;

  • a refusal to submit to any test required by the regulations;

  • An employer’s report of actual knowledge of on duty alcohol use, pre-duty alcohol use, alcohol use following an accident, and controlled substance use;

  • A substance abuse professional’s report of the successful completion of the return-to-duty process;

  • A negative return-to-duty test; and

  • An employer report of completion of follow-up testing.
  1. Required Notification

Every covered employee shall receive information about the signs, symptoms, and effects of alcohol misuse and controlled substance use as well as a copy of the district’s policy and procedures, the consequences of testing positive and who to contact within the district to seek further information and/or assistance.

Each covered employee is required to sign a statement certifying that he/she has received this information. The district shall maintain the original signed certification until the employee’s employment is discontinued. The district will provide a copy of the certification to the covered employee upon request.

  1. Penalties

Any treatment, rehabilitation program or discipline will be provided in accordance with applicable law and regulations, district policy and/or collective bargaining agreements.

Any employer or driver who violates the requirements of the federal regulations of the Omnibus Transportation Employee Testing Act of 1991 may be subject to civil penalties.

In addition, in accordance with New York State law, a driver convicted of driving a listed vehicle with one or more student passengers while impaired by the use of drugs or alcohol will have his/her license revoked for one year and is subject to fines ranging from $500 to $5,000 and/or imprisonment. Any driver convicted more than once in 10 years for such crimes will have his/her license revoked for three years and is subject to a fine of $1,000 to $5,000 and/or imprisonment.

Adoption Date: 05/21/20

 

 

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