FRA Drug and Alcohol Regulations
FRA Drug and Alcohol Rules: An Overview
The following is a general overview of the Federal Railroad Administration’s (FRA) drug and alcohol testing rules for persons required to safety-sensitive duties. The information is intended to provide a general summary of the rules. A comprehensive list of the alcohol and drug testing rules published by the FRA and the DOT Office of the Secretary (OST) applicable to safety-sensitive employees and their employers is available in 49 CFR Part 219. For help understanding and implementing regulations for the FRA contact us.
What are the Rules?
The FRA regulations require drug and alcohol testing of individuals operating in safety-sensitive positions, including contracted workers, part-time employees, and certain MOW employees. The FRA and DOT test for and prohibit the use of the following drugs: marijuana, cocaine, non-prescribed opiates, phencyclidine (PCP), and non-prescribed amphetamines. Employees are also not permitted to perform safety-sensitive functions with an alcohol concentration greater than 0.02. If an employee tests positive for alcohol in a concentration between 0.02 and 0.04 they must not perform safety-sensitive functions until their next regularly scheduled shift (not before 8 hours after the initial positive), or until their alcohol concentration is below 0.02.
In order to properly implement the drug and alcohol policies as required by the DOT and FRA, an employer must have the following:
- An Employee Assistance Program (EAP) that must include education and training on drug use for employees and training for supervisors making determinations for testing of employees based on reasonable cause.
- 60-minutes of drug and alcohol use recognition training for supervisors in roles that must make such determinations.
- A Drug and Alcohol Testing Program that conducts pre-employment, random, return-to-duty, follow-up, and reasonable cause testing for safety-sensitive employees.
- Each railroad must submit for review and approval a random testing plan
meeting the requirements of §§ 219.607 and 219.609 to the FRA Drug and Alcohol Program Manager, 1200 New Jersey Ave., SE, Washington, DC 20590.
- Follow all other DOT requirements for drug and alcohol testing as dictated in 49 CFR Part 40.
Who Are Affected by These Rules?
The FRA rules outlined in 49 CFR Part 219 apply to any railroad except as specified below listed in §219.3:
This part applies to all railroads and contractors, except as provided in paragraphs (b), (c), and (d) of this section, and except for:
(1) Railroads that operate only on track inside an installation that is not part of the general railroad system of transportation (i.e. plant railroads, as defined in § 219.5);
(2) Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation, as defined in § 219.5; or
(3) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation.
(b) Annual report requirements. (1) Subpart I of this part does not apply to any domestic or foreign railroad that has fewer than 400,000 total annual employee work hours, including hours worked by all employees of the railroad, regardless of occupation, not only while in the United States, but also while outside the United States.
(2) Subpart I of this part does not apply to any contractor that performs regulated service exclusively for railroads with fewer than 400,000 total annual employee work hours, including hours worked by all employees of the railroad, regardless of occupation, not only while in the United States, but also while outside the United States.
(3) When a contractor performs regulated service for at least one railroad with fewer than 400,000 total annual employee work hours, including hours worked by all employees of the railroad, regardless of occupation, not only while in the United States, but also while outside the United States, subpart I of this part applies as follows:
(i) A railroad with more than 400,000 total annual employee work hours must comply with subpart I regarding any contractor employees it integrates into its own alcohol and drug testing program under this part; and
(ii) If a contractor establishes its own independent alcohol and drug testing program that meets the requirements of this part and is acceptable to the railroad, the contractor must comply with subpart I if it has 200 or more regulated employees.
CFR Part 219, effective June 12, 2017 Revisions as of June 7, 2017
(c) Small railroad exception. (1) Sub-parts E and G of this part do not apply to small railroads, and a small railroad may not perform the Federal alcohol and drug testing authorized by these sub-parts. For purposes of this part, a small railroad means a railroad that:
(i) Has a total of 15 or fewer employees who are covered by the hours of service laws at 49 U.S.C. 21103, 21104, or 21105, or who would be subject to the hours of service laws at 49 U.S.C. 21103, 21104, or 21105 if their services were performed in the United States; and
(ii) Does not have joint operations, as defined in §219.5, with another railroad that operates in the United States, except as necessary for purposes of interchange.
(2) An employee performing only MOW activities, as defined in § 219.5, does not count towards a railroad’s total number of covered employees for the purpose of determining whether it qualifies for the small railroad exception.
(3) A contractor performing MOW activities exclusively for small railroads also qualifies for the small railroad exception (i.e., is excepted from the requirements of sub-parts E and G of this part). A contractor is not excepted if it performs MOW activities for at least one or more railroads that does not qualify for the small railroad exception under this section.
(4) If a contractor is subject to all of part 219 of this chapter because it performs regulated service for multiple railroads, not all of which qualify for the small railroad exception, the responsibility for ensuring that the contractor complies with sub-parts E and G of this part is shared between the contractor and any railroad that uses the contractor that does not qualify for the small railroad exception.
(d) Foreign railroad. (1) This part does not apply to the operations of a foreign railroad that takes place outside the United States. A foreign railroad is required to conduct post-accident toxicological testing or reasonable suspicion testing only for operations that occur within the United States.
(2) Sub-parts F, G, and K of this part do not apply to an employee of a foreign railroad whose primary reporting point is outside the United States if that employee is:
(i) Performing train or dispatching service on that portion of a rail line in the United States extending up to 10 route miles from the point that the line crosses into the United States from Canada or Mexico; or
(ii) Performing signal service in the United States.
For the covered entities under the FRA and MOW rules, all safety-sensitive employees must be tested. The FRA defines safety-sensitive employees as:
- Engine service employees involved in the movement of trains or engines (e.g., conductors, brakemen, switchmen, engineers, locomotive hostlers/helpers)
- Dispatching employees who issue mandatory directives (e.g., train dispatchers, control operators)
- Signal employees who inspect, repair or maintain signal systems
- Maintenance of way employees performing duties of roadway workers as defined in §214.7
- NOTE: De minimis employees performing regulated services on average less than a quarter is not subject to inclusion in a random testing pool with normally regulated employees (e.g., engineers, conductors, dispatchers, and signal maintainers).
What if We Operate in a Joint Operation?
If your organization is operating on rails with multiple entities responsible for transit or maintenance the primary responsibility for compliance rests with the host railroad, and all covered employees take direction from the host railroad in compliance concerns with Part 219. However, you are not restricted from creating a joint agreement dispersing compliance responsibility amongst the entities of the joint operation.
Should an employee test positive for drug or alcohol use and is part of a joint operation, any pertinent documentation, witnesses, or records relating to their positive test (or refusal to test) must be made available to the employer and employee on a reasonable basis.
What if We Hire a Contractor?
Contractors must abide by the same regulations and restrictions as any railroad. The railroad employing a contractor may fulfill the responsibility of these regulations by treating the contracted employees as their own in regards to the testing requirements or require the contracting company to do so as dictated by a written contract. Lacking clearly defined roles for these responsibilities in a written contract opens the railroad and contractor up to liability as the FRA may hold them jointly or severally responsible for compliance.
What Alcohol Use is Prohibited?
Alcohol is a legal substance; therefore, the rules prohibit specific alcohol-related conduct. Performance of safety-sensitive functions is prohibited:
- While using alcohol.
- While having a breath alcohol concentration of .02 percent or greater as indicated by an alcohol breath test.
- If an employee tests positive for alcohol use between the concentrations of .02-.039 they must be removed from safety-sensitive functions for at least 8 hours
- Within four hours after using alcohol.
In addition, refusing to submit to an alcohol test or using alcohol within eight hours after an accident or until tested is prohibited.
What Alcohol Tests Are Required?
The following alcohol tests are required:
- Post-accident (bullet points below are provided by the FRA Part 219 Compliance Plan)
- For an accident that meets the criteria for a Major Train Accident, all assigned crew members of all involved trains and on-track equipment must be tested. Test any other regulated service employees that had a possible role in the cause or severity of the accident.
- For an Impact Accident, Fatal Train Incident, Passenger Train Accident or Human-Factor Highway-Rail Grade Crossing Accident/Incident, Test any other regulated service employees that had a possible role in the cause or severity of the accident. The company must exclude other regulated service employees if the responding railroad representative can immediately determine, on the basis of specific information, that the employee had no role in the cause(s) or severity of the accident/incident (considering any such information immediately available at the time).
- For a fatal train incident, the fatally injured employee cannot be excluded from being tested. If there is a fatality of any regulated service employee as result of a Highway-Rail Grade Crossing Accident/Incident, the fatally injured regulated employee must be tested regardless of fault.
- The test should be conducted within 4 hours, if not conducted within this time frame, you must immediately notify the FRA Drug and Alcohol Program Manager at 202-493-6313 and provide detailed information regarding the failure (either verbally or via a voicemail). The railroad must also submit a concise, written narrative report of the reasons for such a delay to the FRA Drug and Alcohol Program Manager, 1200 New Jersey Ave., SE., Washington, DC 20590.
- Employees cannot be tested after 24 hours have passed from the qualifying event. Employees who are recalled after leaving railroad property without being notified of the need to test for a post-accident test must not be tested for alcohol, only drugs.
- Form FRA 6180.73 must be completed for shipping with the specimens, and either Form 6180.74 or Form 6180.75 for fatalities.
- Railroads must follow the appropriate reporting requirements for post-accident testing as outlined in §219.211.
- Reasonable suspicion – conducted when a trained supervisor or company official observes behavior or appearance that is characteristic of alcohol misuse.
- Random – conducted on a random unannounced basis just before, during, or after the performance of safety-sensitive functions.
- FRA recommends Roadway Workers be placed in separate and stand-alone random pools. Railroads not normally required to submit MIS reports as required by 49 CFR Part 219.800 should contact Sam Noe at email@example.com to discuss the combining of random pools)
- Must be unpredictably spaced between the start and end of operating shifts (at minimum 10% at the beginning of shifts and 10% at the end of shifts).
- If an employee is selected for both drug and alcohol testing, you may do this jointly or separately so long as the employee is tested during their shift and receive no advanced notice of either test.
- Return-to-duty and follow-up – conducted when an individual who has violated the alcohol conduct standards returns to performing safety-sensitive duties. Follow-up tests are unannounced. At least six tests must be conducted in the first 12 months after an employee returns to duty. Follow-up testing may be extended for up to 60 months following return to duty.
How Does Random Alcohol Testing Work?
Random alcohol testing must be conducted just before, during, or after an employee’s performance of safety-sensitive duties. The employee is randomly selected for testing from a “pool” of subject employees. The testing dates and times are unannounced and are reasonably spread throughout the year. Each year, the number of random tests conducted by the employer must equal at least 10% of covered service and 25% of MOW for the average number of positions subject to the regulations.
How Will Alcohol Testing Be Done?
The rules allow for screening tests to be conducted using saliva devices or breath testing using evidential breath testing (EBT) and non-evidential breath testing devices approved by the National Highway Traffic Safety Administration (NHTSA). NHTSA periodically publishes a list of approved devices in the Federal Register.
Two 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. If the alcohol concentration is 0.02 or greater, a second confirmation test must be conducted. The employee and the individual conducting the confirmation breath test (called a Breath Alcohol Technician (BAT)) complete the Alcohol Testing Form to ensure that the results are properly recorded. The confirmation test, if required, must be conducted using an Evidential Breathe Testing (EBT) device that prints out the results, date, time, sequential test number, and the name and the serial number of the EBT used to ensure the reliability of the results. The confirmation test results determine any actions taken.
Testing procedures that ensure accuracy, reliability, and confidentiality of test results are outlined in the Part 40 rule. These procedures include training and proficiency requirements for the Screening Test Technicians (STT) and BAT, quality assurance plans for the breath testing devices (including calibration requirements for a suitable test location), and protection of employee test records.
Who Does the Testing?
Employers are responsible for implementing and conducting testing programs. They may do this using their own employees or contract services, or by joining a Third-Party Administrator/Consortium (C/TPA) that provides services to all member companies. Any individual conducting the test must be trained to operate the EBT and be proficient in the breath testing procedures as outlined in 49 CFR Part 40.
What Are the Consequences of Alcohol Misuse?
Employees who engage in prohibited alcohol conduct must be immediately removed from safety-sensitive functions. Employees who have engaged in alcohol misuse cannot return to safety-sensitive duties until they have been evaluated by a Substance Abuse Professional (SAP) and complied with any treatment recommendations to assist them with an alcohol problem. To further safeguard safety, employees who have an alcohol concentration of 0.02-0.04 when tested just before, during or just after performing safety-sensitive functions must also be removed from performing such duties until their next scheduled shift (no earlier than 8 hours after the test), or until their alcohol concentration drops below 0.02.
If an employee’s behavior or appearance suggests alcohol misuse, a reasonable suspicion alcohol test must be conducted. If a breath test cannot be administered, the employee must be removed from performing safety-sensitive duties for at least 24 hours.
In addition to removing an employee from safety-sensitive duty, employees who break alcohol or drug regulations are subject to additional fines by the FRA. The FRA may impose fines of $650 to $25,000 per willful violation for employees and upward of $105,000 per willfully negligent violation that can/does cause injury or death. The liability for railroads whose employees are subject to these penalties is outlined in full in §219.105.
How Will Employees Know About These Rules?
Employers must provide detailed information about alcohol misuse, the employers’ policy, the testing requirements, and how and where employees can get help for alcohol abuse. Supervisors of safety-sensitive employees must attend at least one hour of training on alcohol misuse symptoms and indicators used in making determinations for reasonable suspicion testing.
Are Employees Entitled to Rehabilitation?
Employees who violate the alcohol misuse rules will be referred to an SAP for evaluation. Any treatment or rehabilitation would be provided in accordance with the employer’s policy or labor/management agreements. The employer is not required under these rules to provide rehabilitation, pay for treatment, or reinstate the employee in his/her safety-sensitive position. Any employer who does decide to return an employee to safety-sensitive duties must ensure that the employee: 1) has been evaluated by an SAP; 2) has complied with any recommended treatment; 3) has taken a return-to-duty alcohol test (with a result less than 0.02); and 4) is subject to unannounced follow-up alcohol tests (minimum of 6 tests in the first year, up to 60 months, engineers and conductors – SAP will require a minimum of 6 drug tests and 6 alcohol tests in the first 12 months).
How Will the FRA Know if These Rules are Being Followed?
Employers are required to keep detailed records of their drug and alcohol policies and programs. The FRA will conduct inspections or audits of employers’ programs on occasion. Additionally, employers may be required to prepare MIS reports for the FRA. The FRA requires employers who have a total of 400,000 or more employee hours (regardless of occupation, contractor status, or regulated status) to submit annual MIS reports for the previous year by March 15. These reports will be used to help monitor compliance and enforcement of the rules, as well as to provide data on the extent of alcohol misuse and the need for any future program and regulatory changes. MIS reports can be submitted by your C/TPA on your behalf. To get help with your MIS reports please contact us.
Are Employees' Alcohol Testing Records Confidential?
Yes. Test results and other confidential information may be released only to the employer and the SAP. Any other release of this information is only with the employee’s written consent. If an employee initiates a grievance, hearing, lawsuit, or other action as a result of a violation of these rules, the employer may release relevant information to the decision maker.
Do Foreign Railroads Have to Comply With These Rules?
For the most part, foreign railroads are exempt from part 219. However, foreign railroads are required to do post-accident toxicology and reasonable suspicion testing only for operations that occur in the United States. The FRA may be petitioned to recognize a foreign railroads drug and alcohol program as sufficient and compatible with their agency rules as detailed in §219.4.
What About Drug Testing?
The drug testing rules cover the same employees as the alcohol testing rules. The types of tests required are pre-employment, reasonable suspicion (for drug tests, 2 responsible railroad supervisors, at least 1 trained and on-site, must make the determination. The employee must be tested within 2 hours, if not tested, there must be maintained documentation on why the test was not performed; after 8 hours, you must cease attempts to test the individual), post-accident, random, return-to-duty, and follow-up tests. Railroads may also conduct Federal reasonable cause testing given the proper notification to the FRA and with the understanding of the requirements listed in §219.403.
How is Drug Testing Administered?
Drug testing is conducted by analyzing an employee’s urine specimen. The analysis is performed at laboratories certified and monitored by the Department of Health and Human Services (DHHS). The list of DHHS approved laboratories is published monthly in the Federal Register.
The employee must provide a urine specimen in a location that affords privacy and complies with DOT collection site regulations as stipulated in 49 CFR Part 40. The collector seals and labels the specimen, completes a chain of custody document, and prepares the specimen and accompanying paperwork for shipment to a drug-testing laboratory.
The specimen collection procedures and chain of custody ensure that the specimen’s security, proper identification, and integrity, are not compromised. The Omnibus Transportation Employee Testing Act of 1991 requires that drug testing procedures include split specimen collections. Each urine specimen is subdivided into two bottles labeled as a “primary” and a “split” specimen and both bottles are sent to a laboratory. Only the primary specimen is opened and used for the urinalysis. The split specimen bottle remains sealed and is stored at the laboratory. If the analysis of the primary specimen confirms the presence of illegal controlled substances, the employee has 72 hours to request the split specimen be sent to another DHHS-certified laboratory for analysis.
What Drugs are Tested For?
All urine specimens are analyzed for the following drugs:
- Marijuana (THC metabolite)
- Opiates (including heroin)
- Phencyclidine (PCP)
The testing is a two-stage process. First, a screening test is performed. If it is positive for one or more of the drugs, then a confirmation test is performed for each identified drug using gas chromatography/mass spectrometry (GC/MS) analysis. GC/MS confirmation ensures that over-the-counter medications or preparations are not reported as positive results.
Who Reviews and Interprets the Laboratory Results?
All drug test results are reviewed and interpreted by a physician known as a Medical Review Officer (MRO) before they are reported to the employer. If the laboratory reports a positive result to the MRO, the MRO contacts the employee (in person or by telephone) and conducts an interview 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 a legitimate medical use of the prohibited drug, the drug test result is reported as negative to the employer.
What Drug Use is Prohibited?
The drug rules prohibit any unauthorized use of the controlled substances. Illicit use of drugs by safety-sensitive employees is prohibited on or off duty. DOT drug tests will test for marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, as specified in 49 CFR 40.85.
What Are the Consequences of a Positive Drug Test?
Like alcohol positives above 0.4, an employee who tests positive for drugs must be removed from safety-sensitive duty and receive a written notice of the removal and purpose. The removal cannot take place until the MRO has interviewed the employee and determined that the positive drug test resulted from the unauthorized use of a controlled substance. An employee cannot be returned to safety-sensitive duties until they have been evaluated by a substance abuse professional, has complied with recommended rehabilitation, and has a negative result on a return-to-duty drug test. Follow-up testing to monitor the employee’s continued abstinence from drug use is also required.
Regulations require all return-to-duty and follow-up testing to be conducted under direct observation procedures. During a direct observation, a collector or observer of the same gender has the donor pull their pants down to thigh level and pull up their shirt to demonstrate they have no devices to store urine or a urine substitute (the gender of the observer should match the gender identity of the donor as indicated by the donor). The collector/observer then observes as the donor provides the specimen. The observer must observe the donor urinating into the specimen container.
Should an employee refuse a drug or alcohol test, they must be removed from performing regulated services and must be subject to return-to-duty and follow-up testing.
How Does Random Drug Testing Work?
Employers are responsible for conducting random, unannounced drug tests. The total number conducted each year must equal at least 25% of covered service and 50% of MOW for the average number of positions subject to the regulations. Some employees may be tested more than once each year; some may not be tested at all depending on the random selection. Once notified of selection for testing an employee must proceed immediately to a collection site to accomplish the urine specimen collection.