Limitation on Alcohol Use by Transportation Workers; Notice |
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Federico Peña, U.S. Department of Transportation
Rodney E. Slater, Federal Highway Administration
Gordon J. Linton, Federal Transit Administration
February 15, 1994
[Federal Register: February 15, 1994]
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Part II
Department of Transportation
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Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration
Research and Special Programs Administration
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Limitation on Alcohol Use by Transportation Workers; Notice
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration
Research and Special Programs Administration
RIN Nos. 2120-AE43; 2125-AC85; 2130-AA43; 2132-AA38; 2137-AC21.
Limitation on Alcohol Use by Transportation Workers
AGENCies: The Federal Aviation Administration (FAA), the Federal
Highway Administration (FHWA), the Federal Railroad Administration
(FRA), the Federal Transit Administration (FTA) and the Research and
Special Programs Administration (RSPA), DOT.
ACTION: Final rules; common preamble.
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SUMMARY: This document is a common preamble to five alcohol misuse
prevention program final rules being published by several operating
administrations (OAs) of the Department of Transportation (FAA, FHWA,
FRA, FTA, and RSPA) elsewhere in today's issue of the Federal Register.
Four of these rules are required by the Omnibus Transportation Employee
Testing Act of 1991. All of them will enhance the overall safety of the
transportation industry and the public.
DATES: Effective March 17, 1994. See separate operating administration
rules for specific effective and compliance dates.
FOR FURTHER INFORMATION CONTACT: Gwyneth Radloff, Office of the General
Counsel, Department of Transportation, (202) 366-9305, 400 7th Street,
SW., Washington, DC 20590, with respect to the overall Departmental
effort. For information concerning a particular operating
administration rule, contact the individual(s) listed under the FOR
FURTHER INFORMATION CONTACT section for that rule.
SUPPLEMENTARY INFORMATION:
Summary
FAA, FHWA, FRA, and FTA are promulgating rules to implement the
Omnibus Transportation Employee Testing Act of 1991 (``the Act''),
which requires alcohol and drug testing programs in the aviation, motor
carrier, rail, and transit industries in the interest of public safety;
FAA, FHWA and FRA also are relying on their other general safety
authority as a basis for issuing these rules. RSPA is applying similar,
but more limited, requirements to the safety-sensitive employees in the
pipeline transportation industry using existing statutory authority.
The five rules generally have the same requirements and common
language to the extent possible, in recognition of the common elements
of the statute and the problem being addressed. This will ease
compliance for those companies, employers and third-party service
providers that may be subject to, or performing testing under, the
rules of more than one of the OAs. Intended substantive differences
(where industry-specific differences are necessary or to comport with
existing regulatory format or statutory requirements) are explained in
the preambles to the individual OA rules.
In general, the rules prohibit covered employees from performing
safety-sensitive functions: (1) When test results indicate an alcohol
concentration of 0.04 or greater; (2) Within four hours after using
alcohol; (3) While using alcohol on the job; (4) During the 8 hours
following an accident if their involvement has not been discounted as a
contributing factor in the accident or until they are tested; and (5)
If they refuse to submit to required alcohol tests. Employers have to
remove from a safety-sensitive function any covered employee who
violates any of these prohibitions until he or she has met the
conditions for returning to a safety-sensitive function. If an employee
is found to have an alcohol concentration of 0.02 or greater but less
than 0.04 or if the employee is under the influence of or impaired by
alcohol, as indicated by behavior, speech and performance indicators of
alcohol misuse, and a reasonable suspicion alcohol test result cannot
be obtained, the employee will have to be removed from safety-sensitive
duties for 8 hours or until a test result below 0.02 is obtained. Four
of the rules require employers to conduct pre-employment, reasonable
suspicion (the term used in the Act, which is comparable to the term
``reasonable cause'' testing used in the DOT OAs' existing drug rules
and in the DOT advance notice of proposed rulemaking (ANPRM) on alcohol
testing discussed below), post-accident, random, return-to-duty and
follow-up alcohol testing. These rules also establish a performance
standard for adjusting the initial 25 percent random alcohol testing
rate for each transportation industry (except RPSA).
RSPA's rule requires only reasonable suspicion, post-accident,
return-to-duty and follow-up testing. Most of RSPA's commenters opposed
the proposed alcohol prevention program; others supported it with
various modifications tailored to the specific needs of the pipeline
industry. Those in opposition noted that RSPA is not covered by the Act
and that we do not have data indicating that there is a problem in the
pipeline industry to support the costly imposition of the proposed
program. They also perceived pipeline safety risks as different from
those in other forms of public transportation, since pipelines do not
carry people. Some commenters urged that we conduct a pilot program
until we obtain sufficient data to make a decision on whether
imposition of the program is justified.
The lack of data cited by some commenters could result as easily
from the lack of testing and industry alcohol prevention programs as
from the absence of an alcohol problem in the pipeline industry. Our
primary job in these rules is to implement the Act, which we have done
in the other four OA rules. But to be sure we are providing a margin of
safety where the Act does not extend, we are establishing an alcohol
prevention program, including reasonable suspicion and post-accident
testing, for the pipeline industry. Pipeline safety, obviously, is very
important. While pipelines do not carry people, they carry dangerous
materials that could do tremendous damage to people and property if
someone affected by alcohol makes mistakes. Therefore, for safety
reasons, we have decided to impose an alcohol misuse prevention program
on the pipeline industry. We will monitor the data from the testing
that is conducted to determine whether any further action is warranted.
The rule will still ensure that pipeline employees are subject to the
same alcohol misuse prohibitions, consequences and educational efforts
that apply to other transportation industry employees. Pipeline
operators can, of course, conduct other types of alcohol testing under
their own authority.
The rules will provide more flexibility to use different testing
technologies for screening tests than we proposed in the OA notices of
proposed rulemaking (NPRMs). When, in the future, we evaluate and
approve a device as meeting NHTSA model specifications and we have
established rules setting forth the procedures for its use, employers
may use the device. However, at the present time, only evidential
breath testing (EBT) devices on the National Highway Traffic Safety
Administration's (NHTSA) Conforming Products List (CPL), including
those without printers, meet these specifications and will have
procedures in place at the time the five OA final rules take effect.
(58 FR 48705, September 17, 1993). The CPL is a list of alcohol breath
testing devices that have been found to conform to NHTSA's Model
Specifications for EBTs. The CPL serves as a guide to State and local
governments when they make purchasing decisions about these devices.
(NHTSA develops programs relating to motor vehicle and highway safety,
some of which are designed to reduce alcohol and other drug use among
drivers.) NHTSA has published elsewhere in today's Federal Register
proposed model specifications for additional alcohol screening devices,
which could lead to their approval for future use in conducting
screening tests under these rules.
We also are considering requiring the employer to conduct a blood
test in reasonable cause and post-accident situations where an EBT is
not readily available. The blood alcohol testing proposal, including
testing procedures, is addressed in a separate NPRM published elsewhere
in today's Federal Register. Before we issue a final rule, we need to
resolve specimen collection issues and determine how to identify those
laboratories that we can rely on to accurately analyze blood samples
for alcohol concentration.
All of the OA alcohol misuse prevention final rules also impose
reporting and recordkeeping requirements and provide for dissemination
of alcohol misuse information to employees, supervisor training, and
referral of employees to substance abuse professionals (SAPs) for
evaluation.
This document is a common preamble jointly issued by each of the
five OAs and provides the background for and an overview of the
general, common elements of their rules. It is incorporated as part of
the preamble for each individual OA's rule; additional modal-specific
preambles have been issued by each of the OAs to provide an explanation
of any differences from, or additions to, the common language. The
following related documents appear in today's Federal Register:
(1) This common preamble;
(2) An Office of the Secretary (OST) final rule on alcohol testing
procedures and conforming changes to the existing drug testing
procedures that is incorporated by reference into the OA alcohol misuse
prevention final rules;
(3) An Office of the Secretary (OST) NPRM proposing blood alcohol
testing requirements and procedures that would be incorporated by
reference into the OA alcohol misuse prevention final rules, if they
become final;
(4) The modal-specific OA alcohol misuse prevention final rules
for: FAA; FHWA (also includes changes to its existing drug rule
mandated by the Act, including extension of its rule to persons
required to hold a commercial drivers license (CDL), including
intrastate truck and motor coach operations); FRA (also includes
changes to its existing drug rule); FTA; and RSPA;
(5) FAA and FHWA NPRMs seeking public comment on application of
alcohol and drug testing requirements to foreign operators in the
United States in the aviation and motor carrier industries. A similar
FRA ANPRM issued December 15, 1992, is being withdrawn by a notice
published elsewhere in today's Federal Register. Foreign railroad
operators have very limited operations in the U.S. and already comply
with FRA's existing substance abuse requirements;
(6) An FTA final rule that imposes on recipients of Federal funding
in the transit industry drug testing requirements similar to those in
the other transportation industries (it also contains MIS requirements
discussed below);
(7) An FAA NPRM proposing conforming changes to its existing drug
testing rule to implement the requirements of the Act and for other
purposes; and
(8) A DOT-wide common preamble with rule language from 6 OAs that
proposes a performance standard for adjusting the random drug testing
rate for the current random drug testing programs in the aviation,
motor carrier, rail, pipeline and maritime industries and the new drug
testing program for the transit industry. The proposals contain
safeguards that would ensure maintenance of an adequate level of
deterrence and detection of illegal drug use.
Related Management Information System (MIS) final rules issued by
FAA, FHWA, FRA, RSPA and the U.S. Coast Guard (USCG) that require
employers to submit annual drug testing program information (USCG rule
also contains alcohol requirements) were published December 23, 1993
(58 FR 68194 et seq.). FTA's final drug testing rule contains its MIS
requirements. Similar MIS programs for alcohol are established in the
OA alcohol rules.
Regulatory assessments that analyze the costs and benefits of and
the alternatives considered for each of the final rules and NPRMs
published in today's Federal Register have been placed in the
individual rulemaking dockets.
Table of Contents
Background
The Omnibus Transportation Employee Testing Act of 1991
Regulatory History
ANPRM
The Public Hearing on Breath Test Device Capability
The NPRMs
Summary of Comments
The Public Meeting
The National Airline Commission
The Existing Safety Problem
General Information and Definitions
The Effects of Alcohol
The Alcohol Problem--Generally
National Health Care Reform
Alcohol Misuse in the Transportation Industry
General
Aviation
Motor Carriers
FHWA Pilot Project
Rail
Transit
Pipeline
Legal Authority/Issues
Background
General
The Americans with Disabilities Act and DOT Drug and Alcohol Testing
The Family and Medical Leave Act of 1993
Overview of the Operating Administrations' Final Rules
Purpose
Applicability
Alcohol Testing Procedures
Definitions
Preemption of State and Local Laws
Other Requirements Imposed by Employers
Requirement for Notice
Starting Date for Alcohol Testing Programs
Prohibitions
Alcohol Concentration
On-duty Use
Pre-duty Use
Use Following an Accident
Refusal to Submit to a Required Alcohol Test
Tests Required
General
Pre-employment Testing
Post-accident Testing
Random Testing
Consortia/Random Testing Pools
Random Alcohol Rate Performance Standard
Implementation Issues
Reasonable Suspicion Testing
Behavior and Appearance
Return-to-duty Testing
Follow-up Testing
Retesting of Covered Employees with an Alcohol Concentration of 0.02
or Greater, but Less than 0.04
Handling of Test Results, Record Retention, and Confidentiality
Retention of Records
Reporting of Results in a Management Information System
Access to Facilities and Records
Consequences for Employees Engaging in Alcohol-Related Conduct
Removal from Safety-sensitive Function/Required Evaluation and
Testing
Other Alcohol-related Conduct
Use of Back Extrapolation
Alcohol Misuse Information, Training, and Referral
Employer Obligation to Promulgate a Policy on Alcohol Misuse
Self-Identification/Peer-Referral Programs
Training for Supervisors
Employee Training
Referral, Evaluation, and Treatment
Other Issues
Flexible Approaches
Motor Carrier Safety Assistance Program (MCSAP Option)
Multi-Agency Coverage
International Issues
Regulatory Analyses and Notices
General
Paperwork Reduction Act
Appendix A to Common Preamble--Bibliography
Background
The Omnibus Transportation Employee Testing Act of 1991
On October 28, 1991, President Bush signed the Omnibus
Transportation Employee Testing Act of 1991 (``the Act''). (Pub. L.
102-143, Title V). The Act requires the Department to prescribe
regulations within one year that require testing of safety-sensitive
employees in the aviation, highway, rail, and transit industries and in
the Federal Aviation Administration for use, in violation of law or
Federal regulation, of alcohol and drugs listed in the Controlled
Substances Act. The Act preempts inconsistent State and local laws,
except certain State criminal laws, in the aviation, highway, and
transit industries and requires that the regulations be consistent with
U.S. international obligations. It specifically mandates, among other
things, privacy in collection techniques, incorporation of the
Department of Health and Human Services' (DHHS) mandatory guidelines
for drug testing and comparable safeguards for alcohol testing,
quantified confirmation of any positive screening result, collection of
split samples of body fluid specimens, confidentiality of test results,
and scientifically-random selection of employees to be tested. It
requires pre-employment, random, post-accident, and reasonable
suspicion testing; periodic testing is discretionary. Regulations
prescribed under the Act must include provisions for the identification
of, and opportunity for treatment for, covered employees in need of
assistance due to misuse of alcohol or illegal use of controlled
substances. The Act states that current Federally-mandated programs are
unaffected by the new statutory requirements.
At the time of enactment of the Act, several OAs already had
implemented programs designed to address the use and misuse of drugs
and alcohol by transportation workers, and the Department had published
an ANPRM to explore whether additional steps were warranted concerning
alcohol misuse by employees in the DOT-regulated transportation
industries (54 FR 46326, November 2, 1989). In 1988, six of the
Department's OAs--FAA; FHWA; FRA; FTA (formerly the Urban Mass
Transportation Administration, (UMTA)); USCG; and RSPA--issued drug
testing rules for members of their regulated industries (53 FR 47002
et. seq., Nov. 21, 1988). (The FTA rule was vacated by a Federal
appellate court in January 1990 on the grounds that the agency lacked
statutory authority to issue nationwide standards requiring drug
testing.) The drug testing rules generally apply to persons performing
safety-sensitive functions in commercial transportation operations. The
Department also published in 1988, and revised in 1989, a Department-
wide drug testing procedures rule (49 CFR part 40) that governs testing
under all the OA rules (53 FR 47002, Nov. 21, 1988; 54 FR 49854, Dec.
1, 1989). As noted above, the Act requires certain changes to the
existing drug testing rules (e.g., it requires split samples and
extends coverage to persons requires to obtain a CDL, generally
intrastate truck and motorcoach operations under the FHWA rule). It
also directs FTA to issue a drug testing rule.
In addition to the requirements discussed above, the Act requires
alcohol and drug testing for safety-sensitive FAA employees. Air
traffic controllers are the largest group of employees subject to this
testing (they are already subject to drug testing under an existing DOT
policy). In addition, DOT employees and other Federal agency employees
in positions requiring a CDL are subject to coverage under the FHWA
rule. The Department will issue a DOT Order (an internal program
document) to conform the Department's drug testing program for its own
employees to the requirements of the Act and to implement a similar
alcohol misuse prevention program.
Regulatory History
ANPRM
During the drug testing rulemakings, we noted that, although
alcohol is a drug, the solution to the alcohol problem may be very
different from that concerning other drugs, such as cocaine or
marijuana, and we would address it in a separate rulemaking. For that
reason, with one exception, the OAs did not include alcohol among the
list of substances to be tested for under the drug testing regulations.
(The Coast Guard, which is not covered by this rulemaking, has
mandatory post-accident alcohol testing and authorized reasonable cause
(suspicion) alcohol testing. FRA had previously included alcohol in its
post-accident testing mandate and had authorized alcohol testing for
reasonable cause.)
On November 2, 1989, the Department published an advance notice of
proposed rulemaking (ANPRM) to solicit public comment on whether the
Department's existing regulatory requirements and programs were
sufficient to respond to the hazards of alcohol misuse in DOT-regulated
transportation industries and to determine what additional action, if
any, should be taken. The ANPRM set forth a number of options for
reducing alcohol misuse in DOT-regulated industries, if further action
was deemed necessary. Over 225 comments were filed in response to the
ANPRM; these comments were considered in developing the NPRMs.
The Public Hearing on Breath Test Device Capability
After the enactment of the Act, to enable better evaluation and
comparison of the capabilities of different alcohol testing methods,
the Department of Transportation conducted a public hearing on November
18, 1991, to obtain specific information from the manufacturers of
breath test devices. Our purpose was to examine the current or feasible
capabilities of equipment to handle the problems of testing in the
transportation industry, particularly verification of the identity of
tested individuals and the validity of the test result. At the hearing,
the Department noted that attempts to tamper with the test and refusals
to acknowledge the test result may be problems because an immediate
result is available.
The Department also indicated that it would need to ensure accurate
test results without adding prohibitive costs to any proposed program.
Representatives of eight manufacturers assured DOT officials that
existing technology can keep adequate, verifiable records of tests.
They claimed that they could incorporate safeguards against tampering
with adjustments to hardware and software, such as the assignment of a
serial number to each test. They pointed out, however, that currently
available equipment alone cannot provide an indisputable verification
procedure or replace trained human supervision of the testing process.
The Department believes that the testing procedures set forth in
the separate final rule establishing new alcohol testing procedures for
49 CFR part 40 published in today's Federal Register provide adequate
safeguards for breath testing in response to the above concerns.
The NPRMs
On December 15, 1992, the Department published eighteen separate
documents, including fourteen NPRMs and four ANPRMS, that proposed
programs in several DOT-regulated transportation industries to reduce
alcohol misuse and to amend existing industry drug testing programs (57
FR 59382 et. seq., December 15, 1992). These included: A common
preamble and an OST NPRM on alcohol testing procedures and conforming
drug testing changes (part 40), both of which were incorporated by
reference into the FAA, FHWA, FRA (also included drug changes), FTA,
and RSPA NPRMs proposing alcohol misuse prevention programs; FAA, FRA,
and FHWA ANPRMs on application of these requirements to foreign
operators in the United States; an FTA NPRM proposing an anti-drug
program for the transit industry; FAA, FHWA, FRA, RSPA, and USCG NPRMs
proposing the new MIS (FTA drug NPRM included its MIS proposal); an
FHWA NPRM proposing statutorily-mandated changes to its existing drug
rule, including extending coverage to intrastate truck and motorcoach
operations; and a DOT-wide ANPRM that sought comment on less costly
alternatives to the current industry random drug testing requirements,
particularly changes to the random drug testing rate. The alcohol
misuse prevention NPRMs proposed prohibitions on alcohol misuse,
related consequences, several types of alcohol testing, reporting and
recordkeeping requirements, dissemination of alcohol information,
supervisor training and referral of employees to a substance abuse
professional (SAP) for evaluation.
Summary of Comments
Since there are common requirements, bases and purposes for the
rules, each DOT organization (term includes OAs and OST) involved may
have relied upon comments submitted to the dockets of the other
participating DOT organizations in developing its final rule. Where a
DOT organization has relied upon a comment directed to the docket of
another DOT organization, it will make available a copy of that
comment. Comments addressing issues common to all of the OAs' alcohol
prevention programs generally are addressed throughout this common
preamble. Comments on OA-specific issues and the draft economic
analyses have been addressed in the preambles to the OA rules. Comments
on testing procedures, foreign application, drug testing rules and the
drug testing random ANPRM have been addressed in the preambles to those
documents.
Approximately 700 comments were filed in response to the NPRMs in
the various OA alcohol misuse prevention rule dockets. (Some commenters
filed identical comments to more than one DOT organization.) Commenters
included local, State and Federal governmental agencies, trade
associations, employers, employees, labor unions, consortia, medical
professionals, substance abuse professionals and individuals. Most of
the comments were filed by employers, followed by trade associations
and governmental bodies. The majority of the commenters had a mixed
reaction to the proposed alcohol misuse prevention programs and
suggested changes on a variety of issues. Some commenters applauded the
efforts of Congress and the Department to reduce accidents and save
lives by removing from our nation's transportation systems employees in
safety-sensitive positions who misuse alcohol. However, approximately
one-third of the commenters opposed the specific proposals and only a
small percent (less than 5 percent) were enthusiastic about them. A
significant number of those in opposition to this effort cited its high
cost unsupported by data indicating that there is a serious problem in
their industry. Other commenters did not believe that mandatory alcohol
testing will effectively deter or eliminate alcohol use among covered
employees. As discussed below, many of the requirements of these rules
are mandated by the Act and the Department has no authority to modify
or ignore them.
In addition to soliciting written comments, the Department held
three public hearings on part 40 and the OA alcohol misuse prevention
and anti-drug rules in Washington, DC; Chicago; and San Francisco in
February and March 1993. OST and all OAs, except USCG, which proposed
only MIS requirements, participated in these hearings. The hearings,
which ran for two days in each location, consisted of one day of
testimony on part 40 and general issues and a second day for breakout
sessions on OA concerns. Approximately eighty people presented
testimony at those hearings. (Some commenters made presentations at
more than one hearing.) Transcripts of all the hearings and any written
materials submitted at the hearings are available in the appropriate
rulemaking dockets. All comments received at those hearings have been
fully considered in developing the final rules.
The Public Meeting
In February 1993, the Department held a public meeting to
facilitate presentation and discussion of relevant information on
workplace random testing and its impact on drug use deterrence. Over 20
participants presented papers and sparked discussions that ranged from
mathematical models of drug testing rates and their impact on drug use
to program data from corporations using random drug testing as part of
a drug-free workplace strategy. The results of the meeting were
inconclusive. The participants presented no definitive data that
identified optimal random testing rates for achieving maximum
deterrence of drug use. Many corporate representatives expressed views
that favored reducing required random testing rates; however, they did
not support their views with specific data on the causal or correlative
relationship between random testing rates and drug use deterrence. The
discussions also covered the corollary issue of detection of drug
abusers who are not deterred by workplace drug prevention policies or
programs. These issues also are relevant to alcohol random testing
rates discussed later in this document.
The National Airline Commission
In April 1993, President Clinton established the National
Commission to Ensure a Strong Competitive Airline Industry (also known
as the National Airline Commission). Its charter was to review the
financial condition of the airline industry and to make recommendations
to assist the industry in recovering from the financial and operational
difficulties it had faced during the last several years. The National
Airline Commission met with industry, labor, and government
representatives in a number of public meetings before drafting its
final recommendations. Specific to this rulemaking, the Commission
stated that ``[n]ew pre-employment alcohol testing rules do not need to
be adopted, and any random alcohol testing of airline employees should
be at no more than a 10 percent rate.''
The Existing Safety Problem
General Information and Definitions
Throughout this document, we have generally relied on or referred
to the results of many studies concerning alcohol. Parenthetical
references to these studies are included in the text; their full names
are listed alphabetically in a bibliography in Appendix A. Copies of
these studies have been placed in OST rulemaking docket 46574. It is
important to note that the test data we have are not complete; often
the database includes only those tests that were performed. Post-
accident tests are conducted after some accidents, but not others,
depending upon current regulatory requirements, the availability of
testing personnel, and location and timing of accidents. When they are
conducted, they may occur hours after the accident (e.g., in the
railroad industry it takes an average of 5 hours before the post-
accident tests can be conducted). Also, data are not comparable among
the transportation modes, because of differences in reporting
requirements, databases, and time periods. In addition, the referenced
studies generally used different parameters and are therefore not
comparable to each other.
Many of the words relating to alcohol are used interchangeably in
our society, which may cause some confusion. In this document, we use
the terms ``driving while intoxicated'' (DWI) and ``driving under the
influence'' (DUI) to refer to the same thing: Violation of State and/or
Federal alcohol concentration standards defining intoxication. ``Zero
tolerance'' refers to an alcohol concentration standard of 0.00, or in
some cases, 0.01 or 0.02. Limits on current testing technology
establish the limit of detection at 0.02 concentration for accuracy and
precision. ``Impairment'' and ``under the influence'' refer to the
effect of alcohol ingestion on the performance of a safety-sensitive
function, without regard to a specific alcohol concentration.
The Effects of Alcohol
The potential effects of alcohol misuse are substantial in terms of
lives lost, injuries and environmental and property damage. Alcohol
misuse claims at least 100,000 lives annually, 25 times as many as all
illegal drugs combined. In 1992, 39,235 deaths occurred on our nation's
highways, of which 36 percent involved a legally intoxicated driver or
non-occupant (e.g., pedestrian), and another 9 percent involved a
driver or non-occupant with at least some alcohol (with an alcohol
concentration over 0.01). Alcohol is involved in 45 percent of total
highway fatalities. (National Highway Traffic Safety Administration,
``Traffic Safety Facts 1992--Alcohol'').
Ethanol (the psychoactive component of alcoholic beverages) is a
central nervous system depressant. It has been widely recognized for
years that consumption of alcohol can degrade performance of demanding
or delicate tasks. There is less agreement, however, about how much
alcohol must be ingested before a significant degradation of
performance occurs. Studies have indicated that the effects of alcohol
vary among individuals, and, even for a given individual, alcohol will
have varying effects depending on such factors as motivation, fatigue,
and previous experience with alcohol (Zero Alcohol, 1987; Ryder, 1981;
Landauer, 1983; Lister, 1983). One reason for the substantial variation
among individuals is that ingestion of a specified quantity of alcohol
by two people will not necessarily produce the same alcohol
concentration in each, even if they have the same body weight (Zero
Alcohol, 1987).
In one study, for example, it was found that a given body-weight-
adjusted dose of ethanol could produce a range of alcohol
concentrations of 0.036 to 0.095 (O'Neill, 1983). In addition, alcohol
appears to enter the blood stream at different rates in different
people (Zero Alcohol, 1987). In another study, subjects were given
controlled doses and had equal amounts of food in their system.
Nevertheless, the time required to reach the peak alcohol concentration
varied from 15 to 90 minutes after ingestion (Wilson, 1984).
There also are performance differences between individuals that are
unrelated to their blood alcohol concentration. It appears that highly
skilled professionals may be better able to compensate for the
physiological effects of alcohol than persons who are less skilled,
particularly at lower alcohol concentrations. In two studies comparing
the effect of alcohol on the performance of racing drivers and ordinary
drivers on a closed track, the skill of the ordinary drivers showed
some degradation at an alcohol concentration of 0.05, while the racing
drivers showed no impairment until they reached substantially higher
alcohol concentrations (Forney, 1961). Similarly, in a comparison of
nonprofessional and professional pilots at alcohol concentrations of
0.04, 0.08, and 0.12, the nonprofessionals made numerous errors in
tracking, while the professionals' tracking ability did not decrease
even at the highest alcohol concentration (Billings, 1972). The study
noted, however, that the professional pilots committed more procedural
errors than normal after alcohol consumption. Compounding factors, such
as fatigue and unexpected challenges, also are likely to affect results
in a real-world situation.
Most States have adopted an alcohol concentration of 0.10 as the
definition of intoxication in connection with laws imposing civil or
criminal penalties for driving under the influence for non-commercial
as well as for commercial operators. Some use it as a rebuttable
presumption of a violation; others as a per se violation. Ten states
have lowered their alcohol concentration standards to 0.08; and a
number of states have adopted or are in the process of considering
adoption of the existing 0.04 FHWA alcohol concentration standard for
commercial drivers established by previous rulemaking. States with
alcohol concentration standards for operating recreational vessels or
aircraft typically use 0.10.
As indicated above, however, a number of laboratory studies have
shown that performance on some tasks can begin to degrade at alcohol
concentrations well under 0.10 (Moskowitz, 1973; Drew, 1959; Landauer,
1983; NHTSA, 1988). Some studies have suggested that performance
degrades in a linear fashion, beginning with the lowest levels tested
(Moskowitz, 1985; Drew, 1959). Blood alcohol concentrations (BAC) lower
than 0.05 have been associated with increases in errors in tasks
requiring divided attention, and it appears that cognitive performance
is decreased for most individuals at BAC's of 0.04 or less (Zero
Alcohol, 1987; Evans, 1974). Low alcohol concentrations have also been
shown to affect a driver's stopping distance and to increase errors in
steering (Laurell, 1977). There is no definitive answer to how much the
risk of accident occurrence increases as a result of the performance
deficit, but some relationship can be assumed. Those OAs in the
Department that have set existing alcohol concentration standards for
transportation workers (FAA, FHWA, FRA and Coast Guard) generally have
used 0.04 as the prohibited concentration.
In its most recent edition of ``Fatality Facts,'' the Insurance
Institute for Highway Safety notes that ``even at BACs as low as 0.02%,
alcohol affects driving ability and crash likelihood. The probability
of a crash begins to increase significantly at 0.05% BAC and climbs
rapidly after about 0.08%. For drivers with BACs above 0.15% on weekend
nights, the likelihood of being killed in a single-vehicle crash is
more than 380 times higher than it is for nondrinking drivers.''
The Alcohol Problem--Generally
The National Institute on Alcohol Abuse and Alcoholism (NIAAA)
reported in 1987 that two of every three adults in the United States
drink, but 10 percent of those drinkers consume half of the nation's
beer, wine and liquor. The National Institute on Drug Abuse (NIDA)
reported that an estimated 17 million U.S. adults are alcoholics, which
is about six times higher than the number of cocaine users. (NIDA
study, 1989). While it is difficult to estimate the precise cost to
society from alcohol misuse, there is no doubt that the cost is
enormous. The potential effects of alcohol misuse are substantial in
terms of lives lost, personal injuries, property damage, business
losses (lost productivity, absenteeism, increased health care costs,
etc.) and environmental damage.
According to a Research Triangle Institute study performed for the
Department of Health and Human Services, the overall economic cost to
American society from alcohol misuse was $89.5 billion in 1980. This
amount represents direct costs, such as medical treatment, and indirect
costs, such as lost wages and reduced productivity. In 1987, the NIAAA
estimated the economic costs to society of alcohol misuse to be nearly
$117 billion a year, including $18 billion from premature deaths, $66
billion in lost productivity, and $13 billion for rehabilitation.
Assuming the base numbers are still the same, inflation presumably has
increased the cost in current dollars.
The National Academy of Sciences (NAS) recently released a study of
drug use in the American workforce. The study reviewed the existing
research literature on (1) the effects of drug and alcohol use on
workplace performance and productivity, (2) the effectiveness of
workplace interventions, and (3) the scope of alcohol and other drug
use. The study concluded that more epidemiological and longitudinal
research is needed and that the current research literature does not
provide definitive conclusions about the scope of use, the specific
effects of drug and alcohol use on work performance tasks, and the
effectiveness of workplace interventions such as drug and alcohol
testing and employee assistance programs. We believe that the existing
research literature supports the actions that we are taking here and
that data gathered as a result of these rules will provide useful
additional information concerning these issues.
National Health Care Reform
Secretary of Transportation Federico Pena recently set a goal of
reducing alcohol-related highway fatalities from 45 percent to 43
percent of total highway fatalities by 1997. He noted that alcohol-
related traffic fatalities decreased by 20 percent between 1990 and
1992 due to increased alcohol awareness among teenagers and tougher
enforcement measures that reduced impaired driving by repeat offenders.
Motor vehicle accidents are a major health problem. They are the
primary cause of death for the American population between 5 and 34
years of age, and account for half the total of injury deaths. More
people are injured or die in motor vehicle-related accidents each year
than from heart disease, cancer, and strokes combined. Alcohol
involvement is the single largest factor in motor vehicle deaths and
injuries, which as a whole cost the nation $14 billion in health care
costs each year; any reduction in impaired driving would directly
contribute to reducing health care and other economic costs. The
Department estimates that reducing highway alcohol-related fatalities
to 43 percent of total fatalities and reducing related injuries by a
proportionate amount would save 1,200 lives annually and save U.S.
taxpayers $282 million in health care costs annually. Obviously,
reducing alcohol-related fatalities and injuries in other
transportation industries would further reduce those costs.
The measures contained in these rules and the Department's
partnership with industry and State and local governments to educate
the public about impaired driving are part of a broad Department effort
to reduce accidents and injuries resulting from alcohol misuse in each
of the transportation industries, which will, in turn, reduce health
care costs under President Clinton's health care reform initiative.
Increased detection of alcohol misusers and their diversion into the
health care system could increase health care costs in the short term,
since individuals with serious alcohol problems tend to neglect health
care until intervention. This increase would be mitigated to a certain
extent by a decrease in alcohol-related absenteeism. However, long term
health care costs should decrease because early intervention prevents
more serious and more costly health problems later.
Alcohol Misuse in the Transportation Industry
General
The Department's previous alcohol misuse prevention efforts have
developed unevenly and vary across the transportation industries. The
existing OA rules focus on alcohol in terms of: Its effect on an
individual's medical qualifications; prohibitions against on-duty use;
operating while under the influence; use during defined pre-duty
periods; and sanctions for violations of the Federal regulatory scheme,
as well as sanctions for violations of State alcohol laws. Alcohol
testing, with limited exceptions, has been left to State enforcement.
(Current FRA rules require post-accident and authorize reasonable cause
testing. The FAA requires crewmembers to submit to tests upon request
by State and local officials and to furnish the results to the
Administrator. The Coast Guard also has existing requirements
concerning alcohol misuse, including some testing.) Each of the
following sections briefly describes the existing OA rules on alcohol
and contains available Departmental data on the alcohol problem in each
segment of the transportation industry.
Aviation
The current FAA regulations prohibit a person from acting or
attempting to act as an aircraft crewmember if he or she is under the
influence of alcohol, has consumed any alcoholic beverage within the
prior 8 hours, or has an alcohol concentration of 0.04 or greater. The
FAA may medically disqualify a pilot with a history of drug dependence,
alcoholism, or mental problems.
In 1987, the Department's Inspector General checked the National
Driver Register (NDR) against records in the Florida Department of
Motor Vehicles; it found that nearly 8,000 FAA-certified pilots in
Florida had been convicted of drunk-driving offenses. Recent
legislation allowed FAA and the rail industry to use the NDR to locate
and review individual driving records to screen qualifications of
airline pilots and locomotive engineers. The FAA was unaware of these
DUI convictions because the pilots had not reported them to the FAA as
required. The FAA then issued a DUI enforcement policy and a rule that
includes, among other matters, a process for examining driving records.
Pilots with 2 or more drug- or alcohol-related driving offenses within
3 years are subject to FAA certificate revocation action.
In 1991, the FAA began checking the NDR to identify pilot
certificate holders who had drunk-driving convictions. Of pilots
seeking medical recertification during the period May 1991 through May
1993, 5.79 percent had at least one DWI conviction reported. The total
number of pilots (for scheduled and non-scheduled airlines) who had one
or more DWI's was 4,386, or 6.4 percent. There is no research that
directly links impaired driving behavior to commercial aviation
performance; however, impaired driving behavior is often associated
with alcohol abuse and/or alcoholism.
There has never been an accident involving a large U.S. passenger
airline in which the probable cause was attributed to alcohol use.
However, in 1990, three Northwest Airlines pilots were convicted of
flying while intoxicated between Fargo, ND, and Minneapolis, MN. Two
hours after the flight ended, the crew captain's alcohol concentration
was found to be 0.13; he testified that he drank 20 rum and cokes the
night before the 6 a.m. flight. Starting in the early 1970's, the Air
Line Pilots Association and the major airlines, in cooperation with the
FAA, developed a program to identify alcoholic pilots, so that they
could be treated and, as appropriate, returned to duty. More than 1,500
pilots have been through this program, with a relapse rate of
approximately 10 percent. Since the program provides for stringent
surveillance of treated pilots, there has been no compromise of safety.
Nevertheless, the existence of such an extensive program and the
occurrence of the Northwest pilots incident demonstrate that the air
carrier industry is not immune to the problem of alcohol misuse.
The National Transportation Safety Board (NTSB) has collected the
following data concerning the relationship between alcohol and aviation
accidents: From 1975 through 1986, eleven part 135 carriers (all except
one were commercial air taxi cargo planes; the exception was a non-
scheduled charter carrier with a foreign crew) were involved in
accidents in which alcohol was determined to be a factor. As noted
above, there have been no part 121 or part 135 (large or air taxi/
commuter air carrier) accidents in which alcohol has been determined to
be a cause.
Virtually all commenters to the FAA docket claimed that, in light
of the current financial state of the airline industry, DOT should not
mandate an overzealous random alcohol testing program that is not
statistically justified. As we noted above, we are constrained by the
requirements of the Act. To the extent possible, we have tried to
provide flexibility to employers that will enable them to make cost-
conscious decisions for their specific circumstances. With respect to
our lack of data, it is difficult to know whether the lack of a large
U.S. passenger aircraft accident caused by alcohol is due to the fact
that it has never happened or because we have no required testing and
could not determine that alcohol was involved.
Motor Carriers
Currently, drivers found to be under the influence of alcohol or
drugs are disqualified from operating a commercial motor vehicle (CMV).
FHWA regulations prohibit the use of alcoholic beverages within four
hours of reporting to work and also prohibit a driver from driving
while having any measurable alcohol concentration or any detected
presence of alcohol in his or her system. This effectively amounts to a
zero alcohol limitation for CMV operators. In addition, a driver will
not be considered physically qualified to drive a motor vehicle if,
among other things, the driver has no current clinical diagnosis of
alcoholism.
Accident statistics indicate that nearly half of the fatally
injured noncommercial motor vehicle drivers had a measurable amount of
alcohol in their blood (usually 0.10 or more) compared with about 15
percent of fatally injured drivers of medium and heavy trucks.
Moreover, as the chart below indicates, for those truck drivers who had
been drinking before an accident, the highest accident rate was among
those consuming the most alcohol. Drivers of heavy and medium trucks
with measurable alcohol concentrations are involved in about 750 fatal
crashes annually, along with another 7,700 crashes resulting in
personal injuries and 4,750 crashes involving only property damage
(Zero Alcohol, 1987).
------------------------------------------------------------------------
Percentage
of the 15%
Percentage of truck
of all drivers who
fatal truck had alcohol
accidents in their
blood
------------------------------------------------------------------------
No Truck Driver Use of Alcohol................ 85.0 N/A
AC=0.10 or more............................... 9.1 60
AC=0.04-0.10.................................. 2.7 18
AC=.03 or less................................ 3.2 21
------------------------------------------------------------------------
(Zero Alcohol, 1987) (FARS data tapes, 1982-1985) (AC means alcohol
concentration)
In 1990, the NTSB published the results of a study of alcohol (and
other drugs) used by CMV operators in fatal-to-the-driver, heavy truck
accidents. Thirteen percent of the fatally injured drivers tested
positive for alcohol. (Another 20 percent of the drivers tested
positive for other drugs.) We also know that the cost of accidents to
employers is substantial, over and above the lives lost, whether CMV
accidents are caused by alcohol or something else. The National Safety
Council estimates that an on-the-job accident is four times more costly
than one that occurs in a personal vehicle, with an average cost to
employers of $168,000 for a fatal accident and $6,900 for a non-fatal
accident. The impact of on-the-job accidents caused by alcohol on
employer costs is quite significant.
FHWA Pilot Project. The Act required the Secretary of
Transportation to conduct a pilot program for the purpose of testing
drivers on a random basis to determine if a driver has used alcohol or
a controlled substance in violation of law or federal regulation. The
pilot testing program was administered as part of the FHWA's Motor
Carrier Safety Assistance Program (MCSAP) and implemented in four
States for a period of one year. At the completion of the pilot
program, the Department will issue a report of the program, including
recommendations concerning the desirability and implementation of a
MCSAP-administered random testing program. FHWA began the
implementation of the required pilot project in Fiscal Year 1993
(October 1, 1993-September 30, 1994). (N.B.: the Fiscal Year for the
Federal government may differ from that used by other entities.)
Preliminary data from the pilot program show 88 breath test results of
0.02 alcohol concentration or greater out of 43,170 tests conducted
(0.2 percent). However, in two States (Minnesota and New Jersey)
submitting to the breath test was voluntary and from 5 to 10 percent of
drivers randomly selected declined to take a breath test.
Rail
Current FRA regulations prohibit on-the-job use of, possession of,
or impairment by, alcohol, or having an alcohol concentration of 0.04
or more, for employees covered by the Hours of Service Act. Workers who
report for duty under the influence can be identified, removed from the
workplace, and referred for assistance under Operation RedBlock or
other similar peer prevention substance abuse programs operated by the
railroad industry. The covered employee can be referred for assistance
by a peer, a supervisor or himself/herself.
As part of the post-accident testing conducted under its current
rules, FRA has gathered the following data. From February 1986, when
mandatory FRA post-accident blood testing for alcohol began, through
December 1992, 23 employees tested positive for alcohol (0.5 percent of
employees tested). However, the number of positive findings has
declined from 6 (1.0 percent of all persons tested) in 1989, to 1 (0.3
percent of all persons tested) in 1992. Since 1986, alcohol appears to
have played a causal role in 11 accidents/incidents involving four
deaths, three injuries, and property damage in excess of $3.3 million.
In one, the engineer tested positive at an alcohol concentration of
0.16, and alcohol was found by the NTSB to be a contributing factor to
the accident. The incident caused $1.58 million damage and the death of
the engineer. In another accident, eight injuries and $194,000 in
damages resulted, and a dispatcher tested positive at 0.15 alcohol
concentration. In a 1990 accident, an engineer tested positive with an
alcohol concentration of 0.05 after his train passed a stop signal and
collided with another train, resulting in one injury and nearly
$500,000 in property damage. In 1991, two brakemen were killed, one by
a train when struck during a switching operation and the other when he
fell from the side of a train. Post-mortem toxicology revealed alcohol
concentrations of 0.04 and 0.08, respectively.
Reasonable cause breath testing under the FRA program or pursuant
to railroad authority (triggered by rule violations, less serious
accidents and injuries, or reasonable suspicion) has produced the
following results: 11 of 348 persons so identified tested positive in
1986 (3.2 percent); 24 of 593 tested positive in 1987 (4.0 percent); 46
of 1005 tested positive in 1988 (4.6 percent); 31 of 973 tested
positive in 1989 (3.2 percent); 32 of 2662 tested positive in 1990 (1.2
percent); 37 of 2798 tested positive in 1991 (1.32 percent); and 30 of
2850 tested positive in 1992 (1.2 percent). FRA regulations define a
``positive'' breath test as one indicating an alcohol concentration of
0.02 or above. The significance of these results with respect to
measuring prevalence in the population is difficult to determine. It
should be expected that a higher percentage of reasonable suspicion
tests will be positive, since prohibited use or impairment had already
been identified or suspected.
Transit
FTA does not have any existing regulations concerning alcohol. Its
primary mission is to provide grants for the financing and improvement
of transportation systems. Many of FTA's grantees, however, are subject
to other Federal requirements on alcohol use. All commuter rail
operations funded by FTA, for example, are subject to FRA regulations.
Ferry operations that receive FTA funds are subject to USCG safety,
drug and alcohol regulations, as well as the FTA drug and alcohol
testing rules published today.
The need for alcohol testing of transit employees was highlighted
by a December 28, 1990, accident in Boston, Massachusetts, where a
transit operator, with an alcohol concentration above 0.10, crashed a
trolley car, injuring 33 people. In addition, the Senate Committee on
Commerce, Science, and Transportation's report on S. 676, No. 102-54
(May 2, 1991), noted that, in Philadelphia alone, transit operators
have tested positive for drug or alcohol use in six major accidents
between 1986 and 1990, involving at least 183 injuries and three
deaths. (Separate figures for drug and alcohol involvement were not
provided.) On August 28, 1991, a New York City Transit Authority
motorman later found to have an alcohol concentration of 0.21 crashed a
subway train resulting in 5 deaths and 171 injuries; this accident led
to the prompt passage of the Act. Following issuance of the 1988 FTA
anti-drug rulemaking, some industry members indicated that alcohol is a
more serious problem than drugs.
An FTA document entitled, ``Substance Abuse in the Transit
Industry,'' November 1991, was based upon a transit agency survey and
an employee survey. It revealed that responding transit managers
perceived alcohol as the major substance of misuse and that 58 percent
of the transit systems test for alcohol. Employee knowledge of coworker
alcohol misuse was extensive; about 70 percent of employees surveyed
had some knowledge, either through hearsay or by direct observation, of
alcohol impairment of colleagues in the workplace during the previous
year. About six percent of the safety-sensitive employees reported
alcohol use during or just before duty. Another 15 percent of the
safety-sensitive employees reported less frequent alcohol consumption,
but at a nearly similar volume as those employees noted above. When
comparing these data with those contained in the ``National Household
Survey on Drug Abuse: Population Estimates 1988'' and the comparable
1990 NIDA survey, it appears that reported alcohol use in the transit
industry is slightly lower than that reported for the general
population.
Pipeline
RSPA has no specific regulations on alcohol. It does have a general
regulation on health of pipeline workers at liquefied natural gas
plants. Pipeline operators must look for any physical condition that
would impair performance, including any observable disorder or
condition that is discoverable by a professional examination.
We have no specific data on alcohol-related accidents or lost
productivity data in this area; however, a number of the commenters in
the anti-drug rulemaking seemed to believe that alcohol is a more
pervasive problem than drugs in the pipeline industry. We also are
aware that many companies in the pipeline industry are known to have
alcohol prevention programs. We do not have statistics or data on the
prevalence of the problem in the industry, but we cannot assume that
pipeline workers are immune from the problem and must err on the side
of safety. The largest single cause of pipeline accidents is excavation
damage by people digging into pipelines (people not regulated by RSPA).
Legal Authority/Issues
Background
The following legal analysis was included in the common preamble to
the proposed DOT alcohol testing rules published in the Federal
Register of December 15, 1992, (See 57 FR 59389-59391) and is
republished with this document for ease of reference. Since that time,
there have been no significant case law developments to raise any
doubts concerning the Department's stated belief that existing legal
precedents support this rulemaking. To the contrary, the case law
addressing the constitutionality of alcohol and drug testing is even
more settled. Of particular note in this regard is a recent Federal
district court ruling that random testing of commercial motor vehicle
operators for alcohol and controlled substances pursuant to a one-year
pilot study in four States, as mandated by section 5(b) of the Omnibus
Transportation Employee Testing Act of 1991, Pub. L. 102-143, title V,
codified at 49 U.S.C. app. 2717 note, comports with the Fourth
Amendment of the U.S. Constitution and is not an unreasonable search
and seizure. Owner-Operator Independent Drivers Association, Inc. v.
Pena, No. 93-1427, U.S. District Court for the District of Columbia,
November 1, 1993.
General
The Omnibus Transportation Employee Testing Act of 1991 is a direct
statutory mandate for alcohol testing in the aviation, motor carrier,
rail, and transit industries. In addition to this authority, the
general safety authority relied on for issuing the drug testing rules
described above also provides a basis for issuing alcohol misuse
prevention rules by FAA, FHWA, FRA, and RSPA. Although the existing
case law addressing the constitutionality of employee alcohol testing
programs remains more sparse than that for drug testing, the existing
legal precedents support this rulemaking effort to require alcohol
testing in the regulated transportation industries.
Consistent with court findings in the area of government-mandated
drug testing of employees, alcohol testing mandated by the government
is considered a search within the meaning of the Fourth Amendment to
the U.S. Constitution. See, Schmerber v. California, 384 U.S. 757, 767-
768 (1966) (``compelled intrusions into the body for blood to be
analyzed for alcohol content'' must be considered a Fourth Amendment
search); Skinner v. Railway Labor Executives' Association, 489 U.S.
616-617 (1989) (``Subjecting a person to a breathalyzer test, which
generally requires the production of alveolar or `deep lung' breath for
chemical analysis * * * implicates * * * concerns about bodily
integrity and, like the blood-alcohol test * * * considered in
Schmerber, should also be deemed a search.'')
In deciding whether a particular search comports with Fourth
Amendment protections, courts must determine that under all the
particular circumstances the search itself is ``reasonable.'' As the
leading case on bodily fluid testing, Skinner, makes clear, issuance of
a warrant or the existence of probable cause or individualized
suspicion is not a minimum essential requirement in establishing the
reasonableness of a search under an administrative testing program.
In Skinner, the Supreme Court upheld regulations issued by the
Federal Railroad Administration governing drug and alcohol post-
accident and reasonable cause testing of railroad employees (49 CFR
part 219). The Court concluded that the testing procedures and methods
of procuring blood, breath, or urine for testing as set forth in
subparts C and D of the FRA regulations ``pose only limited threats to
the justifiable expectations of privacy of covered employees.'' 489
U.S. at 628. In specifically focusing on the privacy implications of
breath alcohol tests, the Court also pointed out that:
The breath tests authorized by subpart D of the regulations
[testing for reasonable cause] are even less intrusive than the
blood tests prescribed by subpart C [post-accident toxicological
testing]. Unlike blood tests, breath tests do not require piercing
the skin and may be conducted safely outside a hospital environment
and with a minimum of inconvenience or embarrassment. Further,
breath tests reveal the level of alcohol in an employee's
bloodstream and nothing more. Like the blood-testing procedures
mandated by Subpart C, which can be used only to ascertain the
presence of alcohol or controlled substances in the bloodstream,
breath tests reveal no other facts in which the employee has a
substantial privacy interest. * * * In all the circumstances, we
cannot conclude that the administration of a breath test implicates
significant privacy concerns. Id. at 625-626.
While the Court indicated that the collection of urine samples
requires employees ``to perform an excretory function traditionally
shielded by great privacy, [thus] rais[ing] concerns not implicated by
blood or breath tests[,]'' it pointed out that the FRA collection
procedures significantly reduced the degree of personal privacy
intrusion. Id. at 626. The Court also examined the overall privacy
expectations of covered railroad workers subject to the FRA testing
requirements. It concluded that these expectations ``are diminished by
reason of [`covered employees'] participation in an industry that is
regulated pervasively to ensure safety * * *'' Id. at 627.
By contrast, the Court found that the government's interests in
seeking to determine the cause of an accident or incident, deterring
alcohol and illegal drug use by rail employees, and safeguarding the
general public are compelling. Under these circumstances, the Court
held that alcohol and drug testing pursuant to the FRA regulations are
reasonable within the meaning of the Fourth Amendment. Also, the Court
found that the government's justification in testing for misuse of
alcohol--a legal substance--was entitled to no less weight than its
justification for testing for drugs, the possession of which is
unlawful. Thus, as the Court pointed out, the FRA-prescribed
toxicological tests were not designed ``to assist in the prosecution of
employees, but rather to prevent accidents and casualties in railroad
operations that result from impairment of employees by alcohol or
drugs.'' Id. at 621-622, 633 (quoting FRA regulations at 49 CFR
219.1(a)).
The alcohol testing requirements for transportation industry
workers published by each of the OAs in today's Federal Register are
consistent with the Court's views in Skinner. Given the overwhelming
public safety considerations associated with alcohol testing programs
and the limited degree of intrusion into individual privacy interests
engendered by the tests, the required testing programs would be
constitutionally permissible under the Fourth Amendment.
Also, the requirement that an employer perform random alcohol
testing that is performance-related, i.e,, related closely in time to
an employee's actual performance of safety-related duties, further
demonstrates the reasonableness of the rules for Fourth Amendment
purposes by ensuring that testing for misuse of alcohol is clearly
related to the employee's performance of these duties. With respect to
use of particular testing devices or methods, we note that, as a number
of courts have pointed out, the reasonableness of a testing program
does not necessarily turn on the existence of other alternatives that
might be less intrusive. See American Federation of Government
Employees v. Skinner, 885 F.2d 884, 897 (1989), cert. denied, 495 U.S.
923-924 (1990).
The lack of a demonstrated substance abuse problem among the
workforce in a particular industry should not, of itself, pose
insurmountable constitutional impediments to a testing program for that
workforce. This point was made clear by the Supreme Court in National
Treasury Employees Union v. Von Raab, 489 U.S. 656, 674-675 (1989),
which was decided the same day as Skinner. In Von Raab, the Court
upheld urinalysis testing for illegal drugs of U.S. Customs Service
employees slated for promotions into positions that involved either
interdicting illegal drugs or carrying a firearm. Despite the
Commissioner of Customs' stated belief that ``Customs is largely drug-
free,'' the Court concluded that there was little reason to suspect
that the Customs Service was ``immune'' from society's pervasive drug
abuse problem and held that the testing program was constitutionally
defensible as a means to ensure that employees promoted to these
sensitive positions are drug-free. Id., at 660, 674. It stated that the
government does not have to first establish that a specific industry
has a problem. (``It is sufficient that the government have a
compelling interest in preventing an otherwise pervasive societal
problem from spreading through the particular context.'') Id. note 3 at
675.
Skinner and Von Raab established the analytical framework for
courts to resolve constitutional challenges to various employee
substance abuse testing programs. Not surprisingly, Federal courts
reviewing anti-drug abuse regulations issued by the Department have
relied extensively on these two decisions in upholding drug testing of
safety- and security-sensitive workers in industries regulated by the
Department. See, Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990),
cert. denied, 111 S.Ct. 954 (1991) (upholding constitutionality of
Federal Aviation Administration regulations requiring random drug
testing of flightcrew members, maintenance personnel, and other
categories of employees in the commercial aviation industry);
International Brotherhood of Teamsters v. Department of Transportation,
932 F.2d 1292 (9th Cir. 1991) (upholding constitutionality of Federal
Highway Administration regulations requiring random, biennial, pre-
employment and post-accident drug testing of commercial motor vehicle
drivers operating in interstate commerce); Railway Labor Executives'
Association v. Skinner, 934 F.2d 1096 (9th Cir. 1991) (upholding
constitutionality of Federal Railroad Administration's regulations
requiring random drug testing of railroad workers in safety-sensitive
positions); International Brotherhood of Electrical Workers v. Skinner,
913 F.2d 1454 (9th Cir. 1990), and United Steelworkers of America v.
Skinner, 768 F. Supp 30 (D. RI 1991)(upholding constitutionality of
Research and Special Programs Administration's regulations requiring
random, pre-employment, and post-accident drug testing of safety-
sensitive employees engaged in natural gas, liquefied natural gas, and
hazardous liquid pipeline operations.) See also, Transportation
Institute v. Coast Guard, 727 F. Supp. 648 (D.D.C. 1989) (upholding
constitutionality of Coast Guard regulations requiring pre-employment,
periodic, post-casualty, and reasonable cause drug testing for merchant
marine personnel; however, regulations requiring random drug testing of
all vessel crewmembers were found to violate the Fourth Amendment
because the safety-sensitive duties performed by this entire class of
employees was not evident. Although the court noted that random testing
for employees could be constitutionally acceptable, it held that the
Coast Guard had not adequately described the safety-sensitive functions
of the covered employees to allow the court to establish the necessary
nexus. The missing safety nexus was established in a subsequent Coast
Guard final rule reimplementing random drug testing). Even pre-Skinner
and Von Raab court decisions addressing the constitutionality of
various employee alcohol testing programs have concluded that such
testing comports with the Fourth Amendment. Thus, a State regulation
requiring jockeys to submit to mandatory warrantless breath alcohol
tests on each racing day was found to be constitutionally permissible.
Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.), cert. denied, 479 U.S.
986 (1986). Similarly, alcohol and drug testing during a pre-employment
physical examination, work-related examination, return to work after
unscheduled absence, or on the basis of reasonable suspicion or
involvement in an accident or incident was upheld in the case of
transit employees directly involved in the operation, maintenance, and
decisionmaking of a public transit system. Amalgamated Transit Union,
Local 933 v. City of Oklahoma City, 710 F. Supp. 1321 (W.D. Okla.
1988). Accord, Amalgamated Transit Union, Division 1279 v. Cambria
County Transit Authority, 691 F. Supp. 898 (W.D. Pa. 1988) (mandatory
drug and alcohol testing during annual physical examination does not
violate Fourth Amendment).
Also, several more recent Federal court decisions upheld employee
alcohol testing in the wake of Skinner. Thus, in Transport Workers
Union, Local 234 v. Southeastern Pennsylvania Transportation Authority,
863 F.2d 1110 (3d Cir. 1988), vacated and remanded, 492 U.S. 902
(1989), aff'd on remand sub nom. United Transportation Union v.
Southeastern Pennsylvania Transportation Authority, 884 F.2d 709
(1989), the U.S. Court of Appeals for the Third Circuit upheld, inter
alia, random breath testing of transit operating employees. See also,
Tanks v. Greater Cleveland Regional Transit Authority, 930 F.2d 475
(6th Cir. 1991) and Holloman v. Greater Cleveland Regional Transit
Authority, 741 F. Supp. 677 (N.D. Ohio 1990), aff'd, 930 F.2d 918 (6th
Cir. 1991) (upholding transit authority's drug and alcohol testing
program requiring testing of blood, saliva, and urine in the face of
challenges by two bus drivers subjected to random, post-accident, and
periodic testing); Moxley v. Regional Transit Services, 722 F. Supp.
977, 980 (W.D. NY 1989) (upholding constitutionality of transit
authority's drug and alcohol testing program and noting that ``the
Government's interest in the efficient and proper operation of the
workplace is at a zenith where public's [sic] lives depend on the
reliable and sober performance of Government employees'').
Consistent with the Supreme Court's analysis in Skinner and Von
Raab and lower court decisions, if the Congress determines that there
is a need for properly-administered alcohol testing to ensure that
employees in transportation industries are not adversely affected by
alcohol while performing safety-sensitive functions, that need would
outweigh the privacy interests of these employees and, thus, would be
constitutionally permissible.
The Americans with Disabilities Act and DOT Drug and Alcohol Testing
The Americans with Disabilities Act of 1990 (ADA) (Pub. L. 101-36)
does not, in any way, preclude or interfere with employers' compliance
with the Department's new or existing drug and alcohol testing
regulations. However, title I of the ADA, which prohibits
discrimination against a ``qualified individual with a disability,''
may affect the personnel actions an employer might wish to take with
respect to some individuals who test positive for alcohol or drugs or
otherwise violate the prohibitions of the Department's drug and alcohol
rules.
Title I covers employers who have fifteen or more employees for
more than 20 calendar weeks in a year (section 101(5)(A)). (Until July
26, 1994, only employers with 25 or more such employees are covered.)
Covered employers may not discriminate against a qualified individual
with a disability with respect to applications, hiring, advancement,
discharge, compensation, or other terms, conditions or privileges of
employment (section 102(a)).
Before discussing the effect title I may have on employer personnel
actions following a positive DOT-mandated drug or alcohol test or other
violations of DOT drug and alcohol rules, it is important to note the
specific ADA provisions that address DOT drug and alcohol rules. The
ADA specifically authorizes employers covered by DOT regulations to
require their employees to comply with the standards established in
those regulations, including complying with any rules that apply to
employment in safety-sensitive positions as defined in the DOT
regulations. (section 104(c)(5)(C)). By authorizing employers to
require employees to comply with the standards in DOT rules, this
provision authorizes compliance not only with testing provisions of the
rules but also of other drug and alcohol-related provisions that affect
safety-sensitive employees (e.g., pre-duty abstinence, on-the-job use).
The legality under the ADA of employer compliance with DOT drug and
alcohol requirements other than those concerning testing is underlined
by several other provisions of title I. An employer may prohibit the
use of drugs and alcohol in the workplace, may require that employees
not be under the influence of alcohol or be engaging in the illegal use
of drugs in the workplace, and may require that employees conform to
the requirements of the Drug-Free Workplace Act (Pub. L. 100-690, title
V, subtitle D) (section 104(c)(1-3)).
Concerning drug and alcohol testing and its consequences, the
statute further provides that nothing in Title I shall be construed to
encourage, prohibit, restrict, or authorize the otherwise lawful
exercise by entities subject to the jurisdiction of the Department of
Transportation of authority to (1) test employees of such entities in,
and applicants for, positions involving safety-sensitive duties for the
illegal use of drugs and for on-duty impairment by alcohol; and (2)
remove such persons who test positive for illegal use of drugs and on
duty-impairment by alcohol pursuant to paragraph (1) from safety-
sensitive duties in implementing subsection (c). (Subsection (c)
includes the statutory language cited above.) (section 104(e)). These
ADA provisions clearly specify that the ADA does not interfere with the
compliance by covered employers with DOT regulations concerning drug
and alcohol use, including requirements for testing and for removing
persons who test positive from safety-sensitive functions. Under the
ADA, an employer is not viewed as ``discriminating'' for following the
mandates of DOT drug and alcohol rules.
In considering the effects on the personnel actions that employers
choose to take after a safety-sensitive employee tests positive for
drugs or alcohol or otherwise violates DOT drug or alcohol rules, it is
important to note that the ADA's prohibition of employment
discrimination applies only with respect to a ``qualified individual
with a disability.'' The ADA specifically provides that an employee or
applicant who is currently engaging in the illegal use of drugs is not
a ``qualified individual with a disability'' (section 104(a)). The ADA
does not protect such an employee from adverse personnel actions. For
purposes of the ADA, the drugs that trigger this provision are those
the use, possession or distribution of which is prohibited by the
Controlled Substances Act (section 101(6)). The five drugs for which
DOT mandates tests fit this definition (alcohol is not a drug covered
by the Controlled Substances Act).
What does ``currently engaging'' in the illegal use of drugs mean?
According to the Equal Employment Opportunity Commission (EEOC), whose
rules carry out Title I, the term ``currently engaging'' is not
intended to be limited to the use of drugs on the day of, or within a
matter of days or weeks of, the employment action in question. Rather,
the provision is intended to apply to the illegal use of drugs that has
occurred recently enough to indicate that the individual is actively
engaged in such conduct. (56 FR 35745-46, July 26, 1991). It is clear
that an individual who has a positive result on a DOT-mandated drug
test is currently engaging in the illegal use of drugs. Therefore,
under Title I, an employer may discharge or deny employment to an
individual who has a positive result on a DOT-mandated drug test.
This provision that an individual who is currently engaging in the
illegal use of drugs is not a ``qualified individual with a
disability'' does not apply, of course, if the individual is
erroneously regarded as engaging in the illegal use of drugs. In
addition, if an individual, even a former user of illegal drugs, is not
currently engaging in the illegal use of drugs and (1) has successfully
completed a supervised rehabilitation program or otherwise has been
successfully rehabilitated, or (2) is participating in a supervised
rehabilitation program, the individual can continue to be regarded as a
``qualified individual with a disability,'' if the individual is
otherwise entitled to this status (section 104(b)). An employer may
seek reasonable assurance that an individual is not currently engaging
in the illegal use of drugs (including requiring a drug test) or is in
or has completed rehabilitation. Some employers (EEOC uses the example
of a law enforcement agency) may also be able to impose a job
qualification standard that would exclude someone with a history of
drug abuse if it can show that the standard is job-related and
consistent with business necessity (56 FR 35746, July 26, 1991).
Unlike the situation with respect to the current use of illegal
drugs, the use of alcohol contrary to law, Federal regulation, or
employer policy does not deprive an individual of status as a
``qualified individual with a disability'' that he or she would
otherwise have under title I. An individual is protected by title I,
however, only if the individual has a disability in the first place.
(This is also true with respect to a former drug user or any other
individual who seeks the protection of the ADA.) To have a disability,
an individual must have a ``physical or mental impairment that
substantially limits one or more major life activities of such
individual, a record of such impairment, or being regarded as having
such an impairment'' (section 1(2)). While, as the EEOC notes in its
title I regulation, ``individuals disabled by alcoholism are accorded
the same protections accorded other individuals with disabilities'' (56
FR 35752, July 26, 1991), not all individuals who use alcohol in
violation of law, Federal regulation, or employer policy are ``disabled
by alcoholism.''
The courts interpreting section 504 of the Rehabilitation Act of
1973 (with which ADA employment provisions are intended to be
consistent) have concluded that alcoholism can be a disability which
may call for reasonable accommodation. See, e.g., Walker v. Weinberger,
600 F. Supp. 757 (D.D.C., 1985); Tinch v. Walters, 765 F.2d 599 (6th
Cir., 1985); McKelvey v. Walters, 596 F. Supp. 1317 (D.D.C., 1984);
Anderson v. University of Wisconsin, 665 F. Supp. 1372 (W.D. Wis.,
1987), aff'd 841 F.2d 737 (7th Cir., 1988); Richardson v. Postal
Service, 613 F. Supp. 1213 (D.D.C., 1985); Sullivan v. City of
Pittsburgh, 811 F.2d 171 (3rd Cir., 1987).
The logic of the ADA, and EEOC's regulatory provisions implementing
the statute, suggest that, in determining whether an employee or
applicant who has a positive result on a DOT-mandated alcohol test or
otherwise violates a DOT alcohol rule is disabled by alcoholism, the
employer would answer two questions. First, does the individual have a
physical or mental impairment; e.g., is the individual an alcoholic?
(People who test positive for alcohol are not necessarily alcoholic.)
This question would probably have to be answered with the assistance of
a physician or substance abuse professional. Second, if the individual
is an alcoholic, does this impairment substantially limit a major life
activity or is it (even erroneously) regarded as substantially limiting
a major life activity? This question would be answered on a case-by-
case basis, following EEOC's guidance (see 56 FR 35740-44, July 26,
1991). Under DOT's alcohol prevention rules, these determinations will
be made by or in cooperation with the substance abuse professional that
the rules require to be involved following a positive test or rule
violation.
The determination of whether an individual is a qualified
individual with a disability is made in two steps: (1) Whether the
individual has the appropriate education, experience, skills, and
licenses, and meets the other prerequisites of the position; and (2)
whether the individual can perform the essential functions of the job
desired or held with or without reasonable accommodation. Essential
functions are the functions that the individual holding the position
must be able to perform unaided or with reasonable accommodation.
Several factors are considered in determining whether a job function is
essential, including whether the employer actually requires employees
in this position to perform the function, whether the position exists
to perform the function, whether there are other employees who could
perform the function, and whether there is a high degree of expertise
or skill required to perform the function.
If the individual is qualified and determined to be disabled by
alcoholism, then the employer may not discriminate against the
individual on the basis of his or her disability and, if job
performance and behavior are not affected by alcoholism, must make
``reasonable accommodations'' to the individual's known physical or
mental limitations, unless the employer can demonstrate that doing so
would impose an ``undue hardship'' on the employer's business.
The selection of an appropriate ``reasonable accommodation'' is
done on a case-by-case basis, as EEOC guidance provides (see 56 FR
35744, July 26, 1991). Reasonable accommodation for an individual
disabled by alcoholism could include such actions as referral to an
Employee Assistance Program or other rehabilitation program, provision
of rehabilitation services, and giving an employee sufficient time to
demonstrate that rehabilitation had been successful. See, e.g.,
Washington v. Department of the Navy, 30 M.S.P.R. 323 (1986); Swafford
v. Tennessee Valley Authority, 18 M.S.P.R. 481 (1983).
Even when an individual is disabled by alcoholism, however, the
employer is not required to provide a reasonable accommodation that
creates an ``undue hardship.'' Undue hardship involves significant
difficulty or expense in, or resulting from, providing an
accommodation. EEOC describes an undue hardship as ``an accommodation
that would be unduly costly, extensive, substantial or disruptive, or
that would fundamentally alter the nature or operation of the
business.'' (Id.) This concept takes into account the financial
resources of the employer (e.g., an accommodation that would be
reasonable for a large business may be an undue hardship for a small
business). But the concept is not limited to financial difficulty. For
example, if a small trucking company determined that the accommodation
that one of its drivers needed for an alcoholism-related disability was
lengthy in-patient rehabilitation, the company not only might find the
accommodation beyond its financial resources but also too disruptive of
its operations (i.e., a temporary replacement would have to be hired or
the work of the firm be reduced significantly).
Under title I, an employer may hold an employee who engages in the
illegal use of drugs or who is an alcoholic to the same qualification
standards for employment or job performance or behavior as it holds
other employees, even if any unsatisfactory performance or behavior is
related to the drug use or alcoholism of the employee (Section
104(c)(4)). For example, if, as the result of alcoholism, an employee
is chronically late or absent, or makes frequent job errors, the
employee would be subject to personnel action on the same basis as any
other employee who exhibited similar behavior for other reasons.
(However, if the alcoholic employee were subjected to personnel actions
that were not used against non-alcoholic employees who were chronically
late or absent, or made frequent job errors, then the alcoholic
employee might have a cause of action under the ADA.) The employer is
not precluded from accommodating this alcoholic employee, but is not
required to do so.
It should also be pointed out that the ADA does not preclude an
employer from disciplining or dismissing an employee who commits a
violation of the employer's conduct and performance standards, even if
the individual is an alcoholic or has another disability. For example,
a violation of a DOT operating administration's alcohol misuse rules
(e.g., a test demonstrating a prohibited alcohol concentration) could
be a violation of the employer's performance and conduct rules, for
which the employer's policy could call for the employee's dismissal.
This result would not violate the ADA.
There are also situations in which meeting qualification standards
of DOT safety rules, or having a valid license or certificate from a
DOT operating administration, is an essential job qualification. If a
truck driver does not meet FHWA qualification standards to obtain a
Commercial Driver's License from a State, or if a pilot does not
qualify for an FAA medical certificate, that individual is not a
``qualified'' individual with a disability, even if the reason for the
failure to meet DOT qualifications is a condition that an employer
might be required to accommodate under the ADA. The legislative history
of the ADA specifically recognizes this special status for DOT
qualification standards (see Senate Report 101-116 at 27, August 30,
1989).
Another issue that has been raised in context of the relationship
between the ADA and alcohol testing concerns whether an alcohol test is
a ``medical examination.'' Non-regulatory guidance issued by the EEOC
suggests that ``a test to determine an individual's blood alcohol level
would be a `medical examination' and only could be required by an
employer in conformity with the ADA.'' It should be pointed out that
this statement does not, on its face, apply to breath testing (or other
methods that do not involve blood samples) for alcohol. The EEOC has
not determined whether it views breath testing for alcohol as a
``medical examination.''
The Department of Transportation takes the position that alcohol
testing under the program required by these rules is not properly
viewed as a required medical examination. It is not the collection of a
breath or body fluid sample that makes a test ``medical'' in nature.
The tests in question are solely for the purpose of determining whether
an employee has violated a DOT-mandated safety requirement. The tests
are not used for any diagnostic or therapeutic purpose. They are not
intended to ascertain whether an employee has any medical condition,
and they will not be used for such a purpose. Under these
circumstances, the policies underlying the ADA provisions on medical
examinations do not apply. Because of the uncertainty that may be
created by the EEOC guidance, however, it is useful to consider the
implications of regarding alcohol tests as ``medical examinations.''
(The Department is working with the EEOC to resolve this uncertainty.)
Even if alcohol tests are considered to be ``medical examinations''
for ADA purposes, the effects on compliance with DOT-mandated alcohol
testing would be minimal. ``Medical examinations'' are permitted by the
ADA if made after a conditional offer of employment. The pre-employment
testing approach set forth in the rules clearly fits this model. For
this reason as well as for reasons of efficiency, the Department
believes that conducting pre-employment testing after an offer of
employment, but before the first performance of a safety-sensitive
function, has much to recommend it. In addition, EEOC has stated to the
Department that, because of the statutory requirement in the Omnibus
Transportation Employee Testing Act of 1991 for pre-employment testing,
EEOC does not object to pre-offer alcohol testing under the DOT rules
mandated by the statute. Other types of testing mandated by these
rules, such as reasonable suspicion, post-accident, and random testing,
are likewise acceptable under the ADA. (See 29 CFR 1630.15(e), which
makes compliance with the requirements of Federal law or regulation a
defense to an allegation of discrimination under Title I of the ADA.)
Congress passed the Omnibus Act more than a year after it passed the
ADA, and the former statute's specific mandates for various types of
testing clearly, as a matter of statutory interpretation, would prevail
over any contrary inferences anyone would attempt to draw from the more
general provisions of the latter.
A related issue concerns the confidentiality of the records of
alcohol tests. To the extent that an alcohol test is regarded as a
medical examination, the records of the test would be ``treated as a
confidential medical record'' under the ADA (see Section 102(c)(3)(B)
of the ADA). Under this provision, records of a medical examination are
required to be kept in a separate medical file. The purpose of any
requirement for confidentiality of a medical record is to safeguard the
employee's right of privacy with respect to personal medical
information. An employee may, of course, waive such a right. (As a
general matter, medical confidentiality provisions allow a patient to
permit medical information to be provided to third parties.) The DOT
rules, by requiring the employee to consent, in writing, to the
provision of test records to subsequent employers or third parties, are
fully consistent with normal medical confidentiality waiver practices
and with the ADA. It would clearly be anomalous to view a medical
records confidentiality provision as prohibiting an employee from
voluntarily agreeing that a previous employer, or physician, could send
a medical record to a current employer or physician.
The Family and Medical Leave Act of 1993
The Family and Medical Leave Act of 1993 (FMLA) provides certain
protections for employees with ``serious health conditions.'' These
protections include time off for treatment of these conditions and
reinstatement in the employee's position or an equivalent position.
Under Department of Labor (DOL) regulations implementing FMLA,
``treatments for * * * substance abuse are serious health conditions if
all conditions of the regulation are met'' (29 CFR 825.114(c)). The
inclusion of substance abuse treatment under the DOL regulations has
raised some concerns about the potential effect of FMLA requirements on
DOT drug and alcohol testing requirements.
As is the case with the ADA, the FMLA does not conflict with DOT
drug and alcohol rules. FMLA requirements do not prevent an employer
from testing employees as required by DOT rules; nor do they excuse
employees from testing requirements or prohibitions on the use of drugs
or the misuse of alcohol. They do not interfere with DOT's requirement
that an individual who tests positive may not perform safety-sensitive
functions again until the conditions established by DOT rules have been
met. (We would point out that, just as every employee who tests
positive for alcohol or drugs does not necessarily have a
``disability'' for ADA purposes, such an employee does not necessarily
have a ``serious health condition'' for FMLA purposes.)
DOT drug and alcohol rules do not prescribe what personnel actions,
if any, an employer may take with respect to an individual who tests
positive. In certain circumstances, Federal law (e.g., the ADA), State
law, or labor-management agreements may constrain the discretion that
employers would otherwise exercise with respect to such personnel
actions. The FMLA may create additional constraints in some situations.
The scope of additional constraints on employer personnel actions
stemming from the FMLA is limited. The statute applies only to
employers with 50 or more employees. The statute's protections apply
only to employees who work for such an employer at least 1250 hours
during a 12-month period. DOL's rules establish a number of procedural
requirements that employees must meet to avail themselves of the FMLA's
protections. DOL also sets some substantive limits on the applicability
of FMLA protections to treatment for substance abuse:
Treatment of substance abuse may also be included, such as where
a stay in an inpatient treatment facility is required. On the other
hand, absence because of the employee's use of the substance,
without treatment, does not qualify for leave. It should be pointed
out that the inclusion of substance abuse as a ``serious health
condition'' does not prevent an employer from taking employment
action against an employee who is unable to perform the essential
functions of the job--provided the employer complies with the ADA
and does not take action against the employee who has exercised his
or her right to take FMLA leave for treatment of that condition. (58
FR 31799; June 4, 1993).
The Department will work with DOL to resolve any questions that
arise concerning the relationship of DOT drug and alcohol testing
requirements and FMLA requirements.
Overview of the Operating Administrations' Final Rules
Purpose
The OAs covered by the Act and RSPA are establishing alcohol misuse
prevention programs designed to help prevent accidents and injuries
resulting from the misuse of alcohol by employees who perform safety-
sensitive functions in their industries. Generally, the OA rules
prohibit any alcohol misuse that could affect performance of a safety-
related function, including (1) Use on the job; (2) Use during the four
hours (in most cases) before performance of a safety-sensitive
function; (3) Having prohibited concentrations of alcohol in the system
while performing safety-sensitive functions; (4) Use during the 8 hours
following an accident if the employee's involvement has not been
discounted as a contributing factor in the accident or until the
employee tests below 0.02; and (5) Refusal to take a required alcohol
test. The rules require pre-employment (except for RSPA), reasonable
suspicion, random (except for RSPA), post-accident, return-to-duty and
follow-up testing for alcohol. The rules also establish a performance
standard for adjusting the initial 25 percent random alcohol testing
rate for each transportation industry (except for RSPA). Published
elsewhere in today's Federal Register is a proposal to establish a
somewhat different performance standard for adjusting the random drug
testing rate for each transportation industry.
The part 40 procedural final rule published elsewhere in this
Federal Register provides for two tests to ensure accuracy: A screening
and a confirmation test. It provides more flexibility to use different
testing technologies for screening tests than we had proposed. However,
until additional devices can be evaluated and approved as meeting DOT
precision and accuracy criteria and procedures for their use are
established, the screening tests must be conducted using breath testing
devices on the NHTSA CPL, which includes devices with and without
printers. Evidential breath testing devices that provide printed
results and sequential numbering of tests must be used for confirmation
tests. We are separately proposing to permit blood testing in
reasonable cause and post-accident situations where an EBT is not
readily available. The primary purpose of the testing provisions is to
deter and detect misuse of alcohol.
Following a finding that an employee has misused alcohol, as
determined through testing or other means, the rules generally require
the employee's removal from safety-related functions and provide a
bifurcated system of consequences:
(1) Following a determination that the employee has violated
prohibitions in these rules, the employer must remove the employee from
and cannot return the employee to a safety-sensitive function until, at
a minimum,
(a) The employee undergoes evaluation, and where necessary,
treatment,
(b) A substance abuse professional determines that the employee has
successfully complied with any recommended course of treatment, and
(c) The employee tests at less than 0.02 on a return-to-duty test.
(2) An employee with an alcohol concentration of 0.02 or greater
but less than 0.04 is not permitted to perform safety-sensitive
functions for
(a) A minimum of eight hours (except FHWA), or
(b) Until a retest shows that the employee's alcohol concentration
has dropped below 0.02.
The rules also impose reporting and recordkeeping requirements and
provide for alcohol misuse information for employees, supervisor
training, and referral of employees to a substance abuse professional
(SAP) for evaluation.
There are some differences among the OA final rules. For example,
some OAs have regulatory authority over employers/companies only;
others have regulatory authority over employees. Also, employees
holding a license or certificate may be subject to agency action
against their license or certificate under other rules in addition to
the consequences established for violations of these rules. See the
individual OA rule preambles for an explanation of any differences from
the general requirements discussed above.
Applicability
The existing OA drug rules generally cover persons who perform
safety-sensitive functions in commercial transportation. Initially,
they affected approximately 4 million persons and include, for example,
commercial truck/bus drivers, pilots, pipeline employees, licensed and
documented mariners and others serving on board a vessel with a
licensed operator, and railroad workers subject to the Hours of Service
Act. An FTA final rule published elsewhere in today's Federal Register
adds drug testing for such workers as transit bus and subway operators.
In accordance with the mandates of the Act, the FHWA rule adopting the
alcohol provisions described in this common preamble extends their
coverage as well as the coverage of the existing FHWA drug rules to
persons required to obtain a CDL, including intrastate truck and motor
coach operators. This includes drivers and employers not currently
covered by the Federal Motor Carrier Safety Regulations (FMCSRs) such
as: Federal, State and local government agencies, and church and civic
organizations. As a result, the total number of persons covered by the
alcohol and drug testing rules has increased to over 7 million.
(Maritime industry personnel are covered by the drug rules, but not by
these alcohol rules (other than certain ferry boat personnel), although
USCG does have some alcohol testing requirements and intoxication
standards already in effect.)
In the common preamble to the NPRMs, we asked whether there is any
rationale for covering a different population for alcohol testing than
drug testing; no one provided such a rationale. The same employees who
would cause safety problems if they are using illegal drugs would cause
problems if they misuse alcohol. Consequently, the Department continues
to believe that the basis for imposing alcohol misuse prevention
requirements should be the performance of safety-sensitive functions.
Each OA rule defines ``covered employee'' with respect to its industry
and generally covers the same population under its alcohol prevention
program. Numerous commenters addressed the categories included in the
OAs' definitions of ``covered employee.'' Please refer to the specific
OA preamble for the OA's disposition of those comments. Although the
term ``security'' is used with respect to aviation passenger and
baggage screeners, that term is redundant and unnecessary; these
persons are performing what the FAA defines as safety-sensitive
functions--maintaining aircraft security--as opposed to simply having a
security clearance (which results in coverage of many Federal employees
under government drug testing programs).
The OA rules focus on function rather than a defined job or
position. An individual's job may encompass several different
functions, some of which are not safety-sensitive. Since alcohol is a
legal substance, alcohol use is relevant only to the extent it affects
performance of a safety-related function. As a safety regulatory
matter, for example, we are not concerned if an aircraft mechanic has a
drink before or while performing functions that are not safety-related
(as long as no other rule is violated); if the mechanic is receiving
all-day training on retirement planning along with non-safety employees
and the other employees can have a drink at lunch, the mechanic may
also.
Alcohol Testing Procedures
Each of the OA final rules requires employers to ensure that all
alcohol testing conducted under these rules complies with the
procedures for alcohol testing contained in the amended 49 CFR part 40
entitled ``Procedures for Transportation Workplace Drug and Alcohol
Testing'' issued by DOT elsewhere in today's Federal Register. Each OA
final rule incorporates the new 49 CFR part 40 by reference. Since all
of those OAs publishing final rules today require alcohol testing
conducted by their covered employers to comply with the part 40 testing
procedures, the DOT is issuing these procedures separately in order to
avoid their unnecessary duplication in each OA rule.
Part 40 requires both screening and confirmation tests for alcohol.
The rules require that screening tests with a result of 0.02 alcohol
concentration or greater be confirmed by an EBT listed on the NHTSA
CPL, which also is capable of printing out each test result and air
blank (test of ambient air), and sequentially numbering each test. This
provides an immediate confirmed result, which enables immediate removal
of the employee who has misused alcohol and also provides a printed
record of the result that will prevent disputes about the accuracy and
integrity of the testing process. EBTs are reliable and highly accurate
at detecting low alcohol concentrations and their use is possible in
all transportation settings envisioned in those industries for which
the OAs are issuing rules today.
Breath testing devices have been in use a long time; all States
accept evidential breath test device results as credible evidence of an
individual's violation of a law establishing a per se prohibited blood
alcohol concentration, so long as the devices are properly calibrated
and operated by trained personnel. Each device on the NHTSA CPL, with
or without printed results, has been accepted by at least one State for
use in court proceedings in that State. (Acceptance by a State of a
particular device is not, however, necessary for the use of that device
in that State for purposes of the DOT testing program.) In addition,
part 40 establishes training requirements for breath alcohol
technicians (BATs), maintenance and calibration requirements in a
quality assurance plan for EBTs, and additional testing procedures to
protect the integrity of the process.
In response to the comments received, the Department believes that
greater flexibility to use different testing technologies would benefit
employers, especially for testing in remote locations and tests for
which employers do not control the timing or ``triggering'' event--
reasonable suspicion and post-accident. At the same time, the
Department believes that any devices used in the testing program must
meet the precision and accuracy criteria established by part 40 that
the Department has determined are necessary to the integrity and
success of these programs and to ensure protection for employees. Only
EBTs on the CPL, including those without printers, currently meet these
criteria; those without printers can be used for screening tests but
part 40 requires that a logbook be kept with each such device to
provide a crosscheck for the occurrence of a test and its result.
In addition to the changes concerning EBTs without printers, part
40 will, in the near future, provide more flexibility to use different
testing technologies for screening tests than we proposed in the OA
NPRMs. NHTSA will develop model specifications (using precision and
accuracy criteria), evaluate additional screening devices against them
and periodically publish a conforming products list of those additional
screening devices (not exclusively breath testing devices) that meet
the model specifications. We expect that publication of the model
specifications will encourage manufacturers to develop products that
meet them. NHTSA will approve those devices that meet its criteria for
use in our alcohol testing programs. Please note that the Department
also will have to undertake separate rulemaking proceedings to
establish procedures for the use of any devices after they are
approved. The proposed NHTSA model specifications are published
elsewhere in today's Federal Register. NHTSA expects to begin
evaluation of screening devices after the final model specifications
are published. The device manufacturers also would have to certify that
they meet existing Food and Drug Administration (FDA) good
manufacturing practices and labeling requirements. The timing for the
NHTSA approval of screening devices will depend on the volume of
devices submitted for approval. The Department is continuing to
coordinate with the FDA and other appropriate agencies to determine if
additional product evaluations for alcohol screening devices will be
necessary.
We also are considering requiring blood alcohol testing in those
reasonable cause and post-accident situations where an EBT is not
readily available. It would provide increased flexibility to employers
to use blood testing where an EBT is available, but would be difficult
or expensive to transport to the test site. One benefit of requiring
blood alcohol testing in these limited situations is that employers
would not have to make EBTs available in as many locations as otherwise
would have been necessary. This would also mean that an employer must
conduct a blood test where a test would otherwise not occur because an
EBT is unavailable. The blood alcohol testing proposal, including blood
alcohol testing procedures, is addressed in a separate NPRM published
elsewhere in today's Federal Register. Before we issue a blood alcohol
testing final rule, we need to resolve specimen collection issues and
determine how to identify those laboratories that we can rely on to
test blood samples accurately. The NPRM also seeks comment on other
issues, such as safeguards for employees and procedures for shipping
and documentation of blood samples.
Please refer to the part 40 preamble for discussion of other
testing methods that are not appropriate for use in these programs at
this time, such as urine, saliva, or non-alcohol-specific devices for
``performance'' or ``fitness-for-duty'' testing. The flexibility
provided by part 40 will enable reconsideration of alcohol-specific
testing devices for future use if the device or method meets our
precision and accuracy standards and other requirements.
Definitions
Some of the definitions, such as those defining accident, covered
employee, and safety-sensitive function, among others, will be
different in each OA final rule based on differences in the individual
regulated industries. Other definitions, such as alcohol, are identical
in all of the OA final rules. In response to comments, we have changed
the definition of alcohol to include other low molecular weight
alcohols, such as methyl and isopropyl alcohols that could be used as
intoxicants, in addition to ethyl alcohol. This will avoid arguments
that a positive reading on a testing device could reflect the presence
of other non-prohibited alcohols. They also should be prohibited since
they have the same adverse effect. Alcohol concentration in all of the
rules means the alcohol in a volume of breath expressed in terms of
grams of alcohol per 210 liters of breath as indicated by an evidential
breath test under these rules. For example, a breath alcohol
concentration of 0.04 means 0.04 grams (four one-hundredths of one
gram) of alcohol in 210 liters of expired deep lung air. This breath
standard is analogous to a blood alcohol concentration of 0.04.
The definition of alcohol use means consumption of any beverage,
mixture, or preparation, including any medication, containing alcohol.
Some commenters suggested an exception for medication if the employee
notifies the employer and the employee's alcohol concentration never
reaches 0.02; others strongly opposed such an exception. (See FAA
preamble to its alcohol prevention rule for discussion of this issue in
the context of the more severe consequences for certain aviation
employees imposed by the Act.) Alcohol-based drugs could be used to
satisfy alcohol needs rather than medical needs, if permitted. Since
ingestion of a given amount of alcohol produces the same alcohol
concentration in an individual whether the alcohol comes from a mixed
drink or cough syrup, the Department is applying the prohibitions in
these rules to the use of any substance containing alcohol, such as
prescription or over-the-counter medication or liquor-filled
chocolates. Allowing an exception for medication would make it very
difficult, if not impossible, to enforce the rules. We believe there
are now non-alcohol alternatives for all non-prescription medications.
In addition, prescription medications containing alcohol may have a
greater impairing effect due to the presence of other elements, e.g.,
antihistamines. We are not aware of prescription medications used (over
a long term) that cannot be formulated in an aqueous preparation and
that would themselves be safe to use while at work. Therefore, we have
decided to prohibit the use of all medications containing alcohol
during, and in the four hours prior to (eight hours for FAA), the
performance of a safety-sensitive function. Several commenters opposed
a prohibition on the possession of medication containing alcohol. We do
not impose such a prohibition in these rules. However, some DOT
agencies already have existing regulations tailored to their industries
that prohibit or impose conditions on the possession of medications
containing alcohol while on the job.
The definition of substance abuse professional (SAP), as proposed,
encompassed licensed physicians, limited to medical doctors and doctors
of osteopathy; as well as licensed or certified psychologists, social
workers and employee assistance professionals; we had asked commenters
who else should be included. In response to comments, we have included
alcohol and drug abuse counselors certified by the National Association
of Alcoholism and Drug Abuse Counselors Certification Commission
(NAADAC), a national organization that imposes qualification standards
that we believe are necessary to perform a SAP's functions. We rejected
suggestions that the definition include State-certified counselors,
because the standards vary dramatically by State; in some States,
certified counselors do not have what we consider the necessary
experience and/or training. All of the categories listed in the
definition must have knowledge of and clinical experience in the
diagnosis and treatment of alcohol-related disorders in order to become
a SAP.
We have added a definition of violation rate, which each OA will
use in annually determining whether covered employees in a particular
industry meet the performance standard for adjusting the random alcohol
testing rate for that industry. The violation rate represents the total
of the number of covered employees as reported in OA MIS data annually
found during required random tests to have an alcohol concentration of
.04 or greater plus the number of employees who refuse a random alcohol
test, divided by the total of the number of employees in the industry
given random alcohol tests plus the number of those who refused a
random alcohol test.
Preemption of State and Local Laws
The Act contains an express preemption of State and local
requirements that are inconsistent with the Federal alcohol rules
applicable to the aviation, highway, and transit industries. Through
its implementation of the Hazardous Materials Transportation Act
(HMTA), the Department has long interpreted statutory preemption under
an inconsistency standard by using a two-pronged test. The test was
derived from Supreme Court decisions on preemption under the
Constitution, has been followed successfully by the Department, and has
been upheld by court decisions on preemption under the HMTA. In 1990,
at the request of the Department, Congress recognized this long-
standing interpretation by incorporating it into the statutory
preemption provision of the HMTA. (49 U.S.C. App. 1804) The final rules
adopt this interpretation of the inconsistency standard for preemption
by incorporating the two-pronged test.
Generally, the OA rules preempt any State or local requirement if
it is not possible to comply with both the Federal and the State or the
local requirements, or if compliance with the State or the local
requirement will frustrate the Federal requirement. For example, a
State requirement prohibiting the alcohol testing of transit employees
is preempted. Also a local requirement for a blood test (outside the
limited exception proposed elsewhere in today's Federal Register--
assuming the proposal will be adopted) to confirm alcohol use by a
commercial truck driver is preempted since it will frustrate
accomplishment of the Federal rule by adding additional complicated
procedures that may make it difficult to fully and accurately comply
with the DOT procedures and by adding costs that may make compliance
impossible for many companies. The rules do not preempt provisions of
State criminal law that impose sanctions for reckless conduct leading
to actual loss of life, injury, or damage to property, whether the rule
applies specifically to transportation employees or employers or to the
general public. One commenter asked whether a State could adopt and
enforce the same alcohol prevention requirements as those we establish
here. Since the same rules would not burden or conflict with the
Federal program, a State would be free to do so.
The purpose of preemption is to avoid the confusion and expense of
inconsistent requirements for employers or testing entities that
operate in several States and to prevent interference with the
functioning of the Federal program by extraneous, burdensome
requirements that may defeat its purpose and benefits by making
effective implementation difficult or impossible (e.g., by requiring
that employers pay for any rehabilitation or requiring confirmation
tests beyond those required by DOT). Because of the nationwide
application of the Federal program and the interstate nature of the
operations covered, even minor requirements in the aggregate may become
unduly burdensome. For this reason, we intend to scrutinize closely
State and local requirements under this preemption authority. Comments
on preemption are specifically addressed in the OA preambles.
Other Requirements Imposed by Employers
Some employers commented that they want to be free to impose
stricter requirements on their workforce. Except as provided in the OA
rules, employers retain their existing authority with respect to
alcohol testing and termination or rehabilitation of their employees
and employees retain their rights with respect to the use or possession
of alcohol. An employer may continue to conduct alcohol testing under
his/her own authority in addition to meeting the requirements of these
rules and provide or support alcohol rehabilitation programs. Employees
are free to consume alcohol on their own time so long as that
consumption does not violate any of the provisions of these rules or
other applicable rules. Some commenters asked us to preserve their
right to collectively bargain certain testing requirements. The rules
contemplate that many aspects of the employer/employee relationship
with respect to these programs will be subject to collective
bargaining. For example, who pays for assessment and evaluation is one
area we explicitly do not regulate. However, employers and employees
are not free to bargain away any of the requirements of these rules.
Whatever rights they may have to bargain collectively or otherwise
agree on employer-employee relations, they cannot change or ignore
Federal safety standards.
Requirement for Notice
Before performing an alcohol test under these rules, the employer
must notify the employee being tested that the alcohol test being
administered is required by these rules. The notice can be oral,
written or as specifically provided in an OA regulation. An employer
shall not falsely represent that a test administered under other
authority is being administered under Federal rules. The few comments
that we received on this issue were evenly divided between those that
supported the requirement and those that opposed it. Generally, we
think the required alcohol testing form is sufficient to constitute
adequate notice.
Starting Date for Alcohol Testing Programs
Most commenters seemed satisfied with the proposed implementation
schedule. Several larger employers requested additional time to develop
their programs, enter into service provider contracts and to complete
collective bargaining; some large employers believed that it would be
fairer if all employers had to implement their programs in one year.
The attached OA final rules establish the specific implementation
schedules for each industry. The schedules are similar to those
proposed in the NPRMs and those used in the DOT drug testing rules.
Generally, large employers will have the better part of one year
from the effective date of the final rules in which to implement the
requirements and small employers have nearly two years. To accommodate
the annual reporting requirements, large employers must implement these
programs on January 1, 1995 and small employers must implement these
programs on January 1, 1996. Each OA final rule defines employer size
and notes variations justified by industry differences; FAA and FRA
have a three tier phase-in for covered employers and contractors. The
timetables generally allow smaller employers to join alcohol misuse
programs already established by larger employers or consortia, which
should reduce their costs. Consideration and appropriate mitigation of
the rules' impacts on smaller employers is required by the Regulatory
Flexibility Act and Executive Order 12866, ``Regulatory Planning and
Review.'' We believe it appropriate for small employers to have more
time since their size alone may make it more difficult to implement an
alcohol misuse prevention program within one year (lack of expertise,
resources, etc.). Our experience in the drug testing area shows that
these implementation schedules provide sufficient time for larger
employers to establish their programs.
All employers must have an alcohol misuse program in place January
1, 1996. Thus, employers that begin to operate after the effective date
of these rules must have their programs in place by the deadline
according to size or by the time they initiate their operation,
whichever is later. These timetables also take into account the time
needed by the manufacturers to produce the required modifications to
breath test devices or to develop alternative devices. In addition,
they will allow time to develop conforming products lists (CPLs) for
other screening devices and to complete the blood alcohol testing
rulemaking.
Prohibitions
The OAs are establishing the following combination of prohibitions
designed to prevent any adverse alcohol effect on a covered employee
during performance of safety-sensitive functions.
Alcohol Concentration
Unlike some other drugs, alcohol is a legal substance with legally
and socially acceptable uses for persons 21 years of age and older. The
Department already has some prohibitions on alcohol misuse. Those OAs
that traditionally have regulated employee safety-related conduct in
commercial transportation (FAA, FHWA, FRA and USCG) have selected a
0.04 alcohol concentration as the per se standard for determining
whether an individual is under the influence of alcohol, and prohibit
any use of alcohol on the job. Some OA's (FAA, FHWA and USCG) subject
certain persons to pre-duty abstinence periods. FHWA rules require that
commercial vehicle operators with any measurable amount or detectable
presence of alcohol be placed out-of-service for a 24-hour period.
Until adoption of these rules, RSPA and FTA did not have alcohol
concentration prohibitions, primarily because neither directly
regulates employees.
Today's final rules prohibit covered employees from reporting for
duty or remaining on duty requiring the performance of safety-sensitive
functions while having an alcohol concentration of 0.04 or greater. It
is not possible to relate a given alcohol concentration definitively to
impairment in specific individuals. However, as noted earlier, the
presence of any alcohol can have an adverse effect on an individual. As
a result, the rules define alcohol concentration in terms of breath
testing measurement and specifically relate a violation of this
prohibition to the alcohol concentration as indicated on the breath
testing device. In addition, no employer who actually knows that an
employee has that concentration can permit the employee to perform or
continue to perform safety-sensitive functions.
Commenters addressing the proposed breath alcohol concentration
standard generally supported one of three choices: a 0.04 alcohol
concentration standard that triggers the full sanctions of the rule
with no consequences attached to lower levels; a similar 0.02 standard;
or the proposed 0.02/0.04 standard with its bifurcated consequences.
Most commenters supported a 0.04 alcohol concentration standard.
These commenters noted that this standard has been in place in
aviation, maritime, and railroad regulations for a number of years, and
is the standard that the States are required to adopt for commercial
motor vehicle drivers. Many commenters also noted that the evidence of
impairment below 0.04 was equivocal, with as many or more studies
finding no impairment below that concentration as those that identified
some impairment. Commenters further stated that the bifurcated system
would be difficult to implement and hard for employees to understand.
Finally, both labor organizations and employers stated that a likely
consequence of a test result between 0.02 and 0.039 would be
termination of employment under company authority. Labor organizations
stated that this consequence would be unfair and that, if the final
rules imposed a standard lower than 0.04, employers should be
prohibited from terminating employees based on such a result.
We agree with commenters that an alcohol concentration of 0.04
represents the point at or above which impairment for most individuals
rises dramatically, thus justifying its use as the standard for
commercial transportation employees and for imposing full sanctions
under the rules issued today. However, adoption of a ``bright line''
0.04 alcohol concentration standard, while consistent with current
regulations, does not address what to do with an employee who tests
below 0.04.
The existing rules that impose a 0.04 standard generally do not
require testing unless there is a triggering event, so the problem of
what to do with lower alcohol concentrations is not faced. In addition,
when individuals exceed the standard, action is generally taken against
a license or some other significant sanction is imposed. Under the
rules the OAs are issuing today, we face the problem of whether a
person who tests below 0.04 should be permitted to continue performing
safety-sensitive functions. Studies about the effects of any alcohol
raise our concern about the effects of lower alcohol concentrations on
transportation employees. For example, the National Academy of Sciences
(NAS) noted that several credible studies measuring task performance at
low blood alcohol concentrations indicate that, ``[a]lthough individual
reactions to alcohol vary depending on * * * [various] factors * * *,
sensory and cognitive performance is significantly reduced at or below
0.04 percent BAC.'' (Zero Alcohol, 1987) The study concluded that
``across broad populations of drivers, BACs exceeding about 0.04 to
0.05 clearly increase the probability of causing a crash. * * * [W]hen
the driver's age and experience with alcohol are controlled for
statistically, the risk of crash involvement increases at any recorded
BAC above zero.''
A recent NHTSA report to Congress stated that ``[a]lthough the
effects of alcohol on impairment and crash risk appear more
dramatically above 0.05 or 0.08, for some drivers, any measurable
alcohol puts them at increased risk.'' (Alcohol Limits, 1991) It noted
that relatively few studies have looked at alcohol concentrations below
0.04; therefore, only a small number of studies have found clearly
impairing effects for alcohol concentrations below 0.04 (commenters
noted this as well). NHTSA noted that individuals performing more
complex tasks (especially those involving a subsidiary task requiring
time-sharing or divided attention) often show evidence of impairment at
alcohol concentrations as low as 0.02. NHTSA concluded that one cannot
specify an alcohol concentration above which all drivers are dangerous
and below which they are safe or at ``normal'' risk.
The Transportation Research Board, in a study performed for the
FHWA during its Commercial Driver's License rulemaking, recommended a
0.04 BAC as the concentration where the serious penalties should apply
to commercial motor vehicle drivers, but it noted that some degree of
impairment such as slowed reaction time, loss of coordination, and
deterioration in judgment begins with any BAC above zero. (Zero
Alcohol, 1987) FHWA, in fact, adopted this recommendation in
promulgating its existing rules, from which we derived the bifurcated
alcohol concentration standard proposed in the NPRMs. The FHWA rule
imposes full sanctions for alcohol tests results of 0.04 and over. It
requires removal of the employee from service for 24 hours for any
alcohol test result between 0.00 and 0.04. Commercial motor vehicle
operators engaged in interstate commerce have understood and complied
with this bifurcated standard for several years, so other
transportation industry employees should not have trouble understanding
the standard. We do not believe that it is necessary to adopt a
``bright line'' 0.02 or 0.04 alcohol concentration standard to avoid
confusion.
Commenters who supported a 0.02 standard generally favored a ``zero
tolerance'' policy, and believed that the rules should set the standard
at the lowest level of accurate detection. Many of these commenters
stated that any person who would use alcohol sufficiently close in time
to the performance of safety-sensitive duties to have any measurable
alcohol concentration was acting in a manner contrary to safety and
should be appropriately sanctioned. Additionally, like those commenters
supporting a 0.04 standard, many commenters believed that a single
standard would be easier to implement, understand, and enforce. We
believe that the imposition of the relatively severe rule sanctions at
the 0.02 ``bright line'' alcohol concentration proposed by some
commenters is not justified. Although the available studies support
removing the employee from safety-sensitive functions, the level of
impairment or adverse effect does not warrant the additional actions
required for concentrations of 0.04 and above. Employers will likely
review employee test results between 0.02 and 0.04 on a case-by-case
basis to determine any appropriate action under their own authority.
A few commenters supported one of two other positions: absolute
zero tolerance, with anything over 0.00 resulting in a rule violation,
or a standard similar to those used by the States for driving while
intoxicated (0.08 or 0.10). They presented the former position as being
most consistent with safety. The NAS and the National Transportation
Safety Board (NTSB) have favored setting an explicit policy of zero
BAC. The NTSB said that ``[i]t should be absolutely clear that no
alcohol is acceptable in commercial transportation because research has
demonstrated that low blood alcohol levels can produce impairment.''
Its comments on these rules reiterate this position. As several
commenters who favored an 0.02 standard noted, adoption of an absolute
zero standard is not possible, as discussed below, because of the
current limits on testing technology. Commenters supporting the latter
standard based on State law believed that it would sufficiently protect
safety without unnecessarily infringing on employees' rights. Adoption
of either the 0.08 or 0.10 standard would be a step back from the
current requirements imposed on commercial operators. In light of the
studies referred to above, it also would be inconsistent with ensuring
public safety.
Those commenters who favored the proposed bifurcated system
believed it would provide employers with the greatest flexibility in
ensuring that alcohol use at very low levels did not adversely affect
safety while not requiring the more significant costs (evaluation,
replacement, etc.) or stigma associated with a rule violation. These
commenters did not believe that the provision would be difficult to
understand or enforce. We agree with them.
Having any standard other than 0.00 raises troubling questions
about whether an employer should allow an employee whose test shows an
alcohol concentration between 0.00 and 0.04 to continue performing a
safety-sensitive function. Clearly, the Department's concern about
public safety and an employer's additional concern about liability are
raised in a situation in which an employee ``passed'' a test with an
indicated alcohol concentration below 0.04 and then begins or resumes
performing safety-sensitive functions. The likelihood of being involved
in an accident when performing safety-sensitive functions with a
measurable alcohol concentration is increased. Therefore, we are
adopting the 0.02-0.04 standard, as proposed, with the two-tiered
system of consequences. The covered employee must be removed from a
safety-sensitive position at any alcohol concentration of 0.02 or
greater. If the employee's alcohol concentration is 0.02 or greater but
less than 0.04, the employee will not be allowed to perform safety-
sensitive functions until (1) the next scheduled duty period (usually
the next day), if at least eight hours has elapsed (24 hours for those
regulated by FHWA), or (2) a retest shows the alcohol concentration has
fallen below 0.02. If the employee has an alcohol concentration of 0.04
or greater, the employee cannot return to a safety-sensitive function
until (1) evaluated, (2) treated, if required by a SAP, and (3)
retested with a result below 0.02. In either case, the employee will be
prevented from posing any danger to the public. An employer can take
more serious action for the presence of alcohol at any concentration if
it has authority to do so independent of DOT regulations.
The Department has used the 0.02 alcohol concentration as the lower
standard rather than 0.00, because it represents the lowest level at
which a scientifically accurate alcohol concentration can be measured
given the limitations of any current technology (e.g., blood, breath).
Results below 0.02 cannot be verified as indicating consumption of
alcohol (could represent natural ketosis) and would be forensically
insufficient to support consequences under these rules. We cannot be
sure if such results indicate if the employee really has any alcohol in
his or her system. In essence, use of a 0.02 standard represents a zero
tolerance standard for alcohol.
Some commenters raised questions about relying on the NHTSA CPL for
testing devices that must measure as low as 0.02. NHTSA's model
specifications for devices on the CPL were developed for police use
under criminal laws prohibiting alcohol concentrations of 0.10 and
above. Although all of the EBTs on the CPL exceed existing
requirements, on September 17, 1993, NHTSA published a notice modifying
the model specifications for evidential breath testing devices to be
consistent with the requirements of these rules and updating the list
of conforming products (58 FR 48705). The new specifications establish
evaluations for precision and accuracy of devices at the 0.0, 0.02,
0.04, 0.08 and 0.16 alcohol concentrations. When the OAs proposed the
rules being issued in final today, we were aware that NHTSA was going
to take this action to respond to the ongoing efforts of States to
lower prohibited alcohol concentrations to 0.08 in general and to 0.02
for drivers under 21 and to the prohibition on 0.04 alcohol
concentration or greater for commercial drivers.
On-duty Use
The rules also prohibit a covered employee from using alcohol while
performing safety-related functions and prohibit an employer who
actually knows of such use from allowing the employee to perform or
continue to perform safety-sensitive functions. The need for this
prohibition is self-evident. Some commenters suggested an exception for
medication if the employee notifies the employer and the employee's
alcohol concentration never reaches 0.02; others strongly opposed such
an exception. As discussed above under the discussion on the definition
of alcohol use, we have decided not to allow a medication exception in
these rules.
Pre-duty Use
Commenters had a mixed reaction to the pre-duty use prohibition.
Several opposed it as unnecessary due to the on-duty prohibition,
intrusive on an employee's private life (and legitimate use of a legal
substance), unfair to ``on-call'' employees and unenforceable. Others
supported the prohibition, but several of them wanted it extended from
the proposed four hours to a range of five to 12 hours; eight hours
proved to be the most popular and the choice of the NTSB for all OAs.
One commenter wanted a clearer definition of what actual knowledge
means. Some commenters wanted a medication exception for pre-duty use.
Drinking during off-duty periods may impinge upon a person's
ability to function safely on the job. Although the alcohol was
consumed during the employee's private or off-duty time, it may still
be in the employee's system when he or she reports for work. We do not
and cannot effectively require the testing of all employees when they
report to work, so the existence of testing is not in itself
sufficient. Setting a pre-duty abstinence period also provides clear
instructions to an employee who might not otherwise appreciate or
understand that drinking before coming to work could result in a
positive test. Therefore, we believe that we need to retain a pre-duty
abstinence period in addition to the on-duty prohibition to avoid the
possibility of adverse effects from alcohol in the system due to pre-
duty ingestion.
The OA rules generally prohibit a covered employee from using
alcohol within the four hours preceding the performance of safety-
sensitive functions. Four hours is sufficient to ensure that an
employee is alcohol-free in most situations, without unduly intruding
upon the employee's private life; a longer period would be more
intrusive. The rules also prohibit an employer, who actually knows that
the employee has used alcohol within that period of time, from allowing
the employee to perform or continue to perform safety-sensitive
functions. An employer cannot always be aware of an employee's pre-duty
behavior, but actual knowledge can come from the employer's direct
observation of the employee, a reliable witness or the employee's
admission of alcohol use. Generally, this prohibition is enforceable
vis-a-vis the employer only in ``actual knowledge'' situations.
The FAA's long-standing eight-hour pre-duty use prohibition for
crewmembers will remain in effect. The applicability of the four-hour
prohibition to ``on-call'' employees varies by industry. Please refer
to the specific OA rules on this issue. Because duty tours often are
not predictable in the rail industry, the four-hour period is shortened
for unscheduled assignments to the interval between being ``called to
duty'' and ``reporting for duty.'' RSPA's rule provides an emergency
exception to the prohibition on pre-duty use. For example, the only
qualified employee in the area, who has used alcohol within the
previous four hours, can be called to respond to an emergency call to
perform the simple act of turning the valve to shut down a ruptured
pipeline. The rule prohibits alcohol use after the employee has been
notified to report for emergency duty. The exception does not support
the employee's continued performance of the safety-sensitive functions
once safety is achieved or if a replacement employee is readily
available. As discussed above under the discussion on the definition of
alcohol use, we have decided not to allow a medication exception in
these rules.
Use Following an Accident
Most commenters had problems with this prohibition, although many
supported the concept. Several noted that it would be unenforceable
because the employer often does not have control over the employee and
is unnecessary where the employee is in ``on-duty'' status, since the
on-duty prohibition applies. Numerous commenters pointed out that the
prohibition is too difficult to apply to employees who do not know
about the accident or to mechanics who may have worked on the vehicle
involved in the accident. Those comments on mechanics are specifically
addressed in the OA preambles.
Since it is important to determine whether alcohol is implicated in
an accident, a covered employee who has actual knowledge of an accident
in which his or her performance of a safety-sensitive function has not
been discounted by the employer as a contributing factor to the
accident is prohibited from using alcohol for eight hours following the
accident. The prohibition ends eight hours after the accident (when a
test is no longer required), once the covered employee has taken a
post-accident test under these rules, or once the employer has
determined that the employee's performance could not have contributed
to the accident.
While we recognize that there are some situations where it may be
difficult to enforce, the prohibition is important. The Department is
aware of accidents in which employees, who should have been tested,
left the scene and then, when they were brought in for testing, alleged
that they consumed alcohol after the accident. This rule prevents
employees who know they are subject to testing from explaining
``positive'' findings on an alcohol test by alleging they had a drink
after the accident, since such action also constitutes a rule
violation. It also is useful for employees who may not know whether or
not they remain in ``on-duty'' status after an accident to be aware of
this prohibition. We are imposing an ``actual knowledge'' requirement,
because, in some situations, the employee involved in an accident may
not know of the accident. For example, a mechanic makes a mistake that
causes an accident a couple of hours later or half a continent away. If
the mechanic is unaware of the accident, we agree with those commenters
that do not believe a ban on drinking can be effectively enforced.
However, if it is established that the mechanic did know of the
accident and his or her potential involvement (e.g., was told by a
supervisor) and performance of the safety-sensitive function was not
too removed in time to make conducting a test futile, the mechanic
would be prohibited from drinking. See the specific OA rules that limit
the application of this prohibition to performance of a safety-
sensitive function at or near the time of the accident or on the
vehicle or aircraft involved. Also, the FRA rule does not include this
requirement because under current FRA rules the employees involved
remain in on-duty status after an accident.
Refusal to Submit to a Required Alcohol Test
The rules prohibit a covered employee from refusing to submit to
required post-accident, random, reasonable suspicion or follow-up
alcohol tests. The RSPA rule provision applies only to those types of
tests it requires. This, in effect, provides that the employee must
take those tests when required. The consequences for a refusal to
submit to a required test are the same as if the employee had tested at
0.04 or greater or had violated any of the other prohibitions in these
rules. Failure to provide adequate breath for testing when required
without a valid medical explanation, engaging in conduct that clearly
obstructs the testing process, or failure to sign the alcohol testing
form (if the employee did not take test) constitute a refusal to submit
to testing. For further discussion of these points, see the preamble to
part 40. A covered employee subject to a post-accident test who leaves
the scene of the accident before being tested (except, for example,
when necessary to receive medical treatment) and is not reasonably
available for a test is deemed to have refused to submit to a required
test. A refusal also can occur where an employee, who screens positive
for alcohol, decides to admit alcohol misuse in violation of the rules
and refuses the confirmation test. This situation is different from
allowing employees to voluntarily ``mark off'' from duty when not
threatened with a test under these rules, if they feel that they are
unable to perform their jobs due to alcohol misuse. The employer must
still confirm the positive screen to protect the integrity of the
process and to comply with the statutory requirement for a confirmation
test. In the absence of the confirmation test result, the employee
could later disavow the admission and challenge the screen test result.
The rules prohibit an employer from permitting an employee who refuses
to submit to testing to perform or continue to perform safety-sensitive
functions. In addition, the FRA rule prohibits anyone refusing a
required test from engaging in covered service for nine months.
Some commenters, including the NTSB, wanted the penalty for a
refusal to test to be removal from safety-sensitive functions for 24
hours. We disagree and intend to apply the full consequences of these
rules to an employee's refusal to take required alcohol tests. Failure
to treat a refusal as a positive has two major shortcomings: it
eliminates deterrence since those misusing alcohol can simply refuse
the test if caught and get only a ``minor'' penalty; in addition,
simply removing them from safety-sensitive duties for 24 hours does not
help fix the problem--the employee should be evaluated by a SAP before
returning to a safety-sensitive function.
An applicant's or employee's refusal to submit to a pre-employment
test or a return-to-duty test does not trigger consequences under the
rules that result in the need for evaluation. In those cases, the
applicant or employee is not in a safety-sensitive position and does
not have to be removed from a safety-sensitive position. Since those
tests are a condition precedent to starting or returning to safety-
sensitive functions, the applicant or employee simply could not be
hired or returned to duty.
Tests Required
General
The Act requires that the industry alcohol misuse prevention
programs provide for pre-employment, reasonable suspicion, post-
accident and random testing. Periodic tests, which generally are
performed as part of required physical examinations for certification
of some employees, are discretionary under the Act. The OA rules
require the forms of testing mandated by the Act, as well as return-to-
duty and follow-up testing; however, the Department has decided not to
require periodic testing for alcohol. We agree with the commenter who
questioned the value of periodic alcohol testing if the employee knows
when the test is to be conducted.
The testing programs are designed for the deterrence and detection
of alcohol misuse, which, in turn, promote our compelling interest in
ensuring transportation safety. Whether conducted by breath, blood or
other method, alcohol testing is considered a Federally-mandated
``search'', under the Fourth Amendment. Accordingly, we are limiting
alcohol testing to the specific time periods surrounding the
performance of safety-related functions. That limitation provides the
requisite nexus to ensuring proper performance of safety-related
functions that is our primary concern and the principal purpose of
these rules. The tests required by these rules will be conducted after
a triggering event (pre-employment, post-accident, reasonable
suspicion, return-to-duty, follow-up) and just before, during or just
after performance of a safety-sensitive function (random). The
determination (triggering event) that a reasonable suspicion test is
necessary must occur during the time surrounding the performance of a
safety-sensitive function. Many commenters raised practical and policy
concerns about at least one of the different types of testing. These
concerns are specifically addressed below in the discussions relating
to each type of testing.
Pre-employment Testing
A substantial number of commenters were concerned about the costs
of pre-employment tests and considered them silly ``intelligence''
tests and a waste of time. The National Airline Commission specifically
recommended that ``[n]ew pre-employment alcohol testing rules do not
need to be adopted * * *'' The Act explicitly requires pre-employment
testing for covered transportation industry employees, so we do not
have the discretion to eliminate it from these programs. We recognize
that, as the commenters noted, drinking off duty generally is legal and
that alcohol remains in the body for only a short period of time.
Often, a test result indicating alcohol use may only indicate bad
judgment or bad timing (e.g., one notices an employment advertisement
after having beer and a hamburger for lunch, immediately applies, and
is tested) instead of alcohol misuse.
To make such a test more meaningful, we are requiring a covered
employee to undergo alcohol testing any time prior to the first time
the employee performs safety-sensitive functions for an employer. This
could occur the first time that the employee performs a safety-
sensitive function after being hired or after a transfer within the
employer's organization. Some commenters suggested that such tests only
be required upon a conditional offer of employment. The rules give the
employer the flexibility to test at any time during the hiring process,
including before or after the employee receives a conditional offer of
employment, or before (preferably just before) the employee starts
performing safety-sensitive functions. (Please refer to earlier ADA
section for discussion of treatment of alcohol testing as a medical
test, which would have to be done after a conditional offer.) The
latter choice will enable the employer to avoid the cost of testing
several applicants for each job, tie pre-employment tests to the
performance of safety-sensitive functions and accommodate the statutory
language requiring a pre-employment test for an ``employee'', rather
than an applicant. The former option will permit identification of
someone with alcohol in his/her system before incurring additional
hiring expenses. For the above reasons, the definition of ``covered
employee'' used in these rules includes applicants for a safety-
sensitive function as well as current employees applying to move into a
safety-sensitive function. Many commenters thought that the rules would
require every employee to report for work early every day for a
regularly scheduled or randomly-conducted pre-duty test. The pre-
employment testing requirement does not apply each time the employee
reports for safety-sensitive duties, only the first time. Some
commenters were confused by the use of term ``pre-duty'' in ``pre-
employment/pre-duty'' testing and to describe the prohibition on using
alcohol during a time period before performing a safety-sensitive
function. For that reason, we have changed the name of the test to
``pre-employment'', but note that it covers both new and transferring
employees.
The rules prohibit an employer from allowing an employee to perform
safety-sensitive functions unless that employee has been pre-employment
tested with a resulting alcohol concentration less than 0.04. If the
pre-employment test result indicates an alcohol concentration of 0.02
or greater but less than 0.04, the employee cannot perform or be
allowed to perform safety-sensitive functions until the alcohol
concentration falls below 0.02 on a subsequent test or until the next
scheduled duty period, if it is not less than eight hours following the
test. Nothing in the rules prohibits an employer from later retesting
an applicant with a positive result. The rules do not confer any rights
or consequences upon applicants or employees who have a positive result
on a pre-employment test.
Under the rules, an employer may elect not to administer a pre-
employment test if the employee has had an alcohol test conducted under
any OA alcohol misuse rule following part 40 procedures with a result
less than 0.04 within the previous six months and the employer ensures
that no prior employer of whom the employer has knowledge has records
showing a violation of these rules within the previous six months.
Generally, this means that, when checking with a prior employer to
verify that the applicant had ``passed'' a previous alcohol test, the
new employer also must verify that the prior employer has no records of
a violation of a OA alcohol misuse rule. If the new employer knows the
applicant had other employers within the last six months, the new
employer must check them too. This option provides the greatest
flexibility for avoiding the constant retesting and related costs
involved in an industry, such as trucking, which has a high employee
turnover rate. Some commenters did not approve of the requirement to
release previous test results to a new employer. We believe that it is
important to include this option in these programs; therefore, we do
not intend to allow employers to refuse to provide information on a
former employee, so long as the request meets the requirements of these
rules. Since the information can only be released with the employee/
applicant's permission, we do not believe there is a sound basis for
the former employer refusing to release the information. An employer,
of course, can choose to conduct pre-employment tests in lieu of
reviewing information on past employment authorized by the employee and
provided by a former employer.
One commenter asked that the proposed exception to pre-employment
testing be extended to include negative test results from the previous
12 months, instead of the previous six months. We have decided not to
extend the exception period to 12 months; we are trying to provide some
flexibility, but beyond 6 months it does not seem to us that it would
be a reasonable assumption that the employee continues to be free of
alcohol misuse.
In the common preamble to the NPRMs, we asked whether we should
require employers to give notice that a pre-employment test will be
conducted. We have decided not to impose such a requirement, because it
would be too time-consuming and burdensome on the hiring process,
particularly in those industries where hiring occurs on the spot. The
fairness issue (testing positive after a beer at lunch) is likely to
diminish over time as more and more employers conduct these tests and
applicants become more aware of their use.
Post-accident Testing
Post-accident alcohol testing already is required by Federal
regulation in some transportation modes and is used as a valuable
accident investigation and enforcement tool. States also conduct post-
accident tests, depending upon the circumstances and their authority to
test.
Effective post-accident testing for alcohol at remote locations can
be more difficult to accomplish than drug testing, because alcohol
passes from the blood and breath more quickly than most drugs. Also,
delays in transporting trained personnel and testing equipment to an
accident site can result in negative tests.
The OA rules generally require that as soon as practicable during
the 8 hours following an accident, each employer shall test each
surviving covered employee for alcohol, if that employee's performance
of a safety-sensitive function either contributed to an accident or
cannot be discounted as a contributing factor to the accident. The need
for testing is presumed; any decision not to administer a test must be
based on the employer's determination, using the best information
available at the time the determination is made, that the employee's
performance could not have contributed to the accident. The definitions
of accidents or occurrences that will trigger a post-accident test vary
by industry and are discussed in each OA's final rule. They generally
are the same as the triggering events for post-accident drug testing.
See the OA final rules for modifications to the general approach or for
disposition of comments on the events that trigger post-accident
testing. For example, under the FTA rule, post-accident testing is
mandatory if there is a fatality.
Any employee subject to post-accident testing shall remain readily
available for such testing or may be deemed by the employer to have
refused to submit to testing; such a refusal is treated as if the
employee recorded a test result of 0.04 or greater. Where possible,
employers should make every effort under the circumstances surrounding
the accident to ensure that the employee, even one who has been
permitted to leave--or has had to leave--the site, is available for a
post-accident test. This, of course, does not mean that necessary
medical treatment for injured people should be delayed or that an
employee cannot leave the scene of an accident for the period necessary
to obtain assistance in responding to the accident, materials to secure
the accident site, or necessary emergency medical care.
A number of commenters believed that conducting a post-accident
test within eight hours is unrealistic; they wanted a 32-hour maximum
limit as required in most OA drug rules. Because alcohol is eliminated
from the body much faster than drugs are, using a 32-hour limit for
alcohol testing is inappropriate. We chose an eight-hour maximum time
limit for post-accident alcohol tests, because if a test is not
administered within eight hours following the accident, there is little
likelihood of finding a meaningful alcohol concentration resulting from
use preceding the accident. Some commenters, including the NTSB, wanted
the post-accident time limit shortened to two to four hours because no
alcohol is likely to be detected after eight hours. Although shorter
time limits may result in a more useful test result, they may not be
reasonable; they ignore the likelihood that additional time may be
needed for those accidents that occur in remote areas or are not
discovered right away.
It is important that the employer administer a post-accident test
as soon as possible to determine whether there was any alcohol misuse.
If a post-accident test is not administered within two hours following
the occurrence of the accident, the employer must prepare and maintain
on file a record stating why the test was not promptly administered.
Some commenters wondered if the time ran from the accident or from the
time the site was secured. One commenter suggested that the two hours
should begin after the determination that the employee may have caused
the accident. Because alcohol metabolizes so rapidly, we disagree that
the two hours should run from the determination that an employee may
have caused the accident or after the site has been secured; those
actions could take several hours.
After eight hours has passed, the employer then shall cease
attempts to administer the test and record why the employer was unable
to administer a test. Some commenters grumbled about the record
requirements. We believe that recording this information is necessary
for program oversight and to encourage employers to make the maximum
effort to conduct any necessary post-accident tests in a timely manner.
The Department recognizes there may be valid reasons for not conducting
the tests in these time frames, but every effort must be made to do so.
We have tried to ease the reporting burden by dropping the proposed
requirement that employers submit these post-accident reports to the
appropriate OA. Instead, rules now require only that the employer
maintain records on why a post-accident test could not be conducted and
make the records available to the appropriate Department officials upon
request. It is important to note that this test is not meant to be a
full toxicological workup for the purpose of determining accident
causation. The primary purpose of the test is to determine whether the
employee(s) involved should be removed from safety-sensitive functions.
Most commenters who addressed the issue of who should be required
or permitted to perform the post-accident test supported OA acceptance
of tests conducted by law enforcement officers, even if the testing
does not comply with part 40 in every respect; a couple of commenters
opposed this idea. One commenter pointed out that most States have
implied consent laws; once the police test the employee and place him
or her in jail (presumably after a positive test), the employer will
not have access to the employee during the critical eight hours and
must be able to use the police test as a substitute, if made available.
Generally, we believe that employers should conduct their own post-
accident testing under these rules. However, as commenters have pointed
out, the nationwide highway transportation system presents difficult
post-accident testing problems. Motor vehicle operators can range far
beyond the control of their employers, who may not be informed of the
occurrence of an accident for an extended period. We agree that breath
or blood alcohol tests conducted by on-site State and local law
enforcement or public safety officials should be acceptable in lieu of
post-accident testing by FHWA employers in situations where that test
can be administered earlier than the employer can get to the scene or
when an alcohol test cannot be conducted by the employer within eight
hours. These local authorities often are first to arrive at an accident
site, particularly if the accident occurs in a remote area, and
sometimes are equipped to conduct tests. Such tests must meet State
standards that would already make them acceptable in court. Although
commenters to other OA rules expressed support of acceptance of such
tests in their industries, only the FHWA rule will provide for the
exception because the need is most acute for motor vehicle operations.
Other OAs, e.g., FAA, have separate rules that would enable them to
obtain the results of these tests, if necessary, or face fewer
difficulties in finding out about or locating an accident. We recognize
that we cannot always ensure cooperation in getting test reports from
the police. However, where such results are made available, they would
be acceptable under the FHWA program and part 40, provided that breath
testing is conducted with an EBT on the CPL and by a law enforcement
officer certified on that EBT, and that blood testing is conducted in
compliance with State-approved procedures. Please refer to the FHWA
preamble for additional discussion.
Numerous commenters believed that post-accident testing is
necessary, but that it is unreasonable and impracticable without the
option to use other methodologies, such as blood, saliva and urine. As
stated earlier, we are considering permitting the use of post-accident
blood testing and the possible use of other devices for screening
tests. Until more is done, we cannot ensure the reliability and
integrity of other devices. FRA has its own preexisting procedures for
conducting a full toxicological analysis following an accident; see the
FRA rule for its post-accident testing requirements.
Random Testing
A significant number of commenters opposed random testing, citing
its costs and burdens in comparison to the perceived lack of
significant problems in their industries. Several viewed training,
educational efforts and employee assistance programs as better
investments than random testing. Some commenters supported the need for
random testing. The Act requires random alcohol testing of safety-
sensitive employees in the aviation, rail, motor carrier and transit
industries. It is the only type of testing not triggered by or
conducted in reaction to another event; its primary objective is
deterrence. Although we agree that investment in education and employee
assistance efforts will deter some employees from alcohol misuse and
contribute to the overall success of the alcohol misuse prevention
programs, some employees will only be deterred by the existence of
random testing. The additional deterrence provided by random testing is
critical to ensuring public safety. Court decisions have indicated that
the lack of good data indicating a specific problem in a particular
industry is not a bar to our taking action to prevent or address the
spread of a societal problem to that industry. Moreover, the lack of
data may be due to the fact that currently there is little or no
testing. Finally, and most importantly, the Act provides no discretion;
we must require random testing. The rule does provide, however, that
two consecutive years of very low industry positive random alcohol
rates will result in a lowering of the random alcohol testing rate for
that industry, thereby reducing employers' costs.
The OA rules (except RSPA) require each employer to randomly select
a number of covered employees at various times during each year for
unannounced alcohol testing. The number of employees selected must be
sufficient to equal an annual rate of not less than 25 percent
(initially) of the total number of employees subject to alcohol testing
under a particular OA's rules. Thereafter, the industry's random
alcohol rate will be adjusted based on a performance standard related
to its random alcohol violation rate. Because of safety concerns, two
years of data are necessary to justify lowering the random alcohol
testing rate; one year of data is sufficient to raise it. (See more
specific random rate discussion below.)
The employer must select covered employees for testing through a
scientifically valid method, such as a random number table or a
computer-based random number generator that is matched with employees'
Social Security numbers, payroll identification numbers, or other
comparable identifying numbers. One commenter believed that in-house
random selection is discriminatory in practice and employers need to
use the services of an outside firm. Each covered employee must have an
equal chance of being tested under the random selection process used. A
system using random number table or random number generator would not
be discriminatory because the employer could not designate particular
employees for testing. The dates for administering random tests must be
spread reasonably throughout the year (the deterrent effect would
disappear if employees know that the employer had completed all
required random tests for the year) and should not be predictable
(e.g., every Monday or the first week of each month). To achieve this,
many employers may find it best to join a consortium. Because of the
randomness of the testing, some employees may be tested more than once
during the year, while others will not be tested at all.
In the view of some commenters, random testing would provide few
safety benefits since it is limited in time to performance of safety-
sensitive functions. A few commenters suggested removing those
limitations and applying the requirement to all employees at any time.
As stated above, we believe that the deterrence provided by random
testing will increase safety. To ensure their reasonableness for
Constitutional purposes (discussed earlier in this document), the rules
provide that an employee can be tested for alcohol only while the
employee is performing safety-sensitive functions, just before the
employee is to perform safety-sensitive functions, or just after the
employee has ceased performing such functions. Obviously, the best time
to test is before the employee begins to perform the safety-sensitive
function. Detection at that point will prevent the employee from
actually performing the function while he or she had alcohol in his or
her system. However, if the employee understands that a random test can
be administered only before he or she begins work and there is an
opportunity to drink during work, deterrence is limited. The ability to
test just before, during or just after performance increases the
deterrent effect and may enable detection of employees who use alcohol
on the job. Although it may be easier to test at any time, if the test
is not tied to safety, we do not believe there would be a sufficient
basis under the Constitution to conduct the test.
One commenter wanted a better explanation of ``just before, during
and just after'' performance of safety-sensitive functions. The purpose
of the concept of ``just before'' and ``just after'' is to avoid the
problem that some safety-sensitive functions cannot be interrupted for
the performance of a test (e.g., piloting an aircraft). We have not
defined the concept in terms of a specific time, but it is intended to
be close enough to the actual performance of the safety-sensitive
function that the test results will clearly indicate that the employee
would be or was at 0.04 or above (or 0.02 or greater but less than
0.04) at the time when performing those functions. To accomplish this,
employers should ensure that each covered employee selected for random
testing proceeds to the testing site immediately. In the event the
employee is performing a safety-sensitive function when notified, the
employer must ensure that the employee ceases the function consistent
with safety and proceeds to the site as soon as possible. See
discussion in the specific OA preambles on what the OAs expect
``immediately'' to mean in the context of reporting for a random test.
Consortia/Random Testing Pools
To promote efficiency and reduce costs, particularly for smaller
employers and employers subject to more than one OA rule, we generally
permit the combination of geographically-proximate employees covered by
different OA rules into one random testing pool. To maintain fairness
and the equal chance of each type of employee for selection, certain
conditions apply. For example, employees in any industry who travel
most of the time could constitute one pool; others who remain in the
vicinity of the testing site would be in another. However, if the
testing method chosen required testing of employees immediately upon
selection or whenever they arrived at the testing location after their
selection (but still unannounced), there would be no need for separate
pools. Any acceptable method must ensure that each employee has an
equal chance of being selected for testing. Although multi-modal pools
are permitted, they must meet any other specific OA requirements, such
as possible differing industry random testing rates.
If the employer joins a consortium, the rules permit the
calculation of the annual rate (where the rates are the same) on either
the total number of covered employees for each individual employer or
the total number of covered employees subject to random testing by the
consortium's pool covering the employer. This means that a consortium
member could have less than its required number of random tests
conducted if the overall consortium rate equals the required rate.
Thus, if Employer A has twenty covered employees and the consortium has
500 covered employees in the pool covering Employer A, and a 25 percent
rate applies, if Employer A chooses to have the rate based on the
consortium, the consortium must conduct at least 125 tests even if none
of the covered employees of Employer A are actually tested. So long as
each employee has an equal chance of being tested each time the
consortium conducts random tests, the requisite deterrence factor
exists. Membership in a consortium should improve deterrence for small
companies because their employees would continue to perceive an equal
chance of being selected throughout the year.
Random Alcohol Rate Performance Standard
In the NPRMs, we requested comment on what annual rate to require
for random alcohol testing within a 10 to 50 percent range. Most
commenters, particularly employers, wanted a 10 percent random alcohol
testing rate beginning the first year; although substantial numbers
selected 25 percent or a range between 10 and 25 percent and several
wanted to use 50 percent as currently required in the drug testing
rules. Many commenters expressed a greater preference for having the
same testing rate (and the lower the better) for both drugs and
alcohol, because combining the programs would save more money than just
lowering the testing rate. They argued that, with drug testing, studies
have shown that lowering the testing rate did not affect deterrence.
(At least one commenter argued, candidly, that since in its view random
alcohol testing is worthless but the Act required it, we should set the
lowest random rate possible to reduce employer costs.) According to
commenters, lower random alcohol testing rates are appropriate because
alcohol use has declined, and many employers have strong employee
assistance programs in place, which did not exist when drug testing was
phased in. Finally, most noted that it is easier to detect alcohol
misuse through supervisor or co-worker observation. Specific to this
rulemaking, the National Airline Commission stated that ``* * * any
random alcohol testing of airline employees should be at no more than a
10 percent rate.''
We note that in July 1991, the FRA initiated a comparative study of
random drug testing rates and the impact on deterrence, as measured by
the positive rate. The study compared 4 railroads testing at 50 percent
(control group) with 4 railroads testing at 25 percent (experimental
group) . The positive rate for the control group when the study was
initiated was 1.1 percent; for the experimental group it was 0.89
percent. In the first year (July 1991 through June 1992), the control
group's positive rate was 0.90 percent; the experimental group's was
0.87 percent. For the period July 1992 through June 1993, these groups
had positive rates of 0.80 percent and 0.94 percent, respectively.
Statistically, the differences in the positive rates between the
control and experimental groups are not significant.
Many would argue that the higher the random testing rate, the
greater the likelihood of getting ``caught'' and, therefore the greater
the likely deterrence. Detection is also higher at higher rates.
However, if the likelihood of detection is small (e.g., because alcohol
metabolizes so quickly), testing may result in little deterrence unless
very high rates are used. But costs also rise as the number of tests
increases. The concern is whether extra deterrence is worth the extra
cost.
The Department agrees with commenters that, since alcohol symptoms
are somewhat better known and easier to detect, more alcohol misusers
than drug users are likely to be caught by observation, which justifies
a lower random alcohol testing rate. (Of course, observation alone will
not always detect employees with very low alcohol concentrations,
unless they have an open bottle of liquor.) The deterrent effect of
random alcohol testing may not equal that provided by random drug
testing because the window for detection is limited by the rapid
elimination of alcohol from the body. An individual who has alcohol in
his or her system while performing safety-sensitive functions may be
``negative'' by the time he or she gets to the testing site and the
testing is completed. In addition, there are many more programs in
place to handle alcohol misuse problems than there were to handle drug
use problems when we issued the drug rules. There is also no indication
that alcohol is a growing problem; drug use was, and there is still
much evidence that strong steps must continue to prevent drug use from
increasing. Consequently, we believe that a lower initial random
testing rate is appropriate for alcohol.
For the above reasons, we believe we can permit the alcohol random
testing rate to drop to 10 percent if performance criteria in our rules
are met, but cannot permit a comparable drop in the drug testing random
rate for a similar performance. In view of the small window of
opportunity for detecting alcohol misuse, we agree with commenters that
the added cost could be more useful if applied to other areas of the
alcohol prevention program, such as training and employee assistance.
On balance, we believe that an initial 25 percent random alcohol
testing rate will best achieve deterrence and detection at a reasonable
cost.
Many employers commented that they wanted performance-adjusted
rates, where the random testing rate would be set according to each
employer's random positive rate for the preceding year. These
commenters stated that testing based on measures of results would
provide an incentive for employers to try alternative deterrence
methods. Labor agreed with employers on this issue. Adjusted-rate
testing could be used to reward those employers who have adopted
rehabilitation and treatment programs or who have low positive rates. A
few preferred adjusted-rate testing by industry. Other commenters noted
that providing flexibility with respect to the random testing rate
would be extremely difficult to administer.
We agree that there is merit in using a random alcohol testing rate
that is adjusted annually based on industry performance. To provide
more incentive and flexibility, the rules allow those industries that
demonstrate a very low positive alcohol random rate over two years, due
to few employee alcohol misuse problems or the success of the alcohol
prevention programs, to lower their random alcohol testing rate to 10
percent. Ten percent would be insufficient to protect public safety, at
least as an initial testing rate. The number of tests conducted at a
ten percent rate and the visibility of testing to employees, especially
in medium and small companies, would be insufficient to obtain data
about prevalence or deterrence of alcohol misuse. We could not reliably
make decisions on data gathered with such a rate--at least not for a
number of years. If those who say usage is extremely low are correct,
when the data gathered at the initial 25 percent rate verifies this,
the testing rate can be lowered.
The OA rules require employers to use an initial random alcohol
testing rate of 25 percent. They provide that, after all employers have
implemented the rules and industry-wide data for the first year is
available, the OA Administrator will annually announce in the Federal
Register the minimum required annual percentage rate for random alcohol
testing applicable in that OA's covered industry during the calendar
year following publication of the notice. Thereafter, each OA will
determine the annual random alcohol testing rate for the industry
regulated by the OA rule based on the reported violation rate (number
of random alcohol tests results equal to or greater than 0.04 plus
refusals-to-take random alcohol tests divided by the total random
alcohol tests conducted plus refusals-to-take random alcohol tests) for
the industry. The random rate adjustment indicated by industry
performance will occur at the beginning of the next calendar year.
(Thus, during calendar year 1997, an OA will receive results from its
industry for calendar years 1995 and 1996 (the first year that
industry-wide data will be available), evaluate them and publish in the
Federal Register a determination of the need for the industry to adjust
the random rate. Any such change would take effect on January 1, 1998.
Please note that, once employers of all sizes are reporting data, a
decrease in the rate would require two years of qualifying data and an
increase in the rate would require only one year of data.) A refusal to
take a random alcohol test will count as a positive for the purpose of
calculating the industry random testing rate and count toward the
number of random alcohol tests required to be conducted.
Determination of the violation rate is based on data obtained from
employers through the annual Management Information System (MIS)
reports they must submit by the following March 15th. We envision that
each OA and the OST Drug Office will review the MIS data and that the
OA Administrator will issue a determination within a few months. We
believe that covered entities need approximately one-half year of lead
time to adjust their procedures, make changes in any contracts and take
other necessary action to adjust to an increase or decrease.
To make a decision, each OA will compare the violation rate to two
specific criteria: 1 percent and 0.5 percent, respectively, to
determine if the industry must change or maintain the random alcohol
testing rate. If the industry violation rate is 1 percent or greater
during a given year, the random alcohol testing rate will be 50 percent
for the calendar year following the OA Administrator's announcement
that the rate must change. If the industry violation rate is less than
1 percent but greater than 0.5 percent during a given year (for two
years if currently at 50 percent), the random alcohol testing rate will
be 25 percent for the calendar year following the OA Administrator's
announcement that the rate must change. If the industry violation rate
is less than 0.5 percent during a given year (for two years if testing
at a higher rate), the random alcohol testing rate will be 10 percent
for the next calendar year. For example, an industry testing at a 50
percent random rate for alcohol can drop the rate to 10 percent if its
violation rate drops below 0.5 percent for two consecutive years.
Because of safety concerns, two years of data are necessary to justify
lowering the rate and one year of data is sufficient to raise it. The
two years cannot be averaged; a violation rate of 0.07 one year and a
0.11 violation rate the next year will not allow a drop in the random
alcohol testing rate.
We selected 1.0 percent and 0.5 percent as appropriate performance
standards. We would prefer zero positives but recognize this may be
impossible. These levels represent a balance, permitting cost savings
when usage remains very low, while ensuring that if deterrence is not
maintained, the rates will increase. We selected the 1 percent
violation rate as the rate adjustment standard based on the experience
that the military and other workplace programs have had with
deterrence-based drug testing. Their results reveal that no matter what
rate is used for random testing, the testing programs will never
achieve zero positives. There always is a constant group of ``hard-
core'' individuals representing a fraction of 1 percent of the
population who are detected positive over a period of time; these
individuals are unaffected by deterrence-based testing because of
addiction or belief in their invincibility. We also believe that a
positive rate of 0.5 percent is achievable based on our limited data
from the random roadside alcohol testing project, where rates below 0.5
percent were obtained, and our experience with DOT Federal employee
drug testing where positive rates have decreased to 0.25 percent.
We recognize that because the reported violation rate is obtained
from data whose precision is eroded by sampling variance and
measurement error, and whose accuracy is diminished by non-response
bias, there is a greater risk that it diverges from the actual
violation rate in the population. Each OA will be using MIS data
collection and sampling methods that address these issues to the extent
possible and make sense in the context of its particular industry.
Where not all employers are included in the reported data, the OA will
decide how many covered employers must be required to report or be
sampled; this decision will be based on the number of employers (not
otherwise required to report) that must be sampled to ensure that the
reported data from the sampled employers reliably reflects the data
that would have been received if all were required to report. However,
we retain for our discretion the decision on whether the reported data
reliably support the conclusion (e.g., based on audits of company
records that show significant falsification of reports). If the
reported data are not sufficiently reliable, the OA will not permit the
random rate adjustment to occur.
We have decided to use industry violation rates (positive tests and
refusals to test) as the performance benchmark rather than the employer
violation rates urged by commenters. Company-by-company rates would be
extremely difficult to implement and enforce, extremely difficult to
apply to small companies, would require reports from all companies,
could encourage cheating (especially in areas of heavy competition) and
could excessively complicate the use of consortia. Although an
individual company may have reduced incentive to lower its positive
rate, industry organizations may pressure it to work toward a more
favorable industry random alcohol testing rate. Industry-wide rates
should be much easier to implement and enforce.
Implementation Issues. The lower random alcohol testing rates will
create implementation problems, particularly for small employers and
consortia (see discussion below). Small companies that do not
participate in a consortium may have to test at a higher effective rate
even after the industry rate has been lowered to meet other
requirements. A very low number of dates on which tests are conducted
will have a detrimental effect on deterrence. Therefore, to promote
deterrence (and as required under the Department's drug testing rules),
an employer must spread alcohol tests throughout the year. A very small
company (e.g., one that has to test two covered employees) will not be
permitted to only test employees once every few years. Rather, it will
have to test at least once a year and establish a program that will
ensure that there is no period of time during which employees know
testing ``is done for the year''. For example, if an employer is
required to conduct only one to four tests and that number are
completed by mid-summer, the employer's program must ensure that more
tests could be conducted before the end of the calendar year. For
example, such an employer could conduct random testing every quarter or
could randomly select the month within the next 12 months for
conducting the next test(s). Depending upon the month selected, the
employer may in fact test more than once in a calendar year. For
example, using a revolving calendar, the first selection is May 1994
for the year January 1994 to December 1994; the next selection must be
for the 12 months from May 1994 to April 1995.
Another alternative is for small employers to join a consortium so
that their employees are always subject to random testing. Although we
have in a number of ways eased the burden on small employers, these
restrictions that may raise the effective annual random rate are
necessary to achieve deterrence in random testing in the context of
allowing random rate adjustments. A small employer, of course, can
achieve the benefits of a lower random rate without the higher costs of
meeting the deterrence requirements if it joins a consortium. If the
company is in a consortium, the employee is always subject to testing
because he or she is part of a much larger pool and the necessary
deterrence exists.
Under the Department's current drug testing rules, employers must
conduct random drug tests at a 50 percent annualized rate; that is, the
number of annual random tests conducted must equal half the number of
the covered population. Elsewhere in today's Federal Register, the
Department is publishing a separate NPRM that seeks comment on a
proposed industry performance standard to adjust the random testing
rate for the current drug testing programs. The proposal is designed to
lower costs and maintain an equivalent level of deterrence of illegal
drug use. The NPRM proposes to allow each OA Administrator to lower the
random drug testing rate to 25 percent if its industry has a positive
testing rate of less than 1.0 percent for two consecutive years (while
testing at 50 percent); the rate will increase back to 50 percent, if
the industry random violation rate is 1 percent or higher in any year.
The Department is not proposing a system to adjust the drug random
rates identical to that established for alcohol random testing for the
opposite of the reasons stated above. It is more difficult to justify a
possible lowering of the testing rate to 10 percent because the
symptoms of drug usage are less well known and more difficult to detect
by observation than symptoms of alcohol misuse. Moreover, random drug
testing is a more effective deterrent than random alcohol testing
because the window of opportunity for detection is greater; drug
metabolites are present in the body far longer than alcohol. However,
we agree with commenters that we still should provide an incentive for
each industry to achieve a low random drug positive rate and reduce
testing costs.
The random alcohol rate adjustments will have an impact on other
aspects of random alcohol testing. If a given covered employee is
subject to random alcohol testing under the alcohol misuse rules of
more than one OA for the same employer, the employee shall be subject
to random alcohol testing at the percentage rate established for the
calendar year by the OA regulating more than 50 percent of the
employee's safety-sensitive functions (or those that take the greatest
percentage of the employee's time). If the employee's time is equally
divided, the employer may choose the OA rule with the lowest random
testing rate. If an employer is required to conduct random alcohol
testing under the alcohol misuse prevention rules of more than one OA,
the employer may (1) establish separate pools for random selection,
with each pool containing the covered employees who are subject to
testing at a different OA required rate; or (2) randomly select from
all employees for testing at the highest percentage rate established
for the calendar year by any OA to which the employer is subject.
Consortia could meet different required random testing rates by setting
up separate pools.
Many commenters, particularly employers, supporting random testing
claimed that it would be less burdensome if they could combine their
drug and alcohol random testing programs. They noted that using the
same employee selection for both alcohol testing and drug testing would
allow flexibility and be more cost effective, by minimizing the impact
on an employer's operations. Labor supported combination testing, where
an employee would not know in advance whether he or she was being
tested for alcohol, drugs, or both, as the most effective type of
program. The rules do not prohibit employers from combining random drug
and alcohol testing. However, the possibility of different testing
rates for drug and alcohol random testing may cause difficulties for
employers interested in combining their random testing programs.
Differences in the testing rate for each program can be accommodated;
for example, where an employer must use a 25 percent alcohol random
rate and a 50 percent drug random rate, half (randomly selected) of the
employees chosen for testing would be tested for both drugs and alcohol
while the rest could be tested only for drugs. Other methods are
possible so long as they meet the requirements of both programs. Of
course, combined testing must occur around the time of performance of a
safety-sensitive function to meet the requirements of the alcohol
misuse prevention rules.
Reasonable Suspicion Testing
The vast majority of commenters supported the need for reasonable
suspicion testing, although one commenter opposed it as unnecessary in
view of existing company policies. We agree that this type of testing
may be more valuable for alcohol than for illegal drugs. People are
more familiar with the symptoms of alcohol intoxication than with those
of illegal drug use. The presence of alcohol is easier to detect (at
least at higher consumption amounts) from physical symptoms (e.g., odor
of breath) or behavior (e.g., inability to walk a straight line) and
more research has been done on how to train people to make these
observations. Supervisor observation is not a complete solution,
however; ``practiced'' drinkers often can mask symptoms (e.g., they use
a breath spray or can walk a straight line) and avoid detection. Also,
supervisors may have reasons to overlook employee alcohol use (e.g.,
sympathy for the employee, the desire to avoid confrontation, or the
lack of a readily available replacement). The U.S. Army has found that
supervisors have a tendency to underreport alcohol involvement in
accidents (The Alcohol and Accidents Guide, February 1987).
The OA rules require employers to test covered employees for
alcohol when the employer has reasonable suspicion to believe that the
employee has violated the prohibitions in these rules or if the
employee's behavior and appearance indicate alcohol misuse. The
employer's determination that reasonable suspicion exists to require an
alcohol test must be based on specific, contemporaneous, articulable
observations by a trained supervisor concerning the appearance,
behavior, speech, or body odors of the employee. Reasonable suspicion
testing under these rules is authorized only if the required
observations are made during, just preceding or just after the period
of the work day that the covered employee is performing a safety-
sensitive function.
Several commenters wanted supervisors to be able to use long-term
performance factors, such as abuse of sick leave, in making their
reasonable suspicion testing decisions. In addition, they believed that
requiring the observation to occur close to or during the performance
of a safety-sensitive function is too restrictive. Some commenters
thought that use of long-term factors would be appropriate only in
conjunction with short-term indications of alcohol misuse; others
opposed any use of long-term factors. The factors set out for
determining when reasonable suspicion exists in the drug and alcohol
rules are short-term in the sense that they focus on what a supervisor
sees at the time of performance of safety-sensitive duties. The
Department believes that this restriction is appropriate because it
accommodates Fourth Amendment concerns by relating the determination of
the need for testing to factors indicating possible alcohol involvement
that may affect the employee's present ability to safely perform
required safety-related tasks. For example, even if the supervisor does
not smell alcohol, he or she legitimately could decide to test an
employee who cannot hit the correct buttons to operate a vehicle (a
required safety-related task), but should not test an employee simply
because he or she comes in late that day. Constant lateness, for
example, may result from an alcohol problem, but it is not a reasonable
basis for suspicion of alcohol misuse; there are too many other
possible explanations. The rules do not interfere with the supervisor's
own authority to take appropriate action in response to longer-term
factors (e.g., a long-term decline in work performance, patterns of
absenteeism, lateness, or abuse of sick leave) that may violate company
policies.
A covered employee is required to undergo reasonable suspicion
testing for alcohol as soon as possible, because the body rapidly
eliminates alcohol. Therefore, if a reasonable suspicion test is not
conducted within two hours following the determination of reasonable
suspicion, the employer shall prepare and maintain on file a record
stating the reasons why the test was not conducted. If the test is not
conducted within eight hours after the determination of reasonable
suspicion, the employer shall cease attempts to conduct the test and
shall state in the record the reasons for not administering the test.
These records must be submitted to the appropriate Department officials
upon request. This record requirement and the reasons we are imposing
it are similar to those for post-accident testing discussed above.
(Please note this is a change from the NPRMs.)
A number of commenters expressed concerns that supervisors might
abuse reasonable suspicion tests to harass unpopular employees and
wanted strict requirements to prevent this possibility. Many wanted us
to require that two supervisors make the decision to test (as in the
existing drug testing rules) to limit possible harassment and to
support management's case during future grievance and arbitration
procedures. Others noted that a two-supervisor requirement would be
impracticable because alcohol metabolizes so quickly and because in
certain locations, many employees have only one supervisor available.
The alcohol final rules generally require a single supervisor
trained in detecting the symptoms of alcohol misuse to make the
required observations and determine the existence of reasonable
suspicion. We agree with several commenters that alcohol testing is too
time-sensitive to incorporate as a general rule the time it takes to
consult a second supervisor before making the testing decision, which
also is difficult or impossible in some transportation industry
locations. In addition, symptoms of alcohol use are more widely-known
and easier to detect than those of drug use so there is less need for
corroboration. To protect against possible harassment of a specific
employee, the supervisor who makes the determination that reasonable
suspicion exists generally is prohibited from conducting the reasonable
suspicion test on that employee. Comments were mixed on whether we
should allow supervisors to base their decisions to conduct reasonable
suspicion tests on third-party reports of alcohol misuse. We decided
not to permit a supervisor to base such a decision on reports by a
third person who has made the observations, because of that person's
possible credibility problems or lack of appropriate training.
A few commenters suggested that supervisors document within two
hours and annually report their reasons for conducting a reasonable
suspicion test so that the OAs can check for harassment. We believe
that the possibility that a review of company records would show
whether particular individuals were harassed--i.e., tested without
positive result too often--should help deter harassment. A couple of
commenters envisioned holding supervisors liable for damages if the
results of the test did not confirm their suspicions. We believe it
inappropriate to require action against a supervisor for ordering a
test where the results are negative. Reasonable suspicion is not a
guarantee of a positive result on an alcohol test. Other factors can
result in behavior or appearance that can reasonably cause one to
suspect alcohol misuse; that is why we require a test before requiring
action for a rule violation. In addition, the supervisor may have been
correct, but, by the time a test can be conducted, the alcohol may have
passed through the employee's system.
Behavior and Appearance
Numerous commenters wanted to eliminate the proposed prohibition on
employee behavior and appearance characteristic of alcohol misuse,
because it is conceptually part of the reasonable suspicion prohibition
and because it is so subjective. They noted that it would not be useful
because managers do not always have daily contact with their employees.
However, some commenters stated that they wanted the authority to
remove an employee on behavior and appearance grounds when a reasonable
suspicion test is not possible.
We agree that simple ``behavior and appearance'' of alcohol misuse
involves a subjective determination and should not be considered
prohibited conduct that triggers the full consequences of violating
these rules without confirmation of such misuse by a positive test. As
a result, the final rules have been changed from the NPRMs: under the
reasonable suspicion testing provisions, an employer who observes such
behavior and appearance must conduct a test; however, when it is
infeasible or impossible to conduct a reasonable suspicion test in a
timely manner (e.g., an EBT is unavailable or broken), the employee is
not permitted to perform safety-sensitive functions for eight hours (or
until obtaining a result below 0.02 on a test if an EBT subsequently
becomes available within the 8-hour period).
The OA rules prohibit a covered employee from reporting for duty or
remaining on duty requiring the performance of safety-sensitive
functions while the employee is under the influence of or impaired by
alcohol, as indicated by behavior, speech and performance indicators of
alcohol misuse. They also prohibit an employer from allowing such an
employee to perform or continue to perform safety-sensitive functions.
However, since alcohol-related behavior tends to become apparent to
persons without extensive training (such as that provided by police)
only at alcohol concentrations well above 0.04, it is unlikely that
misuse would be detected in this manner at alcohol concentrations in
the 0.02-0.04 range. Thus, there are important safety reasons for
requiring that an employee be removed from his or her safety-sensitive
function based on behavior and/or appearance alone if no testing
devices are available. Another reason that we decided not to eliminate
this provision entirely as requested by many commenters is because some
employers do not believe that they otherwise have the authority to
remove an employee who appears to be under the influence of alcohol in
the absence of a test. We do not want an employer to allow a safety-
sensitive employee to remain on duty for that reason.
Some commenters, particularly in the aviation industry, wanted to
retain existing prohibitions on operating ``under the influence'' and
while ``impaired''. To the extent some existing OA rules already permit
removal of an employee based on observation alone, the employee has a
right to an evidentiary hearing (e.g., as part of a certificate
revocation action). The rules we have published today do not provide
for a right to a hearing. For that reason, and because removal from a
safety-sensitive function in the absence of a reasonable suspicion test
involves a subjective determination, unverified by a test, and may
provide an opportunity for the employer to harass an employee, we
believe that lesser consequences should apply, i.e., removal from the
safety-sensitive function until the next regularly scheduled duty
period if at least 8 hours has passed. Removal for this reason does not
require a SAP evaluation. Existing consequences in other OA rules that
have ``under the influence'' or ``impaired'' language will continue in
effect; any consequences that attach as a result of those rules could
be imposed in addition to removing the employee from safety-sensitive
function for eight hours. An employer's separate existing authority to
remove employees is not affected by this provision.
Return-to-Duty Testing
The commenters split over whether return-to-duty testing should be
mandated by regulation or left solely to the discretion of the
employer; one commenter noted that it really is another
``intelligence'' test. Commenters who believed that the test should be
discretionary disagreed whether the decision to test should rest with
the employer (in consultation with the SAP) or the SAP alone. Some
commenters stated that using a 0.02 standard is too stringent. Others
liked the provision as proposed.
The OA rules require each employer to ensure that a covered
employee, who has violated any of these alcohol misuse rules, has been
evaluated, treated (where indicated) and tested with a result
indicating an alcohol concentration of less than 0.02 before returning
to a safety-sensitive function. We disagree with those commenters who
thought return-to-duty testing should be left solely to the discretion
of the employer. We believe that compelling concerns about safety and
possible recidivism justify imposing a return-to-duty test requirement
for those employees returning to safety-sensitive functions after they
already have demonstrated problems with alcohol. Similar concerns
justify use of a stricter 0.02 standard for return-to-duty tests. In
any event, under other provisions of the rules, employees could not
perform safety-sensitive functions until they have a result lower than
0.02; since this test is specifically for return-to-duty, the
application of the 0.02 standard is logical. A positive result on a
return-to-duty test indicates a problem that has not been resolved; the
employee cannot come back the next day to retake the test without
seeing the SAP again. The decision to return the employee to safety-
sensitive functions and to conduct the test ultimately belongs to the
employer. The SAP's function is to advise the employer as to whether
the employee has complied with any recommended program of treatment.
Given the potential for poly-drug misuse, the rules permit
employers to conduct return-to-duty drug tests on an employee, when the
SAP has reason to suspect drug involvement and recommends such testing.
Any such testing must conform to the requirements of part 40. The
opposite would be true as well. Employers would have similar authority
to test for alcohol where an employee tested positive for drugs and the
SAP had reason to suspect alcohol misuse. (The OA drug rules have been
drafted or are being changed to permit this.)
Follow-Up Testing
Commenters disagreed as to whether follow-up testing should be
required or discretionary. As with return-to-duty testing, they divided
over leaving the follow-up testing decision to the employer or to the
SAP. Several commenters thought that a requirement for follow-up
testing would be too costly and burdensome for employers and might
cause them to fire the employee instead. Others thought that the
concept had merit, but that the rules should require fewer tests over a
shorter period of time, especially since the employee is also subject
to random testing.
After identification of an employee's alcohol problem, there is a
strong chance of recidivism and a need to ensure continued
disassociation from alcohol misuse through periodic unannounced follow-
up testing. We believe that a minimum number of follow-up tests is
necessary to ensure public safety in view of various disincentives for
imposing them, such as cost, the customary SAP preference for informal
follow-up, and FRA's experience in its drug testing program (see
below). In making the decision whether to return the employee to
safety-sensitive duties, we assume the employer would determine
whether, in its particular circumstances, the cost of hiring and
training (and testing) a new employee would exceed that of testing a
returned employee to ensure continued disassociation from alcohol. We
agree with commenters that it is appropriate for the SAP to determine
the employee's need for an individualized rehabilitation (if any) or
follow-up program beyond the minimum specified here.
The OA rules require that each covered employee, who has been
identified by a SAP as needing assistance in resolving problems with
alcohol misuse and who has returned to duty involving the performance
of a safety-sensitive function, shall be subject to a minimum of 6
unannounced, follow-up alcohol tests administered by the employer over
the following 12 months. The SAP can direct additional testing during
this period or for an additional period up to a maximum of 60 months
from the date the employee returns to duty. The SAP can terminate the
requirement for the follow-up testing in excess of the minimum at any
time, if the SAP determines that the testing is no longer necessary. We
believe that fewer follow-up alcohol tests over a shorter period would
not provide sufficient deterrence of (or opportunity for detection of)
alcohol misuse by an employee who has demonstrated a previous problem.
The FRA's experience under its drug testing rules with required
follow-up testing for employees who tested positive for prohibited
drugs illustrates the need for a minimum number of required follow-up
tests. In 1991, FRA conducted a compliance review on a large railroad
company and found that 9 of ten employees who had tested positive and
were returned to service had received no follow-up tests during the
next year. One employee received one follow-up test six months after
returning to work. One of the employees who had received no follow-up
testing later tested positive on an FRA-required random drug test. The
Department's Office of Inspector General (OIG) recently completed a
review of the FRA's alcohol and drug program. The OIG reviewed follow-
up testing practices on several railroads and found inconsistent
procedures and a lack of follow-up tests. Its report recommends
prescribing procedures for follow-up tests, including a minimum number
of tests and a minimum period for follow-up testing. For the above
stated reasons, we believe that we must require a minimum amount of
follow-up testing.
The rules provide that the evaluation and treatment services may be
furnished by the employer, by a SAP under contract with the employer or
by a SAP not affiliated with the employer. In view of the
``gatekeeper'' function that the SAP has under the rules, we believe
that the employer should designate the SAP. Experts note that, due to
training and the profession's normal employee orientation, the SAP may
be eager to place the employee back into the normal work environment,
i.e., the safety-sensitive function, but reluctant to require testing
by the employer. The SAP may prefer to conduct any necessary follow-up
testing as part of an after-care or follow-up treatment program. While
we recognize that placement of the employee back on the job as soon as
possible without follow-up testing may help the employee, it could put
public safety at risk. The SAP's customary professional loyalty to the
employee ``patient'' would directly conflict with the safety
responsibility of the employer. In order for this program to work and
to ensure public safety, the SAP must recognize his or her obligations
to be cognizant of the employer's responsibilities and need for a fair
evaluation of the employee.
Given the potential for poly-drug misuse, the rules permit
employers to conduct follow-up drug tests on an employee during the
follow-up alcohol testing period, when the SAP has reason to suspect
drug involvement. Any such testing must conform to the requirements of
part 40. The opposite would be true as well. Employers would have
similar authority to test for alcohol where an employee tested positive
for drugs and the SAP had reason to suspect alcohol misuse. (The OA
drug rules have been drafted or are being changed to permit this.)
The rules do not use the stricter 0.02 alcohol concentration
standard imposed on return-to-duty tests for follow-up tests, even
though the employee has previously demonstrated problems with alcohol.
In either case, the employee cannot perform safety-sensitive functions
with an alcohol concentration of 0.02 or above. Unannounced follow-up
tests of employees back on the job are similar to random tests. Because
employers may find it convenient to conduct some follow-up testing at
the same time as random tests, the consequences for follow-up test
results must be the same as those for random tests. This will enable
employers to conduct unannounced testing and combine follow-up testing
with other types of testing, but avoid imposing total abstinence from
alcohol on returned employees whose follow-up programs do not require
it. We note that, under the Act, an aviation employee who has a second
violation under the FAA alcohol misuse prevention rule will be forever
barred from the employee's safety-sensitive function. Please see the
preamble to the FAA rule for a more comprehensive discussion of this
consequence.
Retesting of Covered Employees With an Alcohol Concentration of 0.02 or
Greater, but Less Than 0.04
Some commenters disagreed that there is any need to provide for
retesting. Others used this issue as an opportunity to reiterate their
opposition to the lesser consequences for test results indicating
alcohol concentrations between 0.02-0.039.
The rules provide that if the employer chooses to permit the
employee to perform a safety-sensitive function within 8 hours
following the administration of an OA-required alcohol test indicating
an alcohol concentration of 0.02 or greater but less than 0.04, the
employer must first retest the employee. The employee can return to the
safety-sensitive function if the retest results in an alcohol
concentration of less than 0.02. However, the FHWA rule does not
contain a retesting provision because of a statutory requirement that
drivers found to have a measurable amount of alcohol in their systems
must be removed for 24 hours. The FRA rule also does not contain this
provision because it would conflict with its existing rules.
Eliminating this option from the other OA rules would impose a hardship
on some employers; the employer will make the decision whether
retesting is necessary to accommodate its employment circumstances.
Handling of Test Results, Record Retention and Confidentiality
Retention of Records
We received very few comments directed to handling of alcohol
recordkeeping requirements. Generally, those commenters wanted to
shorten the record retention periods (the most popular option would
reduce the proposed 5 years to 3 years and the proposed 2 years to 1
year).
To facilitate Department oversight and effective enforcement of the
alcohol testing programs and to protect employee confidentiality, we
are requiring each employer to maintain records of its alcohol misuse
prevention program in a secure location with controlled access. One
commenter wanted to know what that really means. The employer should
lock the location (room, cabinet, or, if on computer, control access by
password or other protections) and allow access only to persons with a
legitimate need to see the records under these rules. The OA rules
require employers to retain, for a minimum of five years, records of
any employee alcohol test results indicating an alcohol concentration
of 0.02 or greater; documentation of refusals to take required alcohol
tests; equipment calibration documentation; and documentation of
employee evaluations and referrals. They require employers to retain
for a minimum of two years any records related to the collection
process (except equipment calibration documentation) and training.
Records of negative test results must be retained for a minimum of one
year.
Generally, the rules require each employer to maintain the
following specific records:
(1) Records related to the collection process, including:
Collection logbooks, if used; documents relating to the random
selection process; EBT equipment calibration documentation;
documentation of BAT training; documents generated in connection with
decisions to administer reasonable suspicion and post-accident tests;
and documents verifying existence of a medical explanation of an
employee's inability to provide adequate breath for testing;
(2) Records related to test results, to the refusal of any covered
employee to submit to a required alcohol test and to an employee
dispute over the result of an alcohol test;
(3) Records related to other violations of these rules;
(4) Records related to evaluations and return to duty; and
(5) Records related to education and training.
We have decided to retain the retention periods as proposed
because, considering the serious potential consequences of alcohol
misuse, we believe it is important to be able to identify repeat
offenders. In addition, the FAA has a need to track the number of
repeated violations under its rule for mandatory permanent
disqualification of an employee under the Act.
In the common preamble to the NPRMs, we asked whether we should
require documentation of reasonable suspicion determinations. Very few
commenters addressed this issue; some favored the requirement because
such documentation might deter harassment of employees, but others
opposed it as burdensome and a violation of employee privacy. The rules
do not require documentation of reasons for determinations made to
conduct reasonable suspicion tests, but if employers generate them,
they must maintain the records. We are not requiring that employers
report the specific test results of individuals--just aggregate numbers
for reasonable suspicion tests conducted and resulting positives. This
requirement should not burden employers and will protect employee
privacy. Employers may want to monitor their reasonable suspicion
testing positive rate to determine if their supervisors need additional
training.
Reporting of Results in a Management Information System
For oversight purposes, each employer generally is required to
compile for the OA that regulates it, at a minimum, an annual report
summarizing the results of its alcohol misuse prevention program for
each calendar year. This information will allow the Department to track
progress in the programs and later make changes, if justified, that
could reduce costs, ease implementation and enforcement, provide better
employee protection, and/or increase benefits. Some OA rules require
that all employers submit the data to the OA; others require a
representative sampling of employers to submit the reports or a mix of
required reports from some and a sampling of others. The OAs will rely
on this data for program evaluation and enforcement purposes, as well
as to adjust the random testing rates for alcohol. As noted earlier,
FAA, FRA, FHWA, RSPA, and USCG separately published MIS rules on
December 23, 1993, that describe the particular OA requirements for
reporting information on drug testing (and alcohol testing for USCG).
FTA's drug MIS requirements are in its final drug testing rule
published elsewhere in today's Federal Register.
Generally, employers subject to more than one DOT OA alcohol rule
must identify each employee covered by the regulations of more than one
OA and report the total number of such employees broken down by
category of covered function and by the OA. Before conducting any
alcohol test on an employee regulated by more than one OA, the employer
must determine which OA rule requires the test and then include the
test result in the appropriate OA MIS report. Pre-employment and random
testing data must be reported to the OA that covers more than 50
percent of the employee's function. Post-accident and reasonable
suspicion testing results, however, must be reported to the OA that
covers the function the employee was performing at the time of the
accident or determination of reasonable suspicion. Finally, return-to-
duty and follow-up results must be reported to the same OA that
received the initial results that led to the employee's removal from
the safety-sensitive function. In response to one commenter's concerns
about confidentiality of employee results, we note that the employer
must provide aggregated, not individual, information under the MIS.
Most of the comments addressed the drug MIS requirements; we
received very few concerning the alcohol MIS proposal. Since the MIS
requirements for drugs and alcohol are essentially similar, the
Department's responses to specific comments on the drug MIS
requirements, which are addressed in the preamble to the drug MIS rules
published December 23, 1993 (FTA's MIS comments are addressed in the
preamble to its final drug rule), also apply to the alcohol MIS
requirements.
Commenters generally expressed concerns about ensuring unimpeded
access to employee testing information kept by third-party providers,
e.g., consortia. The employer is responsible for the accuracy and
timeliness of each report submitted by it or a third-party service
provider acting on the employer's behalf. If necessary, the employer
should ensure by contract or other means access to employee testing
information held by a third-party provider.
Employers required to submit the annual reports must do so no later
than March 15 of each year for the preceding calendar year on the
specified form. Each report will contain a number of information items
relevant to program evaluation or enforcement. Eventually, we plan to
merge the alcohol and drug testing reporting requirements where
practical to permit one annual report and to eliminate any duplicative
information items. The Department is committed to developing the
capability for processing electronic submission of these reports where
such capability is not currently available.
Access to Facilities and Records
To preserve employee confidentiality, the rules generally prohibit
employers from releasing information pertaining to an alcohol test of a
covered employee or any violation of these rules, except as required by
law. They provide, however, that the employee is entitled, upon written
request, to obtain copies of any records concerning the employee's use
of alcohol, including alcohol test records. The rules permit the
employer to disclose information arising from the results of an alcohol
test administered under these rules or from the employer's
determination that the employee violated any prohibitions in these
rules to the employee or in the context of a proceeding relating to:
(1) An employee benefit; (2) DOT agency action against the employee
(e.g., an action to revoke a certificate); or (3) an NTSB safety
investigation. Employers must promptly provide any records requested by
the employee, but cannot make access to an employee's records
contingent upon payment for records other than those specifically
requested. The bundling of requested records with unrequested material
at much higher cost has been a problem under the drug rules. Employers
also will have to release information as required by law, including
court orders or subpoenae. Please refer to part 40 for additional
discussion.
The rules generally require an employer to permit access to all
facilities involved in its alcohol testing program and make available
copies of all test results and any other alcohol program records, upon
request, to the Secretary of Transportation or any OA with regulatory
authority over the employer or any of its covered employees. In
addition, upon request by the NTSB as part of an accident
investigation, employers are required to disclose information related
to the employer's administration of a post-accident alcohol test
following the accident under investigation. FTA's rule requires the
employer to disclose test results to States to be consistent with
obligations placed on States under FTA's State Safety Oversight rule.
See the preamble to the FTA rule for a further discussion of this.
RSPA's rule requires the employer to permit access to facilities and
make available test results and records to a representative of a State
agency with regulatory authority over the employer.
Several commenters raised questions about the reporting of
confidential information on individuals and opposed mandatory release
of employee test results to subsequent employers and other parties
because of unspecified liability concerns. Some commenters expressed
their support for employer provision of test results in appropriate
circumstances; a few others opposed allowing employers to require
employees to authorize the release of previous test results as a
condition of employment.
Generally, the rules require an employer to release information
regarding an employee's records as directed by the specific, written
consent of the employee authorizing release to an identified person. In
view of the fact that these rules permit employers to rely upon
negative pre-employment alcohol tests conducted by other employers
within the preceding six months, we believe that it is appropriate to
require a prior employer, upon written request from the employee, to
make records available to a subsequent employer. This pre-employment
exception, which can significantly reduce hiring costs for some
employers, might not otherwise be available to them. Since the previous
employer would release the records only with the written consent of the
employee for a specific limited purpose, commenters' liability concerns
appear to be unfounded. To preserve the employee's confidentiality, the
rules prohibit the identified person or recipient employer from
subsequently disclosing the records, except as expressly authorized by
the terms of the employee's written request. Please refer to part 40
for additional discussion.
These rules do not prohibit employers from using their own
authority to require applicants to release previous test results. We
believe that employers should be able to protect themselves from
alcohol misusers who move from job to job as they are detected. A
prudent employer can ask an applicant to request this information from
former covered employers as a condition of employment and not hire the
applicant until satisfactory information has been received. If the
applicant does not provide this consent, the employer simply could
choose not to hire the applicant for a safety-sensitive position. Of
course, an employer must conduct a pre-employment test when a previous
employer does not respond (e.g., had gone out of business, could not be
located, failed or refused to provide the requested information).
Consequences for Employees Engaging in Alcohol-Related Conduct
Removal From Safety-Sensitive Function/Required Evaluation and Testing
In general, the OA rules prohibit a covered employee who has
engaged in conduct prohibited by any of the OA rules from performing
safety-sensitive functions until he or she has met the conditions for
returning to such work, which include a SAP evaluation, compliance with
any required treatment program, and a successful return-to-duty test
with a result below 0.02. The rules require employers, if they have
determined that the employee has violated these rules, to ensure that
the employee does not perform or continue to perform safety-sensitive
functions.
Some commenters expressed the opinion that employers should
determine the appropriate consequences for a violation of these rules.
We disagree; there may be situations where a conflict exists between
protecting public safety and an employer's strong economic incentive to
keep an employee who misuses alcohol on the job. We believe that we
need to establish the appropriate consequences for violation of these
rules to protect public safety and to ensure their uniform application
to similarly-situated employees to the extent possible. The rules do
not prohibit an employer with authority independent of these rules from
taking any other action against an employee.
A few commenters stated that employers who remove an employee from
a safety-sensitive function should not be obligated to place that
employee in another position or compensate the employee. All these
rules require is removal from safety-sensitive functions. We leave the
specific conditions under which an employee is removed, such as whether
or not the employee is paid or moved to another non-safety-sensitive
position, to employer policies or collective bargaining.
A few commenters wanted the consequences to be the same for all of
the OA rules. Some of the OA rules do impose different consequences;
these result from differing statutory requirements and the need to
place these programs within the frameworks of the OA's existing safety
regulations. The Act mandates harsher treatment of certain aviation
employees that violate these rules. FHWA had to fit its rule within a
statutorily-required system of consequences for violations of its
safety requirements. (See the FAA and FHWA rules for a specific
discussion of these differences.)
Other Alcohol-Related Conduct
Continuing the argument over the appropriate prohibited alcohol
concentration, some commenters on this section wanted to eliminate the
lesser consequences for a 0.02-0.039 alcohol concentration and impose
the full consequences under these rules on any test result at 0.02 or
above, while others believed that no action should be taken against an
employee with a result below 0.04. We disagree with commenters who want
no action taken against an employee at alcohol concentrations below
0.04. Although the Department is not making alcohol concentrations
below 0.04 a violation of the rules requiring removal from safety-
sensitive functions until evaluation and, if necessary, treatment, we
are concerned about employees whose alcohol test indicates some alcohol
in their system. As noted earlier in this preamble, an alcohol
concentration of .039 may not warrant evaluation and treatment, but it
may have an adverse effect on that individual's abilities to perform
safety-sensitive functions. Alternatively, the individual's blood
alcohol curve may be rising, (i.e., the individual may have just
consumed enough to ultimately produce an alcohol concentration of 0.04
or greater, but the alcohol is just entering the bloodstream and, at
the time of testing, the alcohol concentration is below 0.04 and
rising). Permitting such an employee to continue performing safety-
sensitive functions, when we know there is alcohol in his or her
system, would violate our (and the employer's and employee's) safety
responsibility.
Therefore, in addition to the 0.04 alcohol concentration
prohibition, the rules require removal of covered employees found to
have an alcohol concentration of 0.02 or greater but less than 0.04
from safety-sensitive functions, until the employee is retested with a
result below 0.02, or until the start of the employee's next regularly
scheduled duty period, if it occurs at least eight hours following
administration of the test. If the retest result is above 0.04, the
employee has violated the prohibition against having an alcohol
concentration greater than 0.04. The employee will then be required to
meet the conditions for returning to safety-sensitive functions. The
rules do not prohibit the employer with authority independent of these
rules from taking any other action against an employee based solely on
test results showing an alcohol concentration greater than 0.02.
The OA rules and the part 40 alcohol testing procedures treat any
indicated alcohol concentration reading of less than 0.02 on an
evidential breath testing device (EBT) as ``negative.'' Given the
limits of technology for measuring alcohol concentration in body fluids
or breath, the rules use 0.02 as the threshold for establishing any
measured alcohol concentration. Below this level, we can not be certain
an individual actually has alcohol in his or her system. Readings below
0.02, therefore, have no significance for any purpose under our rules.
Use of Back Extrapolation
Most commenters opposed allowing the use of back extrapolation
because of its difficulty and uncertainty in application and because it
could infringe upon an employee's legal use of alcohol. Back
extrapolation is the calculation used to determine alcohol
concentrations over time based on an average rate of alcohol
metabolism. It is most generally used to determine whether the alcohol
concentration during the performance of the safety-sensitive functions
(e.g., at the time of the accident) was actually greater than a
specific concentration obtained at a later time. The OA rules require
action only based on actual readings on the EBTs. They do not permit
back extrapolation because, given the wide individual variations in
alcohol metabolism, it creates too many uncertainties in the context of
these programs. This prohibition would not prevent an OA from making
use of back extrapolation in certain situations. Some existing OA rules
permit the use of back extrapolation through expert scientific
testimony in reasonable cause and post-accident cases conducted with
appropriate due process protections. The rules that we are publishing
today do not provide such protections. Those situations are different
from the use of back extrapolation by employers in interpreting the
results of tests conducted under part 40.
The rationale for back extrapolation is based on studies that show
that the average rate of elimination of alcohol from the bloodstream is
approximately .015 percent per hour, though this rate may well decline
at low concentrations (0.02 and below). Individuals' rates of alcohol
elimination are very often not ``average,'' however. Further, it is
ordinarily not known when the individual last ingested alcohol or how
much alcohol he or she consumed. All of these factors make back
extrapolation subject to substantial inaccuracy. Such analysis requires
a number of ``assumptions.'' Some of the assumptions relate to the
individual subject (e.g., whether there is healthy liver function,
whether food was ingested before consuming alcohol, or other metabolic
differences), some to facts or claims that may be supplied by the
individual (e.g., no on-duty consumption, no consumption during the
pre-duty abstinence period), and others to data that can be supplied by
the employer (e.g., when the event occurred that triggered the test,
when the test occurred). It is not only desirable but necessary for
such analysis to be conducted by an expert in forensic toxicology.
We have decided not to permit back extrapolation of alcohol test
results under these rules, because it would base serious consequences
on the variable and uncertain results of this type of analysis.
However, the requirement that employers remove persons with indicated
alcohol concentrations of 0.02 or greater and less than 0.04 from
safety-sensitive functions for a period of not less than 8 hours or
until they retest below 0.02 will achieve some of the goals of back
extrapolation.
Alcohol Misuse Information, Trading, and Referral
Employer Obligation to Promulgate a Policy on Alcohol Misuse
The rules require each employer to ensure that each employee
receives educational materials that explain these alcohol misuse
prevention requirements and the employer's policies and procedures with
respect to meeting those requirements prior to the start of alcohol
testing. Each employer is required to provide written notice to every
covered employee and to representatives of employee organizations
concerning the availability of this information. Under the rules, the
materials must include: the identity of a contact person knowledgeable
about the materials; factual information on the effects of alcohol
misuse on personal life, health, and safety in the work environment;
signs and symptoms of alcohol misuse (the employee's or coworker's),
particularly at low concentrations; where help can be obtained;
available intervention methods, including referral to an employee
assistance program (EAP), other SAPs and/or management; categories of
employees subject to testing; what period of the workday or what
functions would be covered by the rules; a description of prohibited
conduct and the circumstances that trigger testing; testing procedures
and safeguards; an explanation of what constitutes a refusal to submit
to testing and the attendant consequences; and the consequences of
violating the rules (as well as lesser consequences for employees found
to have an alcohol concentration of 0.02 or greater but less than
0.04.)
Many commenters believed that simply providing the above
information is not sufficient to ensure that employees understand the
requirements of these rules and their consequences. This and other
comments on this provision related to employee training are addressed
below.
Self-Identification/Peer-Referral Programs
Since our primary purpose is to deter alcohol misuse and keep
employees who have alcohol in their systems from performing safety-
sensitive functions, employees should be able to identify themselves as
unfit to work. A few commenters wanted to be able to ``mark-off''. Some
segments of the transportation industry already have self-
identification programs that allow an employee to decline without
penalty to perform or continue to perform his or her job if the
employee knows that he or she is or may be impaired by alcohol. We do
not require such programs, because we believe that they are a matter
more appropriate for collective bargaining and employer policy. The
successful implementation of such programs depends upon joint labor-
management commitment to an alcohol/drug-free work environment.
However, we encourage employers to establish self-identification or
peer-referral programs and encourage employees to use them.
However, such programs cannot interfere with the conduct of the
alcohol tests required by these rules. Employers who have set up such
programs must ensure that employees are not allowed to self-identify
after they know that they have been selected for testing. This would
compromise safety and frustrate the goals of these programs. The rules
do not interfere with an employer's discretion to impose its own
sanctions against self-identifying employees, so long as the sanctions
are not premised on our rules. Such a program could permit a covered
employee to take a voluntary alcohol test to determine whether the
employee would be in violation of these rules if the employee were to
perform safety-sensitive functions (but not after the employee has been
selected for DOT-required testing); there would be no Federal
consequences or requirements pertaining to the test or its results,
however, since that kind of test is not required by DOT rules.
In addition to program information, the materials also may describe
any peer-identification or self-identification programs or procedures
that employers offer or are associated with under which a covered
employee may decline to perform or continue to perform safety-sensitive
functions without penalty when he or she may be in violation of these
rules, including any limits on the programs. The employer also may
include information on additional employer policies with respect to the
use or possession of alcohol, including any consequences for an
employee found to have a specified alcohol concentration, that are
based on the employer's authority independent of these rules. These
additional policies must be clearly communicated and identified as
based on the employer's independent authority.
Training for Supervisors
Commenters who addressed the issue of supervisor training or
education requirements proposed in the OA rules generally supported one
or a mix of the following: the necessity for annual or other recurrent
supervisory training; the necessity for 2 hours or more of supervisory
training; the adequacy of one hour of supervisory training; or a
mandatory requirement for supervisory training with the amount or
length of training left unspecified. For example, those who preferred a
particular amount of time for training split between a one-time
training requirement and an annual or other recurring training
requirement.
Those commenters who supported recurrent or annual supervisory
training requirements expressed the belief that supervisory personnel
need refresher or ongoing education to maintain and improve skills and
knowledge necessary to making effective decisions regarding reasonable
suspicion alcohol testing. These commenters cited experience with one-
time training for supervisors that did not provide sufficient exposure
to the problems associated with confronting and identifying problem
employees. Other commenters cited anecdotal information that reasonable
suspicion testing was more appropriately and frequently used when
supervisory training was part of an annual or periodic training
program.
The OA rules require employers to ensure that persons designated to
determine whether reasonable suspicion exists to require an alcohol
test receive at least 60 minutes of training on the physical,
behavioral, speech, and performance indicators of probable alcohol
misuse, particularly those associated with lower concentrations of
alcohol. We believe that this amount of training time is adequate for
this specific purpose and in view of the fact that the symptoms of
alcohol misuse are commonly known and recognized. We believe that
retaining the one-hour training requirement best balances the benefits
of supervisor training with its high costs to employers. Additional
supervisor training beyond a mandatory one-time, one-hour minimum may
be desirable, but requiring it would significantly increase the costs
imposed by these rules. At this time, we lack definitive information to
corollate the cost of additional training with quantifiable benefits
that would justify imposition of those additional costs on the
transportation industries. Employers may, of course, provide additional
information or annual (or other recurrent) training if they desire.
Several commenters requested that the rules combine drug and
alcohol training for supervisors. These commenters argued that training
would be more effective if viewed in the context of all substance abuse
rather than divided into separate courses for drug and alcohol abuse.
Employers are free to combine supervisor training for alcohol misuse
detection with the comparable training for drug use detection currently
required by the OA drug testing rules for a total of two hours to
minimize costs and inconvenience. Please note that FRA will retain its
existing combined three-hour requirement for alcohol and drug abuse
training for supervisors.
A few commenters suggested that the requirements for supervisory
training should be content- rather than time-specific. These commenters
recommended that the rules specify core or essential components of the
curriculum and employers would develop the supervisory courses
accordingly. This approach reflects a preference for criterion or
performance standard training requirements, rather than training based
on a ``classroom hours'' concept. We have decided not to establish
mandatory performance-based training because of the difficulty of
developing meaningful specific core course components that cover
various different industry situations and the administrative burden of
evaluating whether or not employers have met the performance standards.
We would rather allow employers the flexibility of tailoring supervisor
training to their particular industry and programs. We do, however,
take this approach with required BAT training, because that is much
more technical and specific and must be the same for part 40 testing in
all transportation industries.
Employee Training
Commenters presented many of the same arguments on the issue of
mandatory employee training as they did regarding supervisory training.
Various commenters suggested that mandatory recurrent or periodic
employee training would be advantageous and more effective as a
prevention or deterrent strategy than testing. Commenters also
suggested that the rules should combine alcohol awareness education
with drug abuse education to address the total substance abuse problem.
Some commenters opposed mandatory employee training because of cost
concerns.
Most comments on the issue of employee education criticized the
lack of specific proposed requirements for mandatory employee education
and training on alcohol misuse. These commenters argued that the
proposals to provide employees printed literature and information were
inadequate and, according to some, a waste of time and money. They
expressed the belief that structured, ``classroom'' type training is
more effective in presenting information about drug and alcohol abuse
and to increase awareness and prevention of alcohol misuse. A few
commenters argued that it is irresponsible and unnecessarily punitive
to impose a comprehensive alcohol testing program with specific
prohibitions on alcohol misuse, without requiring training for
employees to be certain they understand the prohibited conduct and the
consequences of misconduct.
We believe motivating employees about safety in the workplace and
good health is important to making an alcohol misuse prevention program
work. Because the primary objective of any effective alcohol misuse
program is deterrence rather than detection, it is especially important
that, before any testing is begun, employers make their employees fully
aware of the dangers of alcohol misuse in their jobs, advise them where
help can be obtained if they have a problem with alcohol use, and alert
them to the potential consequences for people who violate these rules.
These rules require that employers give covered employees alcohol
misuse information, but do not require classroom training for
nonsupervisory employees. Although such training may be desirable,
industry-wide mandatory employee classroom training would be
prohibitively expensive. In the highway area alone, a one-time, one-
hour training requirement for approximately 6.3 million employees, with
a large amount of turnover, at an average hourly wage of $14.50 plus
travel time, cost of materials, etc., would cost in excess of $100
million. At this time, we lack definitive information to corollate the
cost of training with quantifiable benefits that would justify
imposition of these costs. Because of the large number of employees
covered by these rules, the widely varying relationships between
employer and employee, and the difficulty in ensuring the effectiveness
of such wide-spread training, we believe it appropriate to allow
employers the discretion to determine the best means of educating their
employees beyond the minimum requirement to distribute informational
materials.
Some researchers claim that education is more effective in
preventing alcohol misuse than sanctions or enforcement initiatives.
For example, a Boston University researcher concluded that social
pressure and publicity ``may be as important as government regulations
in reducing impaired driving and fatal crashes.'' (quoted in ``USA
Today,'' Wednesday, August 3, 1988.) In the area of impaired driving
deterrence, NHTSA believes that the most effective programs are those
that combine education and enforcement. Information and education
programs, in the absence of enforcement activities or sanctions, have
never been shown to have an impact on reducing alcohol-related fatal
crashes. Conversely, scores of studies have found that programs
involving enhanced enforcement, roadside sobriety checkpoints, and the
use of sanctions such as license suspensions frequently have resulted
in significant reductions of alcohol-related fatalities. Although there
is disagreement on the effectiveness of education alone, it appears
that using education as an adjunct to other deterrent measures, such as
those in these rules, will make both more effective.
We recognize that it may be difficult to get the attention and
support of workers by handing them literature or displaying various
materials on a bulletin board. In conjunction with the implementation
of the rules, the Department also plans to distribute educational
materials and conduct seminars designed to help employers increase
employee awareness of the risks of alcohol misuse by those who perform
safety-sensitive functions. The Department took similar action in the
drug area.
Referral, Evaluation, and Treatment
Numerous commenters expressed concern that the NPRMs did not go far
enough in ensuring that employees would get access to needed assistance
and treatment. They felt that even though the proposed rules require
``evaluation and assessment'' by a SAP, they do not protect employees
who violate the alcohol misuse provisions from termination, and,
therefore, the access to treatment via the SAP evaluation is a sham; a
paperwork exercise. Several commenters favored mandatory employer-
provided or paid rehabilitation, citing our proposals as a cynical
violation of the Congressional mandate to provide an opportunity for
rehabilitation. Some commenters, particularly labor and union groups,
expressed the view that the rules should specifically guarantee that
employees who violate the regulations are evaluated by a SAP and
provided access to treatment, regardless of personnel actions taken by
the employer. Many commenters, however, opposed mandatory employer-
provided or paid rehabilitation.
The Act requires that an opportunity for treatment be made
available to covered employees. To implement this mandate, these rules
require an employer to advise a covered employee, who engages in
conduct prohibited under these rules, of the available resources for
evaluation and treatment of alcohol problems, including the names,
addresses, and telephone numbers of SAPs and counseling and treatment
programs. They also provide for SAP evaluation to identify employees
with alcohol misuse problems. The employer has no similar obligation to
applicants who refuse to submit to or have a positive result on a pre-
employment test; this obligation runs only to current employees. The
rules do not require employers to provide or pay for rehabilitation or
to hold a job open for an employee with or without salary; the costs of
such requirements could be prohibitive and could jeopardize the success
of this program. In the drug testing rules, the Department decided that
it was inappropriate to establish a Federal role in mandating that
employers provide for rehabilitation and that it should be left for
management/employee negotiation. The same logic applies here and the
Department has decided not to require employer-provided rehabilitation
in these rules. We believe that the rules' provisions concerning
evaluation adequately address the Act's requirements.
Many commenters noted that EAPs have proven successful in offering
employees with alcohol problems an avenue to non-punitive resolution of
their problems and in offering employers the ability to return
employees to the workforce who might otherwise have been fired.
Aviation employers pointed to the FAA-supported Human Intervention and
Motivational Study (HIMS) as a particularly effective program, with its
combination of alcohol awareness training for supervisors and peers,
rehabilitation, return to duty/medical certification process, and
intensive follow-up monitoring of recovery. Overall, the success rate
for alcoholic pilots identified through the HIMS or related programs
has been about ninety percent. Some transportation employers have
established similar programs for all of their employees. A number of
these commenters also expressed their concerns that resources currently
dedicated to EAPs would have to be shifted to support the new alcohol
testing requirements, resulting in the reduction or elimination of
existing EAP services.
We recognize that these programs will be costly and that, in
specific circumstances, employers may decide that they have to divert
funds from an EAP to conduct the required alcohol testing and
prevention programs. The primary safety objective of these rules is to
prevent, through deterrence and detection, alcohol misusers from
performing safety-sensitive functions. The necessary resources must be
provided to accomplish this objective. We hope that employers do not
have to divert resources from EAPs to achieve this. We recognize the
value of rehabilitation and encourage those employers who can afford to
provide it to do so through established health insurance programs,
since it helps their employees, benefits morale, is often cost-
effective and ultimately contributes to the success of both their
business and their testing programs. Please note that repeated
provision of access to rehabilitation services after ``positive''
testing, followed by repeated reinstatement and repeated violations,
may raise public safety and liability concerns for employers. It also
could dilute the deterrent value of testing programs and encourage
further misuse of alcohol.
Commenters also addressed the issue of the role of the SAP in
return-to-duty determinations. Many of these commenters felt that the
NPRMs were not clear in delineating how and by whom the decision of an
employee's return to safety-sensitive function would be made. Some of
these commenters believe that the SAP should play a crucial role in
advising or recommending return-to-duty actions to employers.
The rules provide that the evaluation may be provided by a SAP
employed by the employer, by a SAP under contract with the employer, or
by a SAP not affiliated with the employer. A SAP will evaluate each
covered employee who violates these rules to determine whether the
employee needs assistance resolving problems associated with alcohol
misuse and refer the employee for any necessary treatment. Before
returning to duty, each employee identified as needing assistance must
(1) Be evaluated again by a SAP to determine whether the employee has
successfully complied with the treatment program prescribed following
the initial evaluation, (2) Undergo an alcohol test with a result of
less than 0.02 alcohol concentration, and (3) Be subject to a minimum
of six (6) unannounced, follow-up alcohol tests over the following
twelve (12) months. Compliance with the prescribed treatment and
passing the return-to-duty alcohol test do not guarantee a right of
reemployment or return to safety-sensitive duties; they are
preconditions the employee must meet in order to perform safety-
sensitive functions. The decision on whether to return the employee to
his or her job we leave to the employer. The choice of SAP and
assignment of costs should be made in accordance with employer/employee
agreements and/or employer policies.
In the common preamble to the NPRMs, we proposed categories of
persons eligible to be SAPs and asked if other categories should be
included. Numerous commenters complained that the proposed definition
was too restrictive. The National Association of Alcoholism and Drug
Abuse Counselors (NAADAC) organized a widespread effort for its
membership to send comments supporting the position that certified
addiction counselors were the most qualified professional or
occupational group to serve as SAPs. These comments tended to emphasize
NAADAC standards and certification requirements, especially in
counseling, treatment and rehabilitation of alcoholics and addicts.
Many commenters certified by other State or local boards also presented
arguments for their inclusion in the definition of a SAP. A few
commenters suggested that physicians, social workers, and psychologists
do not generally have training or skills specific to alcohol and drug
abuse diagnosis or treatment.
The final rules define the SAP, as proposed, to include a licensed
physician (with a Medical Doctor or Doctor of Osteopathy degree) with
knowledge of and clinical experience in the diagnosis and treatment of
alcohol-related disorders (the degrees alone do not confer this
knowledge), or a licensed or certified psychologist, social worker, or
employee assistance professional with knowledge of and clinical
experience in the diagnosis and treatment of alcohol-related disorders.
In response to comments, we also have included in the definition
alcohol and drug abuse counselors certified by the NAADAC Certification
Commission, a national organization that imposes qualification
standards for treatment of alcohol-related disorders. The commenters
provided information showing that the training and experience necessary
to meet NAADAC standards are sufficient for participating as a SAP in
our alcohol misuse prevention programs. We rejected commenters'
suggestions that the definition include State-certified counselors,
because the qualification standards vary dramatically by State; in some
States, certified counselors do not have the experience or training we
deem necessary to implement the objectives of our rules. State-
certified addiction counselors can, of course, take the NAADAC
competency examination to become a certified alcoholism and drug abuse
counselor. The rules require that all persons in the categories listed
in the definition must have knowledge of and clinical experience in the
diagnosis and treatment of alcohol-related disorders to qualify.
A few commenters expressed concern about the relationship of the
SAP to the treatment or rehabilitation staff or facility. These
commenters specifically addressed potential conflicts of interest, a
``referral-to-self'' practice, and the objectivity of return-to-duty
evaluations. Many of these commenters believed that the rules should
establish specific parameters that outline the SAP's duty or obligation
to the employer as well as protections for employees against
unscrupulous or unethical SAPs who would use the evaluation and
assessment process to foster their own practice or treatment
facilities.
Professional organizations, such as the Employee Assistance
Professionals Association, prohibit their members from making referrals
for treatment to their own practice or to agencies from which they
receive financial remuneration. We want to avoid conflict-of-interest
problems that could arise where the SAP is involved in both the
evaluation and treatment phases of employee assistance, which could
lead to recommendations for inadequate or inappropriate treatment for
the employee and/or the imposition of unnecessary costs on both
employers and employees. For example, a SAP might recommend a one-time
misuser for a 30-day treatment program in which the SAP has a financial
interest or send an alcoholic through the SAP's own out-patient
treatment program. Therefore, the rules generally require the employer
to ensure that a SAP who determines that a covered employee requires
assistance in resolving problems with alcohol misuse does not refer the
employee to the SAP's private practice or to a person or organization
from which the SAP receives remuneration or in which the SAP has a
financial interest. However, this requirement could impose hardship and
the unnecessary costs of requiring two different sources of assessment
and treatment on employers in remote areas or in situations where
employee assistance (including assessment and treatment) is provided by
contract or through a health insurance program. Therefore, the rules do
not prohibit a SAP from referring an employee for assistance provided
through (1) a public agency; (2) the employer; (3) a person under
contract to provide treatment for alcohol problems on behalf of the
employer; (4) the sole source of therapeutically appropriate treatment
under the employee's health insurance program; or (5) the sole source
of therapeutically appropriate treatment reasonably accessible to the
employee.
Some commenters wanted a medical review officer (MRO) to review and
interpret alcohol test results. Since the determination made in alcohol
tests required by these rules is whether there is a prohibited
concentration of alcohol in an individual's system, regardless of the
source, there is no need to require an MRO to interpret positive test
results, as required by the DOT drug testing rules. There is no
``alternative medical explanation'' for the prohibited alcohol
concentration, so there is no role for an MRO. The mental health and/or
medical professionals to whom the employee is referred can evaluate the
employee's problems, if any, associated with the alcohol misuse. A SAP
will then determine whether the employee has complied with any
recommended treatment program. In some OA rules, where the employee
operates under a certificate or license, a licensed physician must
certify, in conjunction with a medical examination, whether the
employee can return to work.
Other Issues
Flexible Approaches
As in the drug testing rules, we want to provide program
flexibility to allow employers to carry out their programs in a more
efficient, cost-effective manner and to ease the compliance burden on
small businesses. Testing, for example, can be conducted by the
employer, an outside contractor or program administrator, a consortium,
a union, or any other entity. The use of consortia has worked well in
the drug testing area; in fact, it is the predominant method of
compliance in some industries, particularly among smaller employers. We
have delayed implementation of the alcohol rules for smaller employers
by an additional year to enable them to join established consortia or
large employer testing programs, rather than have to establish their
own programs.
The OA rules have specific provisions to make it easier for smaller
employers; FRA is retaining its existing exemption from its drug and
alcohol rules for railroads with 15 or fewer employees that do not
engage in joint operations. (These entities are not considered
sufficiently safety-sensitive to be subject to testing, since they tend
to operate on private track at slow speeds.) FRA, which requires
covered employers to submit plans for their alcohol misuse programs,
imposes significantly reduced plan requirements on smaller employers.
Employers may find it more cost-effective and convenient to conduct
alcohol testing, particularly random testing, at the same time they
conduct drug testing. Because we require alcohol testing at or near the
time of performance, however, all random and reasonable suspicion drug
testing also would have to occur at such times. In addition, the
testing would have to take into account differences in the alcohol and
drug random testing rates for the employer's industry. For random
testing, employers can randomly choose the employee's number and then
test the employee for both drugs and alcohol the next time he or she
performs safety-sensitive functions. As described earlier, we are
allowing performance-based random alcohol testing rate adjustments and
initiating additional rulemaking to provide for greater flexibility in
testing methods.
Motor Carrier Safety Assistance Program (MCSAP Option)
In the OA NPRMs, we sought public comment on whether the post-
accident and random (or other) roadside testing could be conducted by
state and local law enforcement officials under the FHWA Motor Carrier
Safety Assistance Program (MCSAP), which is a Federal/State cost
reimbursement and matching grant-in-aid program to increase commercial
motor vehicle safety, or a similar program. The FHWA NPRM specifically
proposed this option. Under the MCSAP, participating States would have
to submit a random (or other) alcohol testing plan as part of their
application for FHWA MCSAP funding. The random alcohol testing plan
component would conform to the requirements of these rules.
Recognizing that statutory changes to implement the MCSAP option
would be necessary, we sought public comment on whether involving State
and local authorities in alcohol testing would work for the various
types of testing in the different transportation industries. Since
States already have some equipment and their law enforcement officials
already are trained in using that equipment, overall costs might be
less; user fees could be imposed on covered employers to cover State
costs. As neutral, third-party testers, their tests might be better
accepted by employees. Due to the fact that local officials may reach
an accident first, they could help in determining who was involved in
the accident and also conduct tests sooner.
Commenters were divided on this proposal. Most employers,
particularly motor carriers, liked the option because it would impose
testing costs on State and local authorities, rather than on individual
motor carriers, especially independent owner-operators. They opposed
the proposed imposition of user fees to support this program. One
commenter suggested that the Federal government should pay local or
State governments to perform alcohol testing. A few employers noted
that roadside testing would be too time-consuming and would disrupt
their closely-timed shipment and travel schedules; they prefer
employer-based testing where they have more control over scheduling.
They also noted that the proposal would reduce training costs because
the law enforcement officers already are trained in conducting alcohol
tests. The States and local authorities, including MCSAP agencies,
opposed this option because of the costs (another unfunded mandate
imposed on States by the Federal Government), diversion of law
enforcement personnel from traditional functions, and lack of legal
authority to conduct alcohol tests under their existing statutes
without the requisite probable cause. They believed that without
additional appropriations, the expenses of such a testing program would
lessen the financial resources available for other congressionally-
mandated MCSAP programs, i.e., roadside vehicle safety inspections.
We have decided not to adopt the MCSAP option at this time for
several reasons. On October 28, 1993, President Clinton issued
Executive Order 12875, ``Enhancing the Intergovernmental Partnership,''
which prohibits executive departments from promulgating regulations
that impose an unfunded mandate on State, local and tribal governments,
unless the mandate is required by statute, direct costs are funded by
the Federal Government, or the executive department justifies the need
for the mandate to the Office of Management and Budget (OMB) after
appropriate consultation with the affected governments. The costs of
State-operated random alcohol testing would exceed the total annual
MCSAP funding allocation of $65 million. With current limited budgetary
resources, it is unlikely that the MCSAP program or any other Federal
program will obtain additional appropriations to fund State testing.
Legislation would be needed to collect user fees and use those fees to
cover any additional, necessary MCSAP funding. Moreover, the MCSAP
option could never completely replace employer-based programs; it could
cover only three of the types of testing (random, reasonable suspicion
and post-accident) and only on certain roads. Furthermore, in some
States, the MCSAP program is directed through agencies other than the
police, who would be the likely candidates to do the testing. Before it
could be implemented, this option would require numerous changes to
existing State statutes or constitutions to permit State and local
officials to test without probable cause.
Multi-Agency Coverage
Multi-Agency Coverage In some transportation industries, a
significant percentage of employees are subject to the testing rules of
more than one DOT OA; some are subject to the testing rules of more
than one Federal agency (e.g., employee drivers covered by the
Department of Energy (DOE) may also be covered by FHWA). This is one
reason we have tried to make the DOT OA rules as uniform as possible
(and why we have also consulted closely with other Federal agencies).
Where it does not compromise the effectiveness of the testing program
or other requirements, one DOT OA will defer to another or recognize
the validity of the other's requirements. For example, FHWA defers to
FTA for CDL holders employed by FTA grantees, and FTA defers to FRA for
grantees that are part of the general railroad system of
transportation.
There are different situations in which multi-agency coverage can
occur:
(1) An employee may perform different modal functions for the same
employer. For example, an employee may act as both a pipeline inspector
and a truck driver for a single employer, activities regulated by RSPA
and FHWA, respectively. Such an employee would be designated by the
employer as either a pipeline worker or driver for purposes of random
testing based on which function he or she performs the majority of the
time. The employee would be subject to reasonable suspicion and post-
accident testing under RSPA or FHWA rules while performing either
pipeline or driving functions.
(2) An employee may have two employers. For example, an employee
may fly for one employer and drive for another. That employee will be
subject to two OA random testing requirements and will generally be in
two different pools. As discussed above, however, the employee can be
covered by one random testing pool, e.g., one run by a consortium; in
both situations, the employee will be subject to random testing in
either job at the appropriate industry rate.
The rules require that employees cease safety-sensitive functions
in every mode of transportation, once determined to be in violation of
any one of the OA rules. We note that the Act clearly prohibits the
performance of safety-sensitive functions in the aviation, rail, motor
carrier, or transit industries by an employee who has used alcohol in
violation of any law or any Federal regulation.
We also have continued to consult with other Federal agencies that
are considering developing similar programs during this rulemaking
proceeding in an attempt to make Federal government rules as consistent
as possible.
International Issues
The Act mandates that the requirements for pre-employment,
reasonable suspicion, random and post-accident tests for alcohol (and
drugs) be applied to foreign operators in the aviation, rail and motor
carrier industries to the extent those requirements are consistent with
our international obligations. We must also ``take into consideration
any applicable laws and regulations of foreign countries.'' Because of
the many questions raised about the implementation of this statutory
mandate, we issued advance notices of proposed rulemaking on these
issues. Published elsewhere in today's Federal Register are FHWA, and
FAA NPRMs that propose to cover foreign operators in the U.S., but
would defer implementation until January 1, 1996. During this period,
we will be working through international organizations or bilateral
agreements to achieve programs comparable to DOT's for alcohol and
drugs; if we are unsuccessful at making progress, the rules will go
into effect. Because in their very limited foreign operations in the
U.S., foreign railroad employers already are complying with FRA's
existing alcohol and drug testing requirements, the FRA has published a
notice withdrawing its advance notice of proposed rulemaking elsewhere
in today's Federal Register.
Regulatory Analyses and Notices
General
Each of the OA preambles separately addresses a number of
administrative matters concerning compliance with administrative
requirements in statutes, executive orders and Departmental policies
and procedures. Readers should refer to the individual OA rules for
statements specific to each rule. This common preamble and all the
associated rulemakings published in today's Federal Register have been
classified as significant under Executive Order 12866 and the
Department's regulatory policies and procedures and have been reviewed
by the Office of Management and Budget.
Paperwork Reduction Act
The proposed information collection requirements contained in the
notices of proposed rulemaking were reviewed by the Office of
Management and Budget (OMB) under section 3504(H) of the Paperwork
Reduction Act (44 U.S.C. 3501 et. seq.). Revisions of the information
collection requirements contained in the final rules have been
submitted to OMB for final approval. A Federal Register notice will be
published when that approval has been obtained.
Appendix A to Common Preamble--Bibliography
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Small Doses of Alcohol on a Skill Resembling Driving.'' Her
Majesty's Stationery Office, London.
Evans, M. A., et al. 1974. ``Quantitative Relationship Between Blood
Alcohol Concentration and Psychomotor Performance''. Clinical
Pharmacology and Therapeutics, Vol. 15, No. 3, pp. 253-260.
Federal Transit Administration (U.S. DOT) (1991). ``Substance Abuse
in the Transit Industry.''
Forney, R. B., F. W. Hughes, H. R. Hulpieu, and C. A. Fsbod/ 1961.
``Performance in a Gymkhana Sports Car Event with Low Levels of
Blood Alcohol''. Traffic Safety Research Review, Vol. 5, No. 3, pp.
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Performance in Emergency Traffic Situations''. Accident Analysis and
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Lorazepam''. Journal of Clinical Psychopharmacology, Vol. 3, pp. 66-
71.
Moskowitz, H. 1973. ``Laboratory Studies of the Effects of Alcohol
on Some Variables Related to Driving''. Journal of Safety Research,
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Moskowitz, H., M. Burns, and A. Williams. 1985. ``Skills Performance
at Low Blood Alcohol Levels''. Journal of Studies on Alcohol, Vol.
46.
National Highway Traffic Safety Administration (U.S. DOT) Report to
Congress, February 1991. ``Alcohol Limits for Drivers: A Report on
the Effects of Alcohol and Expected Institutional Responses to New
Limits.''
National Highway Traffic Safety Administration (U.S. DOT) (1988)
``Fatal Accident Reporting System: A Review of Information on Fatal
Traffic Accidents in the United States in 1987''. National Center
for Statistics and Analysis, Washington, D.C.
National Highway Traffic Safety Administration (U.S. DOT) (1988)
``Effects of Low Doses of Alcohol on Driving-related Skills: A
Review of the Evidence.''
National Highway Traffic Safety Administration (U.S. DOT). ``Traffic
Safety Facts 1992--Alcohol.''
National Research Council, Institute of Medicine. ``Under the
Influence? Drugs and the American Work Force.''
O'Neill, B., A. Williams, and K. Dubowski. 1983. ``Variability in
Blood Alcohol Concentrations''. Journal of Studies on Alcohol, Vol.
44, No. 2, pp. 222-230.
Ryder, J. M., S. A. Malin, and C. H. Kinsley. 1981. ``The Effects of
Fatigue and Alcohol on Highway Safety''. Report DOT HS-805 854.
National Highway Traffic Safety Administration, U.S. Department of
Transportation.
U.S. Army (February 1987). ``The Alcohol and Accidents Guide''
U.S. Department of Health and Human Services. ``Preliminary
Estimates from the 1992 National Household Survey on Drug Abuse.''
Wilson, J. R., et al. 1984. ``Effects of Ethanol II. Behavioral
Sensitivity and Acute Behavioral Tolerance''. Alcoholism: Clinical
and Experimental Research, Vol. 8, No. 4, pp. 366-374.
``Zero Alcohol and Other Options'', Special Report 216,
Transportation Research Board, National Research Council, 1987, p.
40.
Issued on January 25, 1994, in Washington, DC.
Federico Pena,
Secretary of Transportation.
David R. Hinson,
Administrator, Federal Aviation Administration.
Rodney E. Slater,
Administrator, Federal Highway Administration.
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.
Gordon J. Linton,
Administrator, Federal Transit Administration.
Ana Sol Gutierrez,
Acting Administrator, Research and Special Programs Administration.
[FR Doc. 94-2027 Filed 2-3-94; 1:00 pm]
BILLING CODE 4910-62-U