PHMSA drug and alcohol testing

Scope

The standard Part 40 Procedures apply to PHMSA-regulated entities, as they do to all Department of Transportation (DOT) regulated companies.

Regulatory citations

• 49 CFR Part 199 Subpart A — General
• 49 CFR Part 199 Subpart B — Drug Testing
• 49 CFR Part 199 Subpart C — Alcohol Misuse Prevention Program

Key definitions

• None

Summary of requirements

Written drug plan required. A written anti-drug plan is required. The plan must contain:

• Methods and procedures for compliance with all requirements, including the employee assistance program;
• The name and address of all laboratories that analyze the specimens collected for drug testing;
• The name and address of the current Medical Review Officer (MRO), and Substance Abuse Professional (SAP); and
• Procedures for notifying employees of the coverage and provisions of the plan.

Types of drug testing required. Each pipeline operation shall conduct the following types of drug tests as required and/or appropriate:

• Pre-employment testing. No person may be used as an employee (or contractor) unless that person passes a drug test or is covered by an anti-drug program that conforms to the requirements of Part 199.
  
• Post-accident testing. As soon as possible (but no later than 32 hours after an accident,) any employee whose performance either contributed to the accident or cannot be completely discounted as a contributing factor to the accident must be drug-tested. Any decision not to test must be based on the best information available immediately after the accident that the employee’s performance could not have contributed to the accident or that (because of the time between that performance and the accident) it is not likely that a drug test would reveal whether performance was affected by drug use.
  
• Random testing. The minimum annual percentage rate for random drug testing shall be 50% of covered employees unless the reported positive rate for the entire industry warrants a reduction in the testing level. Each year, the Administrator will publish in the Federal Register the minimum annual percentage rate for random drug testing of covered employees. The new minimum annual percentage rate for random drug testing will be applicable starting January 1 of the calendar year following publication.
  • When the minimum annual percentage ratefor random drug testing is 50%, the Administrator may lower this rate to 25% of all covered employees if the Administrator determines that the data received under the reporting requirements of 199.119 for two consecutive calendar years indicate that the reported positive rate is less than 1.0%.
  • If the minimum annual percentage rate for random drug testing is 25%, and the data received under the reporting requirements of 199.119 for any calendar year indicate that the reported positive rate is equal to or greater than 1.0%, the Administrator will increase the minimum annual percentage rate for random drug testing to 50% of all covered employees.
  Selection of employees for random drug testing must be made using 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. Under the selection process used, each covered employee must have an equal chance of being tested each time selections are made.
  
  A sufficient number of covered employees must be randomly selected for testing during each calendar year to equal an annual rate no less than the minimum annual percentage rate determined by the Administrator. If the random drug testing is conducted through a consortium, the number of employees to be tested may be calculated for each individual operator or may be based on the total number of covered employees covered by the consortium who are subject to random drug testing at the same minimum annual percentage rate under this subpart or other DOT drug testing rule. Random drug tests conducted must be unannounced and the dates for administering them must be spread reasonably through the calendar year.
  
  If a covered employee is subject to random drug testing under the drug testing rules of more than one DOT agency for the same operator, the employee will be subject to random drug testing at the percentage rate established for the calendar year by the DOT agency regulating more than 50% of that employee’s function. If an operation has to conduct random drug testing under drug testing rules of more than one DOT agency, it may:
  • Establish separate pools for random selection, with each pool containing covered employees subject to testing at the same required rate; or
  • Randomly select such employees for testing at the highest percentage rate established for the calendar year by any DOT agency to which the operator is subject.
• Testing based on reasonable cause. Employees must be drug tested when there is reasonable cause to believe that employee is using a prohibited drug. A decision to test must be based on a reasonable belief that the person is using a prohibited drug; based on specific, contemporaneous physical, behavioral, or performance indicators. At least two of the employee’s supervisors, one of whom is trained in detection of possible symptoms of drug use, must substantiate and concur in the decision to test. Concurrence between the two supervisors may be by telephone. In the case of operators with 50 or fewer employees subject to testing, only one supervisor of the employee trained in detecting possible drug use symptoms is necessary to substantiate a decision to test.
• Return-to-duty testing.A covered employee who refuses to take (or has a positive drug test) may not return to duty in the covered function until that employee has complied with provisions of the DOT Part 40 Procedures concerning substance abuse professionals (SAP) and a return-to-duty process.
• Follow-up testing. A covered employee who refuses to take (or has a positive drug test) will be subject to unannounced follow-up drug tests administered following the covered employee’s return to duty. The number and frequency of such follow-up tests shall be determined by a SAP, but must consist of at least six tests in the 12 months following the employee’s return to duty.
  
  Follow-up testing may also include testing for alcohol as directed by the SAP, to be performed in accordance with 49 CFR Part 40. Follow-up testing shall not exceed 60 months from the date of the employee’s return to duty. The SAP may terminate the requirement for follow-up testing at any time after the first six tests have been administered, if the SAP determines such testing is no longer necessary.