PPP-51

EAST TENNESSEE STATE UNIVERSITY
SECTION:     PPP-51
SUBJECT:     Alcohol and Drug Testing Policy

   I.      POLICY

  II.     PURPOSE

 III.    APPLICABILITY

  IV.    CHEMICAL EFFECTS

  V.     PENALTIES

VI.     DEFINITIONS

VII.    PROHIBITED ALCOHOL AND CONTROLLED           SUBSTANCE-RELATED CONDUCT

VIII.   CONSEQUENCES TO DRIVERS ENGAGING IN CONDUCT PROHIBITED BY THE FEDERAL HIGHWAY ADMINISTRATION'S DRUG USE AND ALCOHOL MISUSE RULES

IX.      PROCEDURES USED FOR TESTING

X.       TYPES OF TESTING

XI.     RANDOM ALCOHOL AND CONTROLLED SUBSTANCES          REQUIREMENTS

XII.    REASONABLE SUSPICION ALCOHOL AND CONTROLLED SUBSTANCES TESTING

XIII.   RETENTION OF RECORDS

XIV.   MEDICAL REVIEW OFFICER'S NOTIFICATION OF TEST RESULTS RETENTION OF RECORDS

XV.    RELEASE OF ALCOHOL AND CONTROLLED SUBSTANCES TEST INFORMATION BY PREVIOUS EMPLOYERS 

XVI.   ANNUAL CALENDAR YEAR SUMMARY

XVII.  PROPER APPLICATION OF THE POLICY

XVIII. NOTICE OF POLICY EDUCATION MATERIALS & CERTIFICATE OF RECEIPT

TENNESSEE BOARD OF REGENTS COMMERCIAL DRIVERS LICENSE (CDL) DRIVERS DRUG AND ALCOHOL TESTING POLICY CONTACT

Verification of Receipt of Education Materials

Attachment A

Attachment B

I.          POLICY

A.        It is our goal to provide a healthy, satisfying working and learning environment which promotes personal opportunities for growth. In meeting these goals, it is our policy to (1) assure that employees and students are not impaired in their ability to learn or perform assigned duties in a safe, productive, and healthy manner; (2) create an environment free from the adverse effects of drug and alcohol substance abuse or misuse; (3) prohibit the unlawful manufacture, distribution, dispensing, possession, or use of alcohol and controlled substances; and (4) to encourage students and employees to seek professional assistance any time personal problems, including alcohol or drug dependency, adversely affect their ability to learn or perform their assigned duties.  

B.        THEREFORE, IT IS THE POLICY OF THE TENNESSEE BOARD OF REGENTS AND EAST TENNESSEE STATE UNIVERSITY THAT NO EMPLOYEE PERFORMING SAFETY‑SENSITIVE DUTIES WHO IS REQUIRED TO HAVE A COMMERCIAL DRIVER'S LICENSE (CDL)  OR STUDENT REQUIRED TO HAVE A CDL TO PARTICIPATE IN A TRUCK DRIVER TRAINING PROGRAM WILL BE ALLOWED TO PERFORM A SAFETY‑SENSITIVE FUNCTION WHILE UNDER THE INFLUENCE OR WITH DETECTABLE AMOUNTS OF ALCOHOL OR ILLEGAL DRUGS, NOR MANUFACTURE, DISTRIBUTE, POSSESS OR USE SUCH DURING WORK OR CLASS HOURS.   

APPROPRIATE DISCIPLINE, UP TO AND INCLUDING TERMINATION OF THE EMPLOYEE OR EXPULSION OF THE STUDENT, WILL BE TAKEN FOR THOSE NOT IN COMPLIANCE WITH THIS POLICY.   

NO EMPLOYEE OR STUDENT WILL BE ALLOWED TO PERFORM SAFETY‑SENSITIVE FUNCTIONS WHILE UNDER THE INFLUENCE OF PRESCRIBED OR OTHER LAWFULLY OBTAINED DRUGS TAKEN IN THE APPROPRIATE DOSAGE WHEN THE TAKING OF SUCH DRUG IMPAIRS THE EMPLOYEE'S OR STUDENT'S ABILITY TO PERFORM SAFETY‑SENSITIVE FUNCTIONS.

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II.      PURPOSE

The purpose of this policy is to assure driver fitness and to protect our employees, students and the public from the risks posed by the use of alcohol and prohibited drugs. This policy is also intended to comply with applicable Federal regulations governing workplace anti‑drug programs. The Federal Highway Administration (FHWA) of the U.S. Department of Transportation has enacted 49 CFR Part 382 et seq., and Part 395.2 ("the rules") that mandate urine drug testing and evidential breath testing device (EBT) alcohol testing for safety‑sensitive positions and prevent performance of safety‑sensitive functions when there is a positive test result. The U.S. Department of Transportation (USDOT) has also enacted 49 CFR Part 40 that sets standards for the collection and testing of urine and breath specimens.

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III.     APPLICABILITY

Pursuant to FHWA Rule 49 CFR Part 382 et seq., as of January 1, 1996, the Tennessee Board of Regents institutions to which the rules apply, will implement mandatory alcohol, and controlled substance ("drug") testing of persons in, or applying for safety-sensitive positions requiring CDLs, as well as students applying for enrollment or enrolled in truck driver training programs. This policy applies to those persons. The testing will be performed by professionals under contract with the Tennessee Board of Regents, and conform to guidelines and requirements established by Federal Rule 49 CFR Part 40.

Beginning in December 1995, each person directing or supervising persons with CDLs will undergo training regarding the implementation of the alcohol and drug testing policy, and must implement the policy in the workplace.

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IV.     CHEMICAL EFFECTS

(See Attachment A - Physical Affects)

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V.     PENALTIES

Drivers who receive a verified positive drug or confirmed alcohol presence test will be removed from performance of safety-sensitive functions in the manner described herein, and will also be subject to disciplinary action. For employees, this action may be up to and including termination. Applicants for employment who receive a verified positive drug or confirmed alcohol presence test will be subject to withdrawal of any offer of employment made prior to the test.

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VI.     DEFINITIONS

  1. " Accident" - an accident involving a commercial motor vehicle in which there is either a fatality, an injury treated away from the scene, or a vehicle is required to be towed from the scene.
     
  2. " Alcohol" - the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols, including methyl and isopropyl alcohol.
     
  3. " Alcohol use" - the consumption of any beverage, mixture, or preparation, including any medication containing alcohol.
     
  4. " Commercial motor vehicle (CMV)" - a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle --

  5.  
    1. Has a gross combination weight of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or
    2. Has a gross vehicle weight rating of 26,001 or more pounds; or
    3. Is designed to transport 16 or more passengers, including the driver; or
    4. Is of any size and is used in the transportation of hazardous materials requiring placards.
       
  6. " Driver" - any person, either employee or student, who has a CDL and operates a commercial motor vehicle. For the purpose of pre-employment testing, the term driver includes a person applying to drive a commercial motor vehicle and a student who has applied for enrollment in a truck driver training course or program.
     
  7. " Evidential breath testing device (EBT)" - A device approved by the National Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath and placed on NHTSA's "Conforming Products List of Evidential Breath Measurement Devices" (CPL).
     
  8. " Medical Review Officer (MRO)" - A licensed physician (medical doctor or doctor of osteopathy) responsible for receiving laboratory results generated by an employer's drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's confirmed positive test result together with his or her medical history and any other relevant biomedical information.
     
  9. " Performing (a safety-sensitive function)" - any period in which the driver is actually performing, ready to perform, or immediately able to perform any safety sensitive functions.
     
  10. " Prohibited Substances"- addressed by this policy include the following:

  11.  
    1. Illegally Used Controlled Substances or Drugs

      Any illegal drug or any substance identified in Schedules I through V of Section 202 of the Controlled Substance Act (21 U.S.C. 812), and as further defined by 21 CFR 1308.11 through 1308.15. This includes, but is not limited to: marijuana, amphetamines, opiates, phencyclidine (PCP), and cocaine, as well as any drug not approved for medical use by the U.S. Drug Enforcement Administration or the U.S. Food and Drug Administration. Illegal use includes use of any illegal drug, misuse of legally prescribed drugs, and use of illegally obtained prescription drugs.
       
    2. Legal Drugs

      The appropriate use of legally prescribed drugs and non-prescription medications is not prohibited and will not result in discipline or the consequences outlined in Section VIII. However, the use of any substance which carries a warning label that indicates that mental functioning, motor skills, or judgment may be adversely affected should be reported to supervisory personnel and medical advice should be sought, as appropriate, before performing safety-sensitive functions.

      A legally prescribed drug means that an individual has a prescription or other written approval from a physician for the use of a drug in the course of medical treatment. It must include the patient's name, the name of the substance, quantity/amount to be taken, and the period of authorization. The misuse or abuse of legal drugs while performing safety-sensitive functions is prohibited.
       
    3. Alcohol

      The use of beverages or other substances containing alcohol, including medications, such that alcohol is present in the body while performing safety-sensitive functions, is prohibited. The concentration of alcohol is expressed in terms of grams of alcohol per 210 liters of breath as measured by an evidential breath testing device (EBT).
       
  12. " Reasonable Suspicion" - Belief that the driver has violated the alcohol or controlled substances prohibitions, based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. 
     
  13. " Refusal to submit (to an alcohol or controlled substance test)"
  14. A driver (1) fails to provide adequate breath for testing without a valid medical explanation after he or she has received notice of the requirement for breath testing, (2) fails to provide adequate urine for controlled substances testing without a valid medical explanation after he or she has received notice of the requirement for urine testing, or (3) engages in conduct that clearly obstructs the testing process.
     
  15. " Return to duty" - for both employees and students, this term means returning to perform safety-sensitive functions after engaging in prohibited conduct. No employment relationship is implied or established by use of or reference to this term with regard to students.
     
  16. " Safety-sensitive function" - Any of those on-duty functions set forth in 49 CFR Part 395.2 On-Duty Time, paragraphs 1 through 10 as listed below:
    1. All time at a carrier or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer.
       
    2. All time inspecting equipment as required by the Federal Motor Carrier Safety Regulations (FMCSRs), or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time.
       
    3. All time spent at the driving controls of a commercial motor vehicle.
       
    4. All time, other than driving time, spent on or in a commercial motor vehicle (except for time spent resting in the sleeper berth).
       
    5. All time loading or unloading a commercial motor vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded.
       
    6. All time spent performing the driver requirements associated with an accident.
       
    7. All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
       
    8. All time spent providing a breath sample or urine specimen, including travel time to and from the collection site, in order to comply with the random, reasonable suspicion, post-accident, or follow-up testing, whichever is applicable.
       
    9. Performing any other work in the capacity of, or in the employ or service of, a common, contract or private motor carrier; and,
       
    10. Performing any compensated work for any nonmotor carrier entity.
  17. " Substance abuse professional (SAP)" - A licensed physician (medical doctor or doctor of osteopathy), or a licensed or certified psychologist, social worker, employee assistance professional, or addiction counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission) with knowledge of and clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders.
     
  18. " Trained Supervisor" - A CDL driver's supervisor trained as required under the rules to identify the physical, behavioral, speech and performance indicators of probable alcohol misuse and use of controlled substances by employees. With reference to students, the supervisor will be the student's instructor.

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VII.    PROHIBITED ALCOHOL AND CONTROLLED
           SUBSTANCE-RELATED CONDUCT

The following alcohol and controlled substance-related activities are prohibited by the FHWA drug use and alcohol misuse rules for CDL drivers of commercial motor vehicles (CMVs):

  1. Reporting for duty or instruction, or remaining on duty or for instruction requiring the performance of safety-sensitive functions as either employee or student while having an alcohol concentration of 0.04 or greater.
     
  2. Being on duty or operating a CMV while the driver possesses alcohol. This includes the possession of medicines containing alcohol (prescription or over-the-counter).
     
  3. Using alcohol within four (4) hours prior to performing safety-sensitive functions.
     
  4. When required to take a post-accident alcohol test, using alcohol within eight hours following the accident or prior to undergoing a post-accident alcohol test, whichever comes first.
     
  5. Refusing to submit to an alcohol or controlled substance test required by post-accident, random, reasonable suspicion or follow-up testing requirements.
     
  6. Reporting for duty or instruction, or remaining on duty or for instruction, requiring the performance of safety-sensitive functions, when the driver uses any controlled substance, except when instructed by a physician who has advised the driver that the substance does not adversely affect the driver's ability to safely operate a CMV.
     
  7. Reporting for duty or instruction, remaining on duty or for instruction, requiring the performance of safety-sensitive functions, or performing a safety-sensitive function, if the driver tests positive for controlled substances.
     
  8. No supervisor shall allow a driver to perform a safety-sensitive function unless the result of the breath alcohol test indicates a breath alcohol level of less than 0.02, and the supervisor has received a controlled substance test result for the driver from the medical review officer (MRO) indicating a verified/negative result.
     
  9. If the results of the driver's alcohol test indicate a blood alcohol concentration of 0.02 or greater, but less than 0.04, the driver shall not be permitted to perform safety-sensitive functions until the start of the driver's next regularly scheduled duty period or instructional period, but not less than 24 hours following the administration of the test.
     
  10. The misuse or abuse of legal drugs while performing safety-sensitive functions.

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VIII.  CONSEQUENCES TO DRIVERS ENGAGING IN CONDUCT PROHIBITED BY THE FEDERAL HIGHWAY ADMINISTRATION'S DRUG USE AND ALCOHOL MISUSE RULES

Drivers who are known to have engaged in prohibited behavior, with regard to alcohol misuse, or use of controlled substances, are subject to the following consequences:

  1. Drivers shall not be permitted to perform safety-sensitive functions.
     
  2. Drivers shall be advised by their supervisor of the resources available to them in evaluating and resolving problems associated with the misuse of alcohol or use of controlled substances including, if an employee, a referral to the state Employee Assistance Program (EAP).
     
  3. Before returning to duty requiring the performance of a safety-sensitive function, drivers shall be evaluated by a substance abuse professional (SAP) who shall determine what assistance, if any, the driver needs in resolving problems associated with alcohol misuse or controlled substances use.
     
  4. Before a driver returns to duty requiring performance of a safety-sensitive function, he or she shall undergo a return-to-duty alcohol test with a result indicating a breath alcohol level of less than 0.02 if the conduct involved alcohol, or a controlled substance test with a verified negative result if the conduct involved controlled substance use.
     
  5. In addition, each driver identified as needing assistance in resolving problems associated with alcohol or controlled substances shall be evaluated by a SAP to determine that the driver has followed the rehabilitation program prescribed.
     
  6. The driver shall also be subject to unannounced follow-up alcohol and controlled substance testing. The number and frequency of such follow-up testing shall be as directed by the SAP, and consist of at least six tests in the first 12 months.
     
  7. Any CDL driver performing safety-sensitive functions engaging in the manufacture, distribution, possession, or use of prohibited substances or under the influence of such while on State premises, while on State business, or during instructional periods, will be subject to disciplinary action up to and including termination for employees and expulsion for students. Law enforcement shall be notified, as appropriate, where criminal activity is suspected.
     
  8. Any CDL driver performing safety-sensitive functions who is reasonably suspected by a trained supervisor of being intoxicated, impaired, under the influence of a prohibited substance, or not fit for duty, shall be suspended from job duties, or if a student, precluded from performing safety-sensitive functions, pending verification of condition. Drivers found to be under the influence of prohibited substances or who fail to pass a drug or alcohol test shall be removed from duty and subject to disciplinary action, up to and including termination or expulsion. A drug or alcohol test is considered positive if the individual is found to have a quantifiable presence of a prohibited substance in the body above the minimum thresholds defined in 49 CFR Part 40, as described in this policy statement.
     
  9. No CDL driver performing safety-sensitive functions should report for duty or instruction, or remain on duty or for instruction when his or her ability to perform assigned functions is adversely affected by alcohol or when his or her blood alcohol concentration is 0.02 or greater. No CDL driver performing safety-sensitive functions shall use alcohol while on duty. No CDL driver performing safety-sensitive functions shall have used alcohol within four hours of reporting for duty. Violation of these provisions is prohibited and shall result in disciplinary action up to and including termination or expulsion.
     
  10. All CDL drivers performing safety-sensitive functions will be subject to urine drug testing and breath alcohol testing. Any driver who refuses to comply with a request for testing, who provides false information in connection with a test, or who attempts to falsify test results through tampering, contamination, adulteration, or substitution shall be removed from duty immediately, and his/her employment terminated or expelled from the program. Refusal can include an inability to provide a specimen or breath sample without a valid medical explanation, as well as a verbal declaration, obstructive behavior, or physical absence resulting in the inability to conduct the test.
     
  11. All CDL drivers performing safety-sensitive functions are encouraged to make use of the available resources for treatment for alcohol and substance abuse problems. Any CDL driver performing safety-sensitive functions who refuses or fails to comply with requirements for treatment, after care, or return to duty shall be subject to disciplinary action, up to and including termination or expulsion.
     
  12. Any CDL driver who performs safety-sensitive functions who tests positive for the presence of illegal drugs or alcohol above the minimum thresholds set forth in 49 CFR Part 40, who is not terminated or expelled, will be evaluated by a SAP. The SAP will evaluate each driver to determine what assistance, if any, the driver needs in resolving problems associated with prohibited substance abuse or misuse.
     
  13. Assessment by a SAP does not shield a driver from disciplinary action or guarantee employment or reinstatement with the institution or continued enrollment. Tennessee Board of Regents and institutional disciplinary rules, policies and procedures should be consulted to determine the penalty for performance-based infractions and violation of policy provisions. Each disciplinary or termination action shall be handled on a case-by-case basis.

    Additionally, when imposing discipline on a student, the school must comply with the student code of conduct disciplinary procedures.
     
  14. If a driver is allowed to return to duty, he or she must properly follow the rehabilitation program prescribed by the SAP, pass return to duty drug and alcohol tests, and be subject to unannounced follow-up tests for a period of one to five years. The cost of any treatment or rehabilitation services will be paid directly by the driver or his insurance provider. Employees will be allowed to take accumulated sick leave, annual leave, compensatory leave and any leave allowed under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), to participate in the prescribed rehabilitation program.

    With regard to students, absences incurred due to required treatment will be evaluated under the institution's policy on progression and retention. Students should be informed that drug or alcohol use resulting in or requiring their absence from the program to undergo treatment may result in their academic suspension or termination from the program.
     
  15. CDL employees removed from safety-sensitive functions as a result of tests that indicate the misuse of alcohol and/or the use of controlled substances may, at the discretion of the appointing authority, be allowed to take sick, annual and/or compensatory leave or, be placed on leave without pay, including leave allowed under the FMLA and the ADA, for the removal periods required under the rules for such drivers.

    With regard to students, absences incurred due to removal periods will be evaluated under the institution's policy on progression and retention. Students should be informed that drug and alcohol use resulting in or requiring absence from the program during the removal periods may result in their academic suspension or termination from the program.

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IX.     PROCEDURES USED FOR TESTING

(See Attachment B, Alcohol and Controlled Substances Testing Procedures and also available in the Office of Human Resources.)

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X.     TYPES OF TESTING

Employees or students required to obtain CDLs will be tested for alcohol and controlled substances. The following are the types of tests required to be performed:

Pre-employment or pre-enrollment Testing (Drug only)
Random Testing
Reasonable Suspicion Testing
Post-Accident Testing
Return-to-Duty Testing
Follow-up Testing

  1. Split Sample Procedures
  2. Controlled substances tests conducted on CDL drivers must follow split sample procedures. Under this provision, a driver whose urine sample has tested positive for a controlled substance has the option (within 72 hours of being notified by the MRO) of having the other portion of the split sample tested at another laboratory. The driver will be required to pay for the second test in advance. If the second portion of the sample also tests positive, then the driver is subject to the sanctions contained in the regulations and will not be reimbursed for such test. If the second portion produces a negative result, or for any reason the second portion is not available, the test is considered negative and no sanctions are imposed and the driver will be reimbursed by the institution for the cost of the test.

  3. Pre-Employment/Pre-Enrollment Controlled Substance Testing
    1. Prior to the first time a driver performs safety-sensitive functions, the driver must submit to testing for controlled substances. For employees, the tests shall be conducted after the offer of employment has been accepted, but before the individual reports for duty. For students, the tests shall be conducted after receiving a conditional acceptance of the enrollment application. Final acceptance and enrollment in the program is contingent upon the receipt of negative test results.
       
    2. No driver shall be allowed to perform a safety-sensitive function unless the driver's supervisor has received a controlled substance test result from the medical review officer (MRO) indicating a verified negative result.
       
    3. Exceptions:
       
      1. The institution is not required to administer a pre-employment controlled substance test if the following conditions are met:

      2.  
        1. The driver must have participated in a drug testing program meeting the requirements of this rule within the previous 30 days; and
           
        2. While participating in this program, the driver must have either been tested for controlled substances in the previous 6 months, or participated in a random drug testing program for the previous 12 months; and
           
        3. The institution must ensure that no prior employer of the driver has record of violations of any USDOT controlled substance use rule for the driver in the previous 6 months.
           
      3. In order to exercise the exception listed above, the institution must first contact the controlled substance testing program(s) in which the driver has participated and obtain the following information:

      4.  
        1. The name(s) and address(es) of the program(s). This would generally be the driver's prior and/or current employer.
           
        2. Verification that the driver participates or participated in the program(s).
           
        3. Verification that the program conforms to the required procedures set forth in 49 Part 40.
           
        4. Verification that the driver is qualified under this rule, including that the driver has not refused to submit to an alcohol or controlled substance test.
           
        5. The date the driver was last tested for controlled substances.
           
        6. The results of any drug test administered in the previous six months, and any violations of the controlled substance rules.

NOTE: An institution which uses a driver more than once a year, but does not employ the driver, must assure itself at least once every six months that the driver participates in a drug testing program which meets the requirements of the rule.

  1. The institution reserves the right to withdraw or otherwise terminate the employment of drivers, if the results of the driver's pre-employment controlled substances test indicates a verified positive result. The institution reserves the right to withdraw a conditional acceptance of enrollment if the results of the applicant's pre-enrollment controlled substances test indicates a verified positive result.
  1. Return-to-Duty and Follow-Up Testing
  1. Return-To-Duty Testing

The institution shall ensure that before a driver returns to duty requiring the performance of a safety-sensitive function, after engaging in prohibited conduct regarding alcohol misuse, the driver shall undergo a return-to-duty alcohol test indicating a breath alcohol concentration of less than 0.02.

The institution shall also ensure that before a driver returns to duty requiring the performance of a safety-sensitive function, after engaging in prohibited conduct regarding controlled substance use, the driver shall undergo a return-to-duty controlled substances test with a result indicating a verified negative result for controlled substances use.

In the event a return-to-duty test is required, the driver must also be evaluated by a SAP and participate in any assistance program, such as the Employee Assistance Program (EAP), prescribed.

Employees will be allowed to take the following accumulated leave they are eligible for: annual, sick, compensatory, leave without pay, FMLA, ADA, for return-to-duty testing and SAP evaluation.

  1. Follow-Up Testing

Following a determination that a driver is in need of assistance in resolving problems associated with alcohol misuse and/or use of controlled substances, the institution shall ensure that the driver is subject to unannounced follow-up alcohol and/or controlled substances testing as directed by the SAP. The driver shall be subject to a minimum of six follow-up controlled substance and/or alcohol tests in the first 12 months.

Alcohol follow-up testing shall be performed only when the driver is performing safety-sensitive functions, or immediately prior to performing or immediately after performing safety-sensitive functions. Drivers referred for follow-up testing shall be considered to be on duty during the time period that they are being tested, including travel time to and from the testing site, and shall be compensated accordingly.
 

  1. Post-Accident Alcohol and Controlled Substances Testing
  1. As soon as practicable following an accident involving a commercial motor vehicle, the institution shall test for alcohol and controlled substances each surviving driver when either:
    1. the accident involved a fatality; or
    2. The driver receives a citation under state or local law for a moving traffic violation arising from the accident. 
       
    * For the purpose of this policy, an accident is defined as an incident involving a commercial motor vehicle in which there is either a fatality, an injury treated away from the scene, or a vehicle is required to be towed from the scene.

  1. When a required controlled substances test has not been administered within a reasonable time frame following the accident, the following actions shall be taken:
Time Elapsed Action Required
2 hours If the driver has not submitted to an alcohol test at this time, the institution shall prepare and maintain on file a record stating the reason a test was not promptly administered.
8 hours Cease attempts to administer an alcohol test, and prepare and maintain the record described above.
32 hours If the driver has not submitted to a controlled substance test at this time, the employer shall cease attempts to administer the test, and prepare and maintain the record described above.
  1. Important Note

    Nothing in this document (or the rule itself) should be construed as to require the delay of necessary medical attention for injured people following an accident, or to prohibit a driver from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care.

  2. Driver's responsibility:
  3. A driver who is subject to post-accident testing must remain available, or the institution may consider the driver to have refused to submit to testing. The driver subject to post-accident testing must refrain from consuming alcohol for eight hours following the accident, or until he or she submits to an alcohol test, whichever comes first.

  4. Institution's responsibility:

    1. The institution shall provide drivers with necessary post-accident information, procedures and instructions, prior to the driver operating a CMV, so that drivers will be able to comply with the requirements of this rule.
       
    2. **The FHWA recognizes post-accident tests conducted by Federal, State and local officials as meeting the requirements of this rule under the following conditions: 
      1. The official must have independent authority to conduct the test;
         
      2. The test must conform to Federal, State or local requirements.
         
      3. Alcohol tests require blood or breath sample; and
         
      4. Controlled substances tests require urine sample.
         
    3. Drivers referred for post-accident testing shall be considered to be on duty during the time period that they are being tested, including travel time to and from the testing site, and shall be compensated accordingly.

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XI.     RANDOM ALCOHOL AND CONTROLLED SUBSTANCES
          REQUIREMENTS

  1. Random Alcohol Testing Requirements
  2. Random alcohol testing shall be conducted in accordance with the following requirements:
     

    1. Random alcohol testing shall be administered at a minimum annual rate of 25 percent of the average number of driver positions.
       
    2. The institution shall ensure that random alcohol tests are unannounced and spread reasonably throughout the calendar year.
       
    3. The institution shall ensure that drivers selected for random alcohol tests proceed immediately to the testing site upon notification of being selected.
       
    4. A driver shall only be tested for alcohol while the driver is performing safety-sensitive functions, immediately prior to performing or immediately after performing safety-sensitive functions.

  3. Alcohol Testing Rate
  1. The FHWA Administrator may decide to increase or decrease the minimum annual percentage rate for random alcohol testing based on the reported violation rate for the entire industry. The decision to change the testing rate will be made according to the following results:
Violation  Rate Testing Rate
Less than .5% for 2 consecutive years  10%
.5% - 1.0%       25%
1.0% or greater     50%
  1. Each year, the FHWA Administrator will publish in the Federal Register the minimum annual percentage rate for random alcohol testing of drivers. The new rate will become applicable on January 1 of the following year.
     
  2. The first year a reduction in the minimum rate would be possible is 1999, due to the fact the data must be for the entire industry (for two years), which would be reported in 1998. Only one year of data is necessary to raise the minimum rate; however, two years are required to lower the rate.
  1. Random Controlled Substances Testing
    1. Random controlled substances testing shall be conducted in accordance with the following requirements:
      1. Random controlled substances testing shall be administered at a minimum annual rate of 50 percent of the average number of driver positions.
         
      2. The institution shall ensure that random controlled substances tests are unannounced and spread reasonably throughout the calendar year.
         
      3. The institution shall ensure that drivers selected for random controlled substances tests proceed immediately to the testing site upon notification of being selected.
         
      4. In the event a driver, who is selected for a random controlled substances test, is on vacation or an extended medical absence, the agency can either select another driver for testing or keep the original selection confidential until the driver returns.
         
    2. Controlled Substances Testing Rate
    3. The FHWA has proposed to lower the random testing rate to 25 percent if the industry-wide random positive rate is less than 1.0 percent for two consecutive calendar years, while testing at 50 percent. The rate would increase back to 50 percent if the industry random positive rate were 1.0 percent or higher for any subsequent year.
       

  2. On-Duty Time
  3. Drivers referred for random testing shall be considered to be on duty during the time period that they are being tested, including travel time to and from the testing site, and shall be compensated accordingly.

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XII.     REASONABLE SUSPICION ALCOHOL AND CONTROLLED
           SUBSTANCES TESTING

  1. The institution must require a driver to submit to an alcohol or controlled substance test when the agency has reasonable suspicion to believe the driver has violated the alcohol or controlled substances prohibitions.
  2. " Reasonable Suspicion" - Belief that the driver has violated the alcohol or controlled substances prohibitions, based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver.
     

  3. Supervisor Training
  4. The required observations for alcohol and/or controlled substances reasonable suspicion testing shall be made by a supervisor or state official who is trained in accordance with the following requirements:

    1. The institution must ensure persons designated to determine whether reasonable suspicion exists to require a driver to undergo alcohol or controlled substances testing receive one hour of training on detection and documentation of alcohol misuse and one hour of training on detection and documentation of controlled substances use.
       
    2. The training shall cover the physical, behavioral, speech and performance indicators of probable alcohol misuse and use of controlled substances.

  5. Alcohol
  6. Alcohol testing is authorized only if the observations are made during, just before, or just after the period of the work day the driver is required to be in compliance.

    If a reasonable suspicion alcohol test is not administered within two hours following the observations, the institution shall prepare and maintain on file a record stating the reasons the alcohol test was not administered promptly. In addition, if not administered within eight hours, the institution shall cease attempts to administer the test, and shall prepare and maintain the record listed above.

    The supervisor who makes the determination that reasonable suspicion exists to conduct an alcohol test shall not conduct the alcohol test.

  7. Records
  8. A written record shall be made of the observations leading to a controlled substances test, and signed by the supervisor or official who made the observations.

    NOTE: The mere possession of alcohol does not constitute a need for reasonable suspicion testing, which must be based on observations concerning the driver's appearance, behavior, speech, or body odor. However, possession of alcohol while on duty or in class is conduct prohibited by this policy.
     

  9. On-Duty Time
  10. Drivers referred for reasonable suspicion testing shall be considered to be on duty during the time period that they are being tested, including travel time to and from the testing site, and shall be compensated accordingly.

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XIII.     RETENTION OF RECORDS

  1. This document explains which controlled substance and alcohol test records must be completed and maintained, where they must be maintained and for how long. All records shall be maintained in a secure location with controlled access.

  2. Required period of retention:
Document to be maintained Period required 
to be Maintained
Alcohol test results indicating a breath 
     alcohol concentration of 0.02 or greater
 5 yrs.
Verified positive controlled substance test results  5 yrs.
Refusals to submit to required alcohol or controlled
     substance tests
5 yrs.
Required calibration of Evidential Breath Testing
     Devices (EBT's)
5 yrs.
Substance Abuse Professional's (SAP) evaluations and
     referrals
5 yrs.
Annual calendar year summary 5 yrs.
Records related to the collection process (except
    calibration) and required training
2 yrs
Negative and canceled controlled substance test results 1 yr.
Alcohol test results indicating a breath alcohol
     concentration less than 0.02
1 yr.
  1. Types of records required to be maintained:
     
    1. Records related to the collection process:
       
      1. Collection logbooks (if used)
      2. Documents related to the random selection process
      3. Calibration documentation for EBT's
      4. Documentation of Breath Alcohol Technician (BAT) training
      5. Documentation of reasoning for reasonable suspicion testing
      6. Documentation of reasoning for post-accident testing
      7. Documents verifying a medical explanation for the inability to provide adequate breath or urine for testing
      8. Consolidated annual calendar year summaries
         
    2. Records related to the driver's test results:
       
      1. Institution's copy of the alcohol test form, including results
      2. Institution's copy of the drug test chain of custody and control form
      3. Documents sent to the institution by the Medical Review Officer
      4. Documentation of any driver's refusal to submit to a required alcohol or controlled substance test
      5. Documents provided by a driver to dispute results of test
         
    3. Documentation of any other violations of controlled substance use or alcohol misuse rules
       
    4. Records related to evaluations and training:
       
      1. Records pertaining to SAP's determination of driver's need for assistance
      2. Records concerning a driver's compliance with SAP's recommendations
         
    5. Records related to education and training:
       
      1. Materials on drug and alcohol awareness, including a copy of the institution's policy on drug use and alcohol misuse
      2. Documentation of compliance with requirement to provide drivers with educational material, including driver's signed receipt of materials
      3. Documentation of supervisor training
      4. Certification that training conducted under this rule complies with all requirements of the rule
         
    6. Records related to drug testing:
       
      1. Agreements with collection site facilities, laboratories, and MROs.
      2. Names and positions of officials and their role in the TBR/institution's alcohol and controlled substance testing program
      3. Quarterly statistical summaries of urinalysis (40.29 (g) (6))
      4. The TBR/institution's drug testing policy and procedures

  2. Location of records:
  3. All required records shall be maintained in a secure location with limited access. Records shall be made available for inspection at the appropriate institution's principal place of business within two business days after a request has been made by an authorized representative of the Federal Highway Administration.

    For example: Specific records may be maintained on computer, or at a regional or district office, provided the records can be made available upon request from FHWA within two working days.

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XIV.     MEDICAL REVIEW OFFICER'S NOTIFICATION OF TEST RESULTS ETENTION OF RECORDS

  1. Medical Review Officer

    The Medical Review Officer (MRO) is a licensed physician (medical doctor or doctor of osteopathy) responsible for receiving laboratory results generated by an employer's drug testing program. The MRO shall have knowledge of substance abuse disorders and have appropriate medical training to interpret and evaluate an individual's confirmed positive test result, together with his/her medical history and any other relevant biomedical information.
  1. Employer Notification
  1. The MRO may report controlled substances test results to the institution by any means of communication; however, a signed, written notification must be forwarded within three business days of the completion of the MRO's evaluation. 
     
  2. The MRO must report to the appropriate institution the following:
    1. That the controlled substances test being reported was in accordance with 49 CFR Part 40.
    2. The name of the individual for whom the test results are being reported.
    3. The type of test indicated on the custody and control Form (random, pre-employment, etc.).
    4. The date and location of the test collection.
    5. The identification of the persons or entities performing the collection and analysis of the specimens, and serving as the MRO for the specific test.
    6. The verified results of the controlled substances test (positive or negative) and, if positive, the identity of the controlled substance(s) for which the test was verified positive.
    7. That the MRO has made every reasonable attempt to contact the driver.
  1. Driver Notification
  1. Prior to verifying a "positive" result, the MRO shall make every reasonable effort to contact the driver (confidentially), and afford him or her the opportunity to discuss the test result. If after making all reasonable efforts and documenting them, the MRO is unable to reach the driver directly, the MRO shall contact a designated management official, who shall direct the driver to contact the MRO as soon as possible (within 24 hours).
     
  2. Under split-sample collection procedures, the driver has 72 hours following notification of a positive result to request the secondary sample be analyzed. In the event a split-sample was not taken, or was of inadequate quantity, the original test would be voided, and the driver would not be subject to a retest.
     
  3. While the primary sample is tested at specific thresholds for each controlled substance, the secondary (split) sample is analyzed only for the presence of controlled substances. If a negative result is reached on the secondary test, the original test results are disregarded.
  1. Record Retention
    1. The MRO shall maintain all dated records and notifications for verified positive controlled substances test results, identified by individual, for a period of five years.
       
    2. The MRO shall maintain all dated records and notifications for negative and canceled controlled substances test results, identified by individual, for a period of one year.
  2. The MRO shall not release the individual controlled substances test results of any driver to any person without a specific, written authorization from the tested driver. However, this shall not prohibit the MRO from releasing results to the appropriate State agency or Federal, State or local officials with regulatory authority over the controlled substances testing program.

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XV.     RELEASE OF ALCOHOL AND CONTROLLED SUBSTANCES TEST INFORMATION BY PREVIOUS EMPLOYERS

  1. An institution may obtain from any previous employer of a driver, provided the driver has given his or her written consent, any information concerning the driver's participation in a controlled substances and alcohol testing program.
     
  2. An institution must obtain and review the information listed below from any employer for which the driver performed safety-sensitive functions during the previous two years. The information must be obtained and reviewed no later than 14 days after the first time a driver performs safety-sensitive functions. The information obtained must include:
  1. Information on the driver's alcohol test in which a breath alcohol concentration of 0.04 or greater was indicated.
     
  2. Information on the driver's controlled substances test in which a positive result was indicated.
     
  3. Any refusal to submit to a required alcohol or controlled substance test.
  1. If the driver stops performing safety-sensitive functions for the institution before expiration of the 14-day period or before the institution has obtained the information listed above, the institution must still obtain the information For example, if a driver quits after one week of employment and the information has not been obtained, the institution must still obtain the information.
     
  2. The prospective employer institution must provide to each of the driver's previous employers of the past two years a written authorization from the driver for release of the required information. The release of this information may take the form of personal interviews, telephone interviews, letters, or any other method that ensures confidentiality.

Each institution must maintain a written, confidential record with respect to each past employer contacted.

  1. The institution may not use a driver to perform safety-sensitive functions if the institution obtains information indicating the driver has tested positive for controlled substances, tested at or above 0.04 breath alcohol concentration, or refused to test unless the institution has evidence the driver has been evaluated by a substance abuse professional, completed any required counseling, passed a return-to-duty test, and been subject to follow-up testing.

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XVI.     ANNUAL CALENDAR YEAR SUMMARY

  1. The institution shall prepare and maintain an annual calendar year summary of the results of its alcohol and controlled substances testing programs. All institutions shall complete the annual summary by March 15 each year, covering the previous calendar year.
  1. Management Information System
     
    1. Each year in January, the FHWA will notify a select number of employers to submit their calendar year summary of alcohol and controlled substances test results. Upon notification, the employer shall submit the required summary to the FHWA by March 15 of that year, to the location specified. Unless otherwise specified, State government constitutes one employer. The report shall be accurate and in the form and manner prescribed by the FHWA. When the report is submitted by mail or electronic transmission, the information requested shall be typed, except for the signature of the certifying official.
       
    2. The report shall contain all the information outlined in 49 CFR Part 382.403. Sample forms detailing the required information shall be made available upon request. This information is only required to be submitted when requested by the FHWA. If not requested, the annual calendar year summary shall be maintained by the employer for a period of five years, and presented for review, upon request from an agent of the U.S. Department of Transportation. If the report is submitted to the FHWA when not requested, it will be discarded.

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XVII.  PROPER APPLICATION OF THE POLICY

The Tennessee Board of Regents is dedicated to assuring fair and equitable application of this substance abuse and testing policy. Therefore, supervisors and managers are required to use and apply all aspects of this policy in an unbiased and impartial manner. Any supervisor or manager who knowingly disregards the requirements of this policy, or who is found to deliberately misuse the policy in regard to subordinates or students, shall be subject to disciplinary action, up to and including termination.

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XVIII. NOTICE OF POLICY EDUCATION MATERIALS & CERTIFICATE OF RECEIPT
 

  1. Each institution shall notify its CDL drivers of this policy, and that the alcohol and controlled substances testing specified herein is required by Federal law. CDL drivers shall also be provided with a copy of this policy and educational materials that explain the policy requirements and procedures with respect to meeting these requirements. 
     
  2. Institutions shall ensure that a copy of these materials is distributed to each CDL driver prior to the start of alcohol and controlled substances testing under this policy, and to each CDL driver subsequently hired or transferred to a position requiring a CDL.
     
  3. Each institution shall ensure that each CDL driver is required to sign a statement certifying that he or she has received a copy of the educational materials required in this policy. Each institution shall maintain the original of the signed certificate, and may provide a copy of the certificate to the CDL driver.

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Source:  Tennessee Board of Regents memorandum from the Vice Chancellor for Administration and Facilities Development, dated December 21, 1995.
 


TENNESSEE BOARD OF REGENTS

COMMERCIAL DRIVERS LICENSE (CDL) DRIVERS DRUG AND ALCOHOL TESTING POLICY CONTACT

Any person with questions regarding the Tennessee Board of Regents CDL Drivers Drug and Alcohol Testing Policy or any other aspect of the drug and alcohol testing program should contact the following Department representatives:

Title: Assistant Vice Chancellor for Human Resources
Address: 1415 Murfreesboro Rd., Suite 350, Nashville, TN 37217
Telephone Number: (615) 366-4417

Title: Assistant General Counsel
Address: 1415 Murfreesboro Rd., Suite 350, Nashville, TN 37217
Telephone Number: (615) 366-4437

Title: Director, Tennessee Technology Center at Crump
Address: Highway 64 West, Crump, TN 38327
Telephone Number: (901) 632-3393
 

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Verification of Receipt

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Attachment A


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Attachment B


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