On February 15, 1994, the U.S. Department of Transportation adopted rules implementing the Omnibus Transportation Employee Testing Act of 1991. These rules require municipalities and other local governments to conduct employee controlled substance and alcohol use testing for those employees that perfom "safety sensitive" functions in the transportation area.

Municipal employees who are required to be tested are those who operate a commercial motor vehicle with a gross weight of 26,001 pounds or more and are required to have a Commercial Drivers License (CDL); vehicles towing a trailer with a weight of 10,000 pounds or more; vehicles designed to carry 16 or more passengers; or any vehicle used to carry hazardous materials covered under the Hazardous Materials Transportation Act.

Employees in a mass transit setting are also required to be tested including the driver of the vehicle; the supervisor over the operation, maintenance, or controlling the movement of the vehicle; security who carry firearms and drivers of service vehicles. Federal rules require that they be tested while performing safety sensitive functions. Safety sensitive functions include all duties of an employee while operating, loading, unloading, maintaining, or repairing the vehicle.

The federal rules require municipalities with employees that perform safety sensitive functions to: adopt a controlled substance/alcohol use ordinance, keep extensive records and reporting information, create federally required employee misuse programs, establish educational programs for employees and supervisors and create an employee referral program for employees who violate the federal rules.

These rules take effect in a two-tier manner. Municipalities that have less than 50 employees performing safety sensitive functions are required to have established an operational program by January 1,1996. Municipalities with 50 or more employees performing safety sensitive functions were required to have a program established and operational by January 1, 1995.

There are five situations in which controlled substance and alcohol use testing must be conducted. These testing situations are conducted for pre-employment, annual random testing, after an accident, if there is reasonable-suspicion of controlled substance or alcohol use, prior to returning an employee to duty after a positive test, and follow-up testing after an employee returns to duty after a positive test result.

Federal rules prohibit a safety sensitive employee from performing their duties with a blood alcohol concentration of 0.02 or greater or when using any controlled substance. Also prohibited are the possession of alcohol or controlled substances in the work site and using alcohol or a controlled substance while performing the safety sensitive functions.

Specifically, an employee is prohibited from performing a safety sensitive function while having a breath alcohol concentration of 0.02 percent or greater as measured by a federally approved Evidential Breath Testing (EBT) device. The EBT can only be operated by an individual trained and certified as a Breath Alcohol Technician (BAT) in compliance with the federal rules.

If an employee is tested for alcohol use and is found to have breath alcohol level of 0.04 or greater, the municipality may not return the employee to a safety sensitive function until the employee; 1) undergoes evaluation and treatment if necessary, 2) a substance abuse professional determines that the employee has successfully complied with any recommended treatment, and 3) the employee's breath alcohol level is less than 0.02 on a return to duty test. When an employee's breath alcohol test shows an alcohol level of 0.02 or greater, but less than 0.04, the employee is not permitted to perform the safety sensitive function for a minimum of 24 hours or until a retest is conducted and shows that the employee's alcohol concentration is less than 0.02. Employees also can not perform their duties while using alcohol or within four hours of consuming alcohol. Alcohol testing can only be conducted immediately before, during the performance, or immediately after a safety sensitive function is conducted.

Employees will be tested for controlled substances following very detailed procedures. These procedures require testing for controlled substances by analyzing urine specimens of an employee. The urine samples shall be collected and tested following federally prescribed chain of custody forms and step by step handling procedures. The specimens shall be analyzed by a federally approved laboratory by using gas chromatography/mass spectrometry analysis. The controlled substances analysis will test urine samples for marijuana, cocaine, amphetamines, opiates (including heroin), and phencyclidine (PCP). All test results shall be reviewed and interpreted by a Medical Review Officer (MRO) before the results are reported to the municipality. Employees will be contacted by the MRO to see if the employee is using any prescribed drugs or for other medical reasons that might cause a positive test. An employee is given 72 hours to ask for a second opinion of a positive tested specimen.

Employees are explicitly prohibited from using controlled substances on or off duty. All employees who test positive for controlled substances must be removed from the safety sensitive function. An employee may only return to the safety sensitive function after he/she has been evaluated by a substance abuse professional or a MRO, the employee has completed any recommended rehabilitation, and a negative test result on a return-to-duty substance abuse test is obtained.

The federal rules are specific in the five situations in

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which controlled substance and alcohol use testing must be conducted. In the case of preemployment testing, before any individual may be hired to perform safety sensitive functions that person must be tested for the use of controlled substance or alcohol use. Employers are also required to obtain from a previous employer the controlled substance/alcohol testing history of an employee. It mandates that all previous employers keep former employee records for a period of 1 to 5 years, depending on the type of information, and release those records when requested by another employer.

The rules further require that after an accident involving an employee driving a commercial motor vehicle, the employee must be tested. A controlled substance test must be conducted within 32 hours of the accident and an alcohol test should be conducted within two hours of the accident but no less than eight hours after the accident.

An employer must test an employee when there is reasonable suspicion that the employee is under the influence of a controlled substance or alcohol. The employer must base suspicion on specific observations concerning the appearance, behavior, speech or body odors of the employee.

After an employee tests positive for the use of controlled substances or alcohol, that employee must be given a return-to-duty and follow-up substance abuse and alcohol use test before being returned to a safety sensitive function. If an employee tests negative on a return-to-duty test and is returned to perform safety sensitive functions, the employee must be given at least 6 substance abuse or alcohol tests (depending on the type of use) within the first 12 months after returning to duty.

The final type of test the federal rules require is random testing. All employees who perform safety sensitive functions must be a part of a random selection pool for controlled substance and alcohol use testing. At least 25% of an employer's safety sensitive employees must be randomly selected and tested for alcohol use. 50% of the safety sensitive employees are required to be selected and tested for controlled substances annually.

Employees who test positive for controlled substances or alcohol use are to be removed from duty immediately. If an employee refuses to take a test or does not provide a sufficient sample amount for a controlled substance test, the test is considered a positive test.

Municipalities have the ability to discipline or terminate the employee for a positive test in a manner consistent with any labor-management agreement or ordinance in existence.

Federal rules mandate that municipalities must provide one hour of controlled substance and alcohol misuse training to employees conducting safety sensitive functions. They further require that all supervisors of safety sensitive employees must attend one hour of training each for controlled substance and alcohol use symptoms and indicators used in determining reasonable suspicion.

The federal law and rules clearly make the municipality responsible for complying with all controlled substance/alcohol testing standards and procedures. Municipalities are to keep detailed records of all employees, test results, and necessary chain of custody and other required records. Municipalities are required to annually report specific information regarding the municipality's testing program. These reports are very detailed and specific as to how and what type of information is to be provided.

The federal rules also authorize the U.S. Department of Transportation and Federal Highway Administration to conduct random unannounced audits of municipalities and their controlled substance and alcohol testing procedure records. The U.S. DOT and FHWA are authorized to issue fines and penalties for each violation.

The Illinois Municipal League has established a program to provide the required controlled substance and alcohol testing services to meet the federal requirements. To receive an informational packet on the IML Drug and Alcohol Compliance Testing Program—contact:

Illinois Municipal League
Attn: Drug & Alcohol Compliance Testing Program
500 E. Capitol, P.O. Box 3387
Springfield, IL 62708-3387
Phone: (217) 525-1220

If you have any questions regarding the federal rules or other related issues, please contact the League. •

1. 49 CFR Part 40 and 382.

2. Drug and Alcohol Testing for Local Government Transportation Employees, The Public Employer's Guide: Katherine H. Gustafson; International City-County -Management Association; 1994.

Page 10 / Illinois Municipal Review / June 1995