[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR219.104]

[Page 207-208]
 
                        TITLE 49--TRANSPORTATION
 
       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 
                             TRANSPORTATION
 
PART 219--CONTROL OF ALCOHOL AND DRUG USE--Table of Contents
 
                         Subpart B--Prohibitions
 
Sec. 219.104  Responsive action.

    (a) Removal from covered service. (1) If the railroad determines 
that an employee has violated Sec. 219.101 or Sec. 219.102, or the 
alcohol or controlled substances misuse rule of another DOT agency, the 
railroad must immediately remove the employee from covered service and 
the procedures described in paragraphs (b) through (e) of this section 
apply.
    (2) If an employee refuses to provide breath or a body fluid 
specimen or specimens when required to by the railroad under a mandatory 
provision of this part, the railroad must immediately remove the 
employee from covered service, and the procedures described in 
paragraphs (b) through (e) of this section apply.
    (3)(i) This section does not apply to actions based on breath or 
body fluid tests for alcohol or drugs that are conducted exclusively 
under authority other than that provided in this part (e.g., testing 
under a company medical policy, for-cause testing policy wholly 
independent of subpart D of this part, or testing under a labor 
agreement).
    (ii) This section and the information requirements listed in 
Sec. 219.23 do not apply to applicants who refuse to submit to a pre-
employment test or who have a pre-employment test with a result 
indicating the misuse of alcohol or controlled substances.
    (b) Notice. Prior to or upon withdrawing the employee from covered 
service under this section, the railroad must provide notice to the 
employee of the reason for this action.
    (c) Hearing procedures. (1) If the employee denies that the test 
result is valid evidence of alcohol or drug use prohibited by this 
subpart, the employee may demand and must be provided an opportunity for 
a prompt post-suspension hearing before a presiding officer other than 
the charging official. This hearing may be consolidated with any 
disciplinary hearing arising from the same accident or incident (or 
conduct directly related thereto), but the presiding officer must

[[Page 208]]

make separate findings as to compliance with Secs. 219.101 and 219.102.
    (2) The hearing must be convened within the period specified in the 
applicable collective bargaining agreement. In the absence of an 
agreement provision, the employee may demand that the hearing be 
convened within 10 calendar days of the suspension or, in the case of an 
employee who is unavailable due to injury, illness, or other sufficient 
cause, within 10 days of the date the employee becomes available for 
hearing.
    (3) A post-suspension proceeding conforming to the requirements of 
an applicable collective bargaining agreement, together with the 
provisions for adjustment of disputes under sec. 3 of the Railway Labor 
Act (49 U.S.C. 153), satisfies the procedural requirements of this 
paragraph (c).
    (4) Nothing in this part may be deemed to abridge any additional 
procedural rights or remedies not inconsistent with this part that are 
available to the employee under a collective bargaining agreement, the 
Railway Labor Act, or (with respect to employment at will) at common law 
with respect to the removal or other adverse action taken as a 
consequence of a positive test result in a test authorized or required 
by this part.
    (5) Nothing in this part restricts the discretion of the railroad to 
treat an employee's denial of prohibited alcohol or drug use as a waiver 
of any privilege the employee would otherwise enjoy to have such 
prohibited alcohol or drug use treated as a non-disciplinary matter or 
to have discipline held in abeyance.
    (d) The railroad must comply with the return-to-service and follow-
up testing requirements, and the Substance Abuse Professional conflict-
of-interest prohibitions, contained in Secs. 40.305, 40.307, and 40.299 
of this title, respectively.