[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR219.11]

[Page 215-217]
 
                        TITLE 49--TRANSPORTATION
 
       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 
                             TRANSPORTATION
 
PART 219_CONTROL OF ALCOHOL AND DRUG USE--Table of Contents
 
                            Subpart A_General
 
Sec. 219.11  General conditions for chemical tests.

    (a) Any employee who performs covered service for a railroad is 
deemed to have consented to testing as required in subparts B, C, D, and 
G of this part; and consent is implied by performance of such service.

[[Page 216]]

    (b)(1) Each such employee must participate in such testing, as 
required under the conditions set forth in this part by a representative 
of the railroad.
    (2) In any case where an employee has sustained a personal injury 
and is subject to alcohol or drug testing under this part, necessary 
medical treatment must be accorded priority over provision of the breath 
or body fluid specimen(s).
    (3) Failure to remain available following an accident or casualty as 
required by company rules (i.e., being absent without leave) is 
considered a refusal to participate in testing, without regard to any 
subsequent provision of specimens.
    (c) A covered employee who is required to be tested under subpart C 
or D of this part and who is taken to a medical facility for observation 
or treatment after an accident or incident is deemed to have consented 
to the release to FRA of the following:
    (1) The remaining portion of any body fluid specimen taken by the 
treating facility within 12 hours of the accident or incident that is 
not required for medical purposes, together with any normal medical 
facility record(s) pertaining to the taking of such specimen;
    (2) The results of any laboratory tests for alcohol or any drug 
conducted by or for the treating facility on such specimen;
    (3) The identity, dosage, and time of administration of any drugs 
administered by the treating facility prior to the time specimens were 
taken by the treating facility or prior to the time specimens were taken 
in compliance with this part; and
    (4) The results of any breath tests for alcohol conducted by or for 
the treating facility.
    (d) An employee required to participate in body fluid testing under 
subpart C of this part (post-accident toxicological testing) or testing 
subject to subpart H of this part shall, if requested by the 
representative of the railroad or the medical facility (including, under 
subpart H of this part, a non-medical contract collector), evidence 
consent to taking of specimens, their release for toxicological analysis 
under pertinent provisions of this part, and release of the test results 
to the railroad's Medical Review Officer by promptly executing a consent 
form, if required by the medical facility. The employee is not required 
to execute any document or clause waiving rights that the employee would 
otherwise have against the employer, and any such waiver is void. The 
employee may not be required to waive liability with respect to 
negligence on the part of any person participating in the collection, 
handling or analysis of the specimen or to indemnify any person for the 
negligence of others. Any consent provided consistent with this section 
may be construed to extend only to those actions specified in this 
section.
    (e) Nothing in this part may be construed to authorize the use of 
physical coercion or any other deprivation of liberty in order to compel 
breath or body fluid testing.
    (f) Any railroad employee who performs service for a railroad is 
deemed to have consented to removal of body fluid and/or tissue 
specimens necessary for toxicological analysis from the remains of such 
employee, if such employee dies within 12 hours of an accident or 
incident described in subpart C of this part as a result of such event. 
This consent is specifically required of employees not in covered 
service, as well as employees in covered service.
    (g) Each supervisor responsible for covered employees (except a 
working supervisor within the definition of co-worker under this part) 
must be trained in the signs and symptoms of alcohol and drug influence, 
intoxication and misuse consistent with a program of instruction to be 
made available for inspection upon demand by FRA. Such a program shall, 
at a minimum, provide information concerning the acute behavioral and 
apparent physiological effects of alcohol and the major drug groups on 
the controlled substances list. The program must also provide training 
on the qualifying criteria for post-accident testing contained in 
subpart C of this part, and the role of the supervisor in post-accident 
collections described in subpart C and Appendix C of this part. The 
duration of such training may not be less than 3 hours.

[[Page 217]]

    (h) Nothing in this subpart restricts any discretion available to 
the railroad to request or require that an employee cooperate in 
additional body fluid testing. However, no such testing may be performed 
on urine or blood specimens provided under this part. For purposes of 
this paragraph (h), all urine from a void constitutes a single specimen.
    (i) A railroad required or authorized to conduct testing under this 
part may conduct all such testing in the United States. A foreign 
railroad required to conduct testing under this part may conduct such 
tests in its home country, provided that it otherwise complies with the 
requirements of this part.

[66 FR 41973, Aug. 9, 2001, as amended at 69 FR 19288, Apr. 12, 2004]