[Code of Federal Regulations]

[Title 49, Volume 4]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR219.104]



[Page 219-220]

 

                        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



[[Page 220]]



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 make 

separate findings as to compliance with Sec. Sec. 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 Sec. Sec. 40.305, 40.307, and 

40.299 of this title, respectively.