[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: 49CFR219.11]



[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



[[Page 216]]



in subparts B, C, D, and G of this part; and consent is implied by 

performance of such service.

    (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



[[Page 217]]



and Appendix C of this part. The duration of such training may not be 

less than 3 hours.

    (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]