(A)   Alcohol testing procedures. The instrument that will be used to determine the presence of alcohol is the evidential breath testing device (EBT). Only qualified breath alcohol technicians shall be used to conduct breath alcohol testing according to 49 C.F.R. part 40. If test results are negative, the breath alcohol technician will inform the employer and the employee and no further action is needed. If the result of the screening test is an alcohol concentration of 0.02% or greater, a confirmation test is needed. If the result of the confirmation test is 0.02% or greater, but less than 0.04%, the driver will be immediately removed from safety sensitive function and placed on unpaid leave for at least 24 hours or the next working day, whichever comes first. The driver will also be required to take required breath alcohol test prior to performing any safety sensitive function. If the result of the confirmation test is 0.04% or greater, the employee will be subject to the same consequences as testing positive for a controlled substance.
   (B)   Controlled substance procedures. The employer is required to use the “split sample” method of collection when conducting the test for controlled substances. The collection of samples for controlled substances testing shall be conducted by a qualified collection technicians following the guidelines as published in 49 C.F.R. part 40. The employee will be required to show the collection technician the contents of his or her pockets. If the employee possesses a substance that is obviously intended to adulterate or substitute a specimen, a direct observation shall be immediately conducted in accordance with federal protocols. If, at any time, the employee refuses to submit to an observed collection when it is required under any of the circumstances outlined in 49 C.F.R. part 40, it will be deemed a refusal to submit. The urine sample will be placed into two separate specimen bottles for shipment to a Department of Health and Human Services (DHHS) certified laboratory. If the screening test indicates a negative result, the employer will inform the employee and no further action is needed. If the test result of the primary specimen is positive for drugs, adulterated or substituted the MRO shall notify the employee of the verified test result. The employee will be offered the opportunity to request that the MRO direct the split specimen be tested in a different DHHS-certified laboratory to re-confirm the presence of the drug(s), adulterant or substitution for which a non-negative result was obtained. The MRO shall honor this request if it is made within 72 hours of the employee having been notified of a verified non-negative test result. The result on the split specimen will be transmitted back to the MRO. While waiting for the test result to be completed on the split specimen, the employee shall not be permitted to perform safety-sensitive functions and shall be placed on unpaid leave. If the test results of the split specimen fail to reconfirm the non-negative result of the primary specimen, the MRO will cancel the test and report the reasons as required by 49 C.F.R. part 382. A canceled test is considered neither positive nor negative. If a split sample test fails to reconfirm the non-negative test result, the employee will be paid for the time that he or she normally would have worked during the waiting process. In the certain cases of a canceled pre-employment, post-accident, return to duty or follow-up test a recollection may be necessary. If a test is canceled due to the split sample not being available for testing, the employer is required to have an immediate direct observation sample conducted. The MRO may also require a direct observation collection on canceled tests in which the employee has not provided an adequate explanation for an invalid test result. Employees who request a split sample to be tested at a second DHHS laboratory shall bear all costs associated with the split testing unless the test fails to confirm the non-negative test result.
   (C)   Shy bladder or shy breath syndrome. If an employee has a medical condition that prevents an acceptable sample from being collected in accordance with C.F.R. part 40, the employee will be required to have a medical examination conducted by a physician acceptable to the employee and the MRO. The employee will have five business days to obtain a physicians statement verifying that a qualifying medical condition exists that would have prevented the employee from providing an acceptable sample. If the employee has failed to keep the appointment with the physician, the employee may be disciplined up to and including termination, If the employee is unable to get an appointment with a physician in the five-day period, the employee is required to notify the employer immediately of the situation. The employer will then assist the employee to find a qualified physician to conduct the examination. If, after the examination is completed and the physician has determined that the employee does not have a qualified medical condition that would prevent an acceptable urine/breath sample from being obtained, the test result will be reported as a refusal to submit.
   (D)   Requirement to submit to observed or monitored urine specimen collection.
      (1)   Under certain circumstances, a covered employee may be required to submit to an observed specimen collection. Some situations that will require the specimen collector to conduct an immediate direct observation collection are:
         (a)   Providing a sample that is not within the acceptable temperature range;
         (b)   Providing an obviously adulterated specimen; and
         (c)   Conduct that clearly indicates an attempt to adulterate or substitute a specimen.
      (2)   In other cases, the employer has the right to request an observed collection for follow-up or return-to-duty testing. The medical review officer has the right to require a direct observation in other circumstances such as an invalid or canceled test result.
      (3)   The covered employee is required to submit to the observed specimen collection, when requested. Failure to permit an observed or monitored collection when requested will be deemed a refusal to submit.
(Res. 2003-01, passed 1-7-2003)