16 Tex. Admin. Code § 85.725 - Responsibilities of Licensee - Drug Testing Policy
(a) A VSF adopting paragraphs (1) - (12) will
comply with Texas Occupations Code, §
RSA
2303.160.
(1) Purpose and Scope. This drug testing
policy provides guidance to supervisors and VSF employees about their
responsibilities under this policy. Except as stated in paragraph (12), this
policy applies to all VSF employees and all VSF job applicants.
(2) Definitions. The words and terms used in
this policy shall have their ordinary meaning unless the words or terms are
used in Texas Occupations Code, Chapter 2303 or Title 49 Code of Federal
Regulation Part 40, in which event the words or terms shall have the meaning
designated in those regulations.
(3) Consent Form.
(A) Before a drug test is administered, VSF
employees and applicants are required to sign a consent form authorizing the
test and permitting release of test results to the medical review officer
(MRO), the company, and the department. The consent form shall provide space
for employees and applicants to acknowledge that they have been notified of the
drug testing policy.
(B) The
consent form shall set forth the following information:
(i) the procedure for confirming and
verifying an initial positive test result;
(ii) the consequences of a verified positive
test result; and
(iii) the
consequences of refusing to undergo a drug test.
(C) The consent form also provides
authorization for certified or licensed attending medical personnel to take and
have analyzed appropriate specimens to determine if the tested drugs were
present in the towing operator's and applicant's system.
(4) Compliance with Drug Testing Policy. The
failure or refusal by a VSF employee or applicant to cooperate fully by signing
necessary consent forms or other required documents or the failure or refusal
to submit to any test or any procedure under this policy in a timely manner
will be grounds for refusal to hire or for termination. The submission by an
applicant or employee of a urine sample that is not his/her own or is a diluted
specimen shall be grounds for refusal to hire or for termination.
(5) General Rules. This drug testing policy
is governed by these general rules:
(A) VSF
employees shall not take or be under the influence of any drugs unless
prescribed by the employee's licensed physician.
(B) VSF employees are prohibited from
engaging in the manufacture, sale, distribution, use, or unauthorized
possession of illegal drugs at any time.
(C) All VSF property is subject to inspection
at any time without notice. There should be no expectation of privacy in or on
such property. VSF property includes, but is not limited to, vehicles, desks,
containers, files, and lockers.
(D)
Any VSF employee convicted of violating a criminal drug statute shall inform
his/her supervisor of such conviction (including pleas of guilty and
nolo contendere) within five days of the conviction occurring.
Failure to inform the supervisor subjects the employee to disciplinary action
up to and including termination for the first offense. The VSF will notify the
Texas Department of Licensing and Regulation of the conviction (including pleas
of guilty and nolo contendere).
(6) Types of Tests.
(A) Pre-employment. All applicants for
positions requiring a VSF employee license, who have received a conditional
offer of employment, must take a drug test before receiving a final offer of
employment.
(B) Annual. All VSF
employees employed by a VSF must complete at least one scheduled drug test each
12-month period from the date of the initial license or renewal.
(C) Random Testing. In addition to annual
testing, VSF employees are subject to random urine drug testing. Under this
policy, annual random test for drugs of at least 25 percent of the total number
of VSF employees is required.
(i) A minimum
of 15 minutes and a maximum of two hours will be allowed between notification
of a VSF employee for random urine drug testing and the actual presentation for
specimen collection.
(ii) Random
donor selection dates will be unannounced with unpredictable
frequency.
(iii) Each licensed VSF
participating in a consortium must ensure that the consortium performs random
drug testing on at least 25% of the total number of the licensed VSF employees
participating in and tested by the consortium.
(D) Return-to-Duty and Follow-Up.
(i) Any VSF employee who has violated this
drug testing policy and is allowed to return to work must submit to a
return-to-duty test. Follow-up tests will be unannounced, and at least six
tests will be conducted in the first 12 months after a VSF employee returns to
duty. Follow-up testing may be extended for up to 60 months following return to
duty. The test results of all return to duty and follow-up must be
negative.
(ii) The VSF employee
will be required to pay for his or her return-to-duty and follow-up tests
accordingly.
(7) Drug Testing. The drugs for which tests
are required under this policy are marijuana, cocaine, amphetamines,
phencyclidine (PCP), and opiates.
(8) Specimen Collection Procedures.
(A) All urine specimens will be collected by
a laboratory that is certified and monitored by the federal Department of
Health and Human Services (DHHS).
(B) Drug testing procedures include split
specimen procedures. Each urine specimen is subdivided into two bottles labeled
as a "primary" and a "split" specimen. Only the primary specimen is opened and
used for the urinalysis. The split specimen bottle remains sealed and is stored
at the laboratory.
(C) If the
analysis of the primary specimen confirms the presence of drugs, the VSF
employee has 72 hours to request sending the split specimen to another federal
DHHS certified laboratory for analysis. The VSF employee will be required to
pay for his or her split specimen test(s).
(D) For the VSF employee's protection, the
results of the analysis will be confidential except for the testing laboratory.
After the MRO has evaluated a positive test result, the VSF employee will be
notified, and the MRO will notify the company.
(E) The VSF will notify the department of the
positive test result. Notification to the department must occur within 3 days
of receipt of the confirmed test results from the MRO. The notification must
include the:
(i) VSF employee's
name;
(ii) VSF employee license
number;
(iii) date of the positive
test;
(iv) substance detected by
the drug test; and
(v) disciplinary
action imposed for violation of the drug testing policy.
(9) Reporting and Reviewing of
Drug Testing Results.
(A) The company shall
designate a medical review officer (MRO) to receive, report, and store testing
information transmitted by the laboratory. This person shall be a licensed
physician with knowledge of substance abuse disorders.
(B) The laboratory shall report test results
only to the designated MRO, who will review them in accordance with accepted
guidelines and the procedures adopted by the federal Department of
Transportation.
(C) Reports from
the laboratory to the MRO shall be in writing or by fax. The MRO may talk with
the VSF employee by telephone upon exchange of acceptable
identification.
(D) Neither the
company, the laboratory, nor the MRO shall disclose any drug test results to
any other person except under written authorization from the VSF employee,
unless such results are necessary in the process of resolution of accident
(incident) investigations, requested by court order, or required to be released
to parties having a legal right-to-know as determined by state and federal
law.
(10) Distribution
of Information to VSF Employee. The minimal distribution of information for all
VSF employees will include the display and distribution of:
(A) informational material on the physical
and mental effects of drugs;
(B) an
existing community services hotline number, available drug counseling,
rehabilitation, and assistance program;
(C) the company's policy regarding the use of
prohibited drugs and/or alcohol; and
(D) the consequences or disciplinary action
that may be imposed upon VSF employees for violating the drug policy.
(11) Consequences of a Confirmed
Positive Drug Test.
(A) Job applicants will
be denied employment if their initial positive pre-employment drug test results
have been confirmed.
(B) If a VSF
employee's positive drug test result has been confirmed, the VSF employee will
stand down from VSF duties and may be subject to disciplinary action up to and
including termination.
(C) The
company may consider the following factors in determining the appropriate
disciplinary response: the VSF employee's work history, length of employment,
current work assignment, current job performance, and existence of past
disciplinary actions.
(D) No
disciplinary action may be taken pursuant to this drug policy against VSF
employees who voluntarily identify themselves as drug users, obtain counseling,
rehabilitation and comply with return to duty and follow-up drug
testing.
(12)
Exceptions.
(A) VSF employees subject to
random drug testing under Title 49 Code of Federal Regulation, Part 40 who have
been randomly tested in the 12-month reporting period are exempt from the
annual test requirement, provided that the VSF employee tested negative and the
negative test results are submitted to and verified by the MRO.
(B) VSF employees holding a valid towing
operator license issued by the department who are tested for drugs in
accordance with 16 Texas Administrative Code Chapter 86 are exempt from this
section.
(b)
Independent drug testing policy.
(1) A VSF
may file an independent drug testing policy.
(2) The filing must describe how the
independent drug testing policy is as stringent as each provision of the model
policy set forth in subsection (a).
(c) Compliance. A VSF must adopt and
implement a drug testing policy compliant with subsection (a) or (b).
Notes
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