16 Tex. Admin. Code § 86.710 - Responsibilities of Towing Company - Drug and Alcohol Testing Policy
(a) A towing company adopting paragraphs (1)
- (12) of this subsection will comply with Texas Occupations Code, §
2308.158.
(1) Purpose and Scope. This drug and alcohol
testing policy provides guidance to supervisors and towing operators about
their responsibilities under this policy. Except as stated in paragraph (12),
this policy applies to all towing operators and all towing operator 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 2308 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 or alcohol test is
administered, towing operators 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 and alcohol 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 or alcohol 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 or applicant's system.
(4) Compliance with Drug and Alcohol Testing
Policy. The failure or refusal by a towing operator 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 and alcohol testing policy is governed by these general rules:
(A) towing operators shall not take or be
under the influence of any drugs unless prescribed by the employee's licensed
physician.
(B) towing operators are
prohibited from engaging in the manufacture, sale, distribution, use, or
unauthorized possession of illegal drugs at any time.
(C) all towing company property is subject to
inspection at any time without notice. There should be no expectation of
privacy in or on such property. Towing company property includes, but is not
limited to, vehicles, desks, containers, files, and lockers.
(D) any towing operator convicted of
violating a criminal drug or alcohol 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 towing company 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 towing operator's license, who have received a
conditional offer of employment, must take a drug test before receiving a final
offer of employment.
(B) Annual.
All towing operators employed by a towing company 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, towing operators are subject to random urine drug
and alcohol testing. Under this policy, annual random test for drugs and
alcohol of at least 25 percent of the total number of towing operators is
required.
(i) A minimum of 15 minutes and a
maximum of two hours will be allowed between notification of a towing operator
for random urine drug and alcohol testing and the actual presentation for
specimen collection.
(ii) Random
donor selection dates will be unannounced with unpredictable
frequency.
(iii) Each licensed
towing company participating in a consortium must ensure that the consortium
performs random drug testing on at least 25% of the total number of the
licensed towing operators participating in and tested by the
consortium.
(D)
Return-to-Duty and Follow-Up.
(i) Any towing
operator who has violated this drug and alcohol 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 towing operator 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 towing operator 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.
(B) Drug
and alcohol 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 or alcohol, the towing operator has 72 hours to
request sending the split specimen to another Federal Department of Health and
Human Services (DHHS) certified laboratory for analysis. The towing operator
will be required to pay for his or her split specimen test(s).
(D) For the towing operator'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 towing operator will be
notified, and the MRO will notify the company.
(E) The towing company 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) towing
operator's name;
(ii) towing
operator's license number;
(iii)
date of the positive test;
(iv)
substance detected by the drug and alcohol test; and
(v) disciplinary action imposed violation of
the drug testing policy.
(9) Reporting and Reviewing of Drug and
Alcohol 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 towing operator by telephone upon exchange of acceptable
identification.
(D) Neither the
company, the laboratory, nor the MRO shall disclose any drug or alcohol test
results to any other person except under written authorization from the towing
operator, 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 Towing Operators. The minimal distribution of
information for all towing operators will include the display and distribution
of:
(A) informational material on the
physical and mental effects of drugs and alcohol;
(B) an existing community services hotline
number, available drug and alcohol 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 and alcohol
policy.
(11)
Consequences of a Confirmed Positive Drug and Alcohol Test.
(A) Job applicants will be denied employment
if their initial positive pre-employment drug test results have been
confirmed.
(B) If a towing
operator's positive drug and alcohol test result has been confirmed, the towing
operator will stand down from towing operation 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 action: the towing
operator'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 and alcohol policy against towing operators who
voluntarily identify themselves as drug or alcohol users, obtain counseling,
rehabilitation and comply with return to duty and follow-up drug and alcohol
testing.
(12)
Exceptions.
(A) Towing operators subject to
random drug and alcohol 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 towing operator's
tested negative and the negative test results are submitted to and verified by
the MRO.
(B) Towing operators
holding a valid Towing Operator License issued by the department who are tested
for drugs and alcohol in accordance with 16 Texas Administrative Code Chapter
85 are exempt from this section.
(b) Independent drug and alcohol testing
policy.
(1) A towing company may file an
independent drug and alcohol testing policy.
(2) The filing must describe how the
independent drug and alcohol testing policy is as stringent as each provision
of the model policy set forth in subsection (a).
(c) Compliance. A towing company is required
to adopt and implement an alcohol and drug testing policy that complies with
subsection (a) or (b).
Notes
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