Drug & Alcohol Testing: Some answers to those frequently asked questions about these new federal regulations
(from Maine Townsman, January 1996)
By Joseph I. Wathen

EDITOR'S NOTE: During the past few month, MMA Staff Attorney Joe Wathen has been involved in a number of workshops regarding the federal drug and alcohol regulations for employees who are required to have a commercial drivers license (CDL) that went into effect for all Maine communities on January 1, 1996. A number of questions that arose during the workshops are discussed in a Q & A format below.

Our town has no employees who drive big trucks. All of our road work (summer and winter) is contracted out. Are we required to have a drug and alcohol testing program ?

No. The contractors you hire are subject to the law but must make their own arrangements for a drug and alcohol program. You should make it a condition of your contract that the contractor show proof of compliance with the law, such as a letter from the contractor's testing facility or third party administrator.

Our town does not own any trucks or other equipment, but the elected road commissioner (who is also a contractor) has a commercial drivers license and uses his own trucks to put up sand and sand the roads. We hire another contractor to plow. The road commissioner is paid by the hour for the work he does. Do we need to adopt a drug and alcohol policy just to cover this road commissioner?

Yes. Since the road commissioner is paid by the hour and uses his truck as part of his official duties, he is considered your employee. Even if you have only one CDL employee, you must comply with the law. In some communities that have only one municipal CDL employee, that person is allowed by the school board or SAD directors to piggyback on the school's drug and alcohol program. This avoids the need for a separate policy and a separate program administrator for the municipal driver.

Is our driver required to be tested for any accident in which a person is treated away from the scene or in which a vehicle is towed from the scene?

No. Your driver must be tested if the accident resulted in a person being treated away from the scene and your driver was issued a citation for a "moving violation". Likewise, your driver must be tested if a vehicle was towed from the scene and your driver was issued a citation for a moving violation. Consider the following examples:

Motorist runs into your snowplow. Neither vehicle is damaged and no citation is issued to your driver, but motorist goes to the emergency room for a head injury. No test is reuired for your driver.

Snowplow strikes a parked car which was hidden by a snowdrift. No one is injured and no citation is issued, but the car must be towed from scene. No test is required for your driver.

In the case of a fatality, your driver must be tested even if no citations were issued.

NOTE: The preceding information was supplied by the Federal Highway Administration in Washington, D.C. That office has an electronic bulletin board (called FEBBS) which allows online access to drug and alcohol information (and all sorts of other information). FEBBS is a read-only facility. The phone number for FEBBS is (202) 366-3764 for users of 300, 1200, 2400, or 14,400 baud line speeds. Users of a 9600 baud line speed use (202) 366-3175. Each new user must register with FEBBS. You assign your own password and the password is case-sensitive (small and capital letters are not equivalent). All files are on ASCII format. There is no charge for FEBBS but users must pay their own telephone charges.

A test is required if a ticket (citation) is issued to our driver for a "moving violation" in connection with an accident. What is a moving violation?

This is determined by the traffic laws of each State. In Maine, a moving violation is defined in 29-A MRSA 101(44) as a violation for which points may be assessed in accordance with 29-A MRSA 2458(3). A moving violation does not include a violation of any law or ordinance regulating vehicle size, weight, equipment or parking. Moving violations are:

Driving wrong side Driving wrong way Exceeding posted speed limit Improper passing

Leaving scene of an accident Operating beyond restriction Operating with improper license

Operating without corrective lenses Operating left of curve Passing within 100 feet of an intersection

Passing on a curve or hill Passing on right Violation of Do Not Pass sign Violation of instruction permit

Operating motorcycle beyond restriction Excessive acceleration Failure to keep right

Failure to return to right Failure to yield to emergency vehicle Failure to yield to vehicle having right of way

Failure to yield to pedestrian Failure to obey Stop sign Failure to stop at red light Imprudent driving

Imprudent speed Operating motor vehicle with obstructed view Operating without a license

Red light violation Crossover violation Displaying blue light Displaying red light Excessive noise

Failure to dim headlights Failure to signal Failure to obey traffic island

Failure to reduce speed on grade or curve Following too close Illegal left or right turn Illegal U-turn

Impeding flow of traffic Obstructing flow of traffic Lane conviction Littering Operating without taillights

Operating without headlights Speed under posted minimum Squealing tires Trailer without lights

Trucks traveling less than 150 feet apart Transportation of liquor by a minor

We understand that if an employee fails a drug test (but does nothing else wrong) he is entitled to return to his job following the successful completion of a rehabilitation program which may take up to 6 months (26 MRSA 685). Does this same rule apply to job applicants, probationary employees and temporary employees?

No and yes. You have no duty to offer a job applicant the 6-months rehabilitation period, as he is not an employee. Instead, you should simply not hire the person. Likewise, another law (30-A MRSA 2701) allows the municipality to terminate a probationary employee without cause or hearing. Thus, if the municipality terminates a probationary employee before his probation is up, there is no need to offer him a period of drug re-habilitation since he will not be an employee even if he successfully com-pletes the program. Note that if your town does not impose probationary periods, then the person will be considered an employee and will be entitled to the rehabilitation period.

Temporary or on-call employees (for example, those you use only a few times a year) are considered employees so are entitled to the rehabilitation period.

Keep in mind that if an employee does something else wrong aside from failing a drug test, such as causing property damage or personal injury, you may discipline him accordingly.

I have a copy of the drug and alcohol policy put out by the MMA. Why does it distinguish between a breath test result of .04 and a result of .02?

This distinction is in federal regulations (see 49 CFR 382.505) so was carried over into MMA's policy. The distinction relates to the consequences of a test result for alcohol. If a driver's breath test result is .04 or greater, he must be removed from duty, referred to a substance abuse professional, is required to pass a return-to-duty test and may be required to take follow-up tests. If the driver's test result is .02 to .039 and he has not violated any other provision of the policy, then he must be removed from duty for at least 24 hours, but is not referred to a substance abuse professional or required to take a return-to-duty test or follow-up tests. This will occur only in limited situations. For example, assume your driver went out drinking last night but stopped drinking 5 hours before reporting to work (which is legal). When he reported for work, he still had a blood/alcohol level of .03. He cannot be allowed to drive for 24 hours, but he is not subject to the other consequences.

I understand that the law prohibits a driver from performing a safety-sensitive function if he is under the influence of drugs or alcohol. What exactly is a "safety-sensitive function"? For example, I sometimes assign a CDL driver to flag duty at a construction site; is flagging or traffic control considered a safety-sensitive function?

No. Although flagging and traffic control relate to public safety, those activities are not considered safety sensitive functions under federal regulations. 49 CFR Sec. 382.107 de-fines "safety-sensitive function" as "any of the on-duty functions set forth in 395.2 On-Duty Time, paragraphs (1) through (6) of this chapter." On-duty time is defined in 395.2 (a) as:

  1. All time from the time a driver begins to work or is required to work or is required to be in readiness to work until he is relieved from work and all responsibility for performing work. The term "on-duty time" shall include:
  2. All time at a carrier or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the motor carrier;
  3. All time inspecting equipment as required by Sec. 92.7 and 392.8 or otherwise inspecting, servicing or conditioning any motor vehicle at any time;
  4. All driving time as defined in subsection (b) of this section [that is, all time spent at the driving controls of a motor vehicle in operation];
  5. All time, other than driving time, in or upon any motor vehicle except time spent resting in a sleeper berth;
  6. All time loading or unloading a vehicle, supervising or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded;
  7. All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle."

Although flagging traffic while under the influence is not governed by federal law, you can and should prohibit that practice. Just because an activity is not governed by the new drug and alcohol regulations does not mean that it is permissible. Employers still have the right to control unacceptable or dangerous behavior such as drinking or using drugs while performing a non-safety sensitive job.

If a driver tests positive for drugs and undergoes a period of rehabilitation for up to 6 months, can he use his vacation and sick time for this period ?

Yes, 26 MRSA 685 (2-A) allows the employee to "apply normal sick leave and vacation pay, if any, for these periods". The town is not required to pay the employee while he is unavailable for work due to rehabilitation, but the employee's benefits continue to accrue.