Is the DOT guilty of overkill? - Department of Transportation regulations on drug testing - includes related article on a new substance detection system by Barringer Technologies Inc

Railway Age, May, 1994

A shocking New York subway accident spurred Congress to enact legislation requiring testing for alcohol as well as drugs. Some find the implementing rules faulty.

It is not often that a single incident can trigger Congressional action. But an incident on Aug. 28, 1991, did. On that date, five people were killed and 200 were injured when a New York City subway train derailed at a station. The train operator was later found to have a blood alcohol level of 0.21. He was blamed for running his train through a signal and then a switch.

Shocked by this, the Congress passed the Omnibus Transportation Employee Testing Act of 1991, directing the U.S. Department of Transportation to draw up alcohol testing regulations on top of the drug testing requirements already in effect.

DOT has done it, with rules that will become effective, for the most part, next Jan. 1.

Not everybody is happy with the new rules. Both the railroads and rail labor are looking at them, maybe not sure how to respond. The American Trucking Association isn't standing around, looking and dithering: ATA has gone to court to challenge the new alcohol testing rules.

About 7,460,000 transportation industry employees will be involved. Most of them will be trucking industry employees. But DOT estimates that 200,000 will be employees of mass transit systems and that 80,000 will be railroad employees.

The employees covered under the Federal Transit Administration are vehicle operators and controllers, mechanics, and armed security personnel.

The employees covered under the Federal Railroad Administration are people who come under the Hours of Service Act, which includes dispatchers and signal maintainers as well as on-train employees.

* Truckers take issue. The railroads and rail labor have had little to say, thus far, although both have reservations about the new rules dealing with alcohol. ATA has no reservations. ATA has filed suit, challenging pre-employment testing regs and calling for roadside random testing.

ATA calls pre-employment testing costly and ineffective, noting that use of alcohol is not a violation of the law. ATA also wants random alcohol testing to be done by law enforcement officials during roadside safety inspections, claiming that "the only way to be sure that all truck drivers have an equal chance of being tested is to conduct the tests out on the highways."

That might also put the expense of testing on the government, not the trucking industry, while the new regulations seem obviously to put testing expenses on the modes, including railroads and rail transit operators.

Rail labor, though without protest thus far, does have its reservations. One has to do with the fact that first-level supervisors would not be subject to test. As one labor representative puts it, "Let's say a supervisor gives an order, and he has a problem. Let's say the employee doesn't obey, because he knows the order isn't one that can be carried out safely. The employee can come up for discipline for insubordination. But there is no provision for testing the supervisor."

By and large, though, rail labor is not battling with management, because safety is of the first order of importance for both. One of the top labor lobbyists in Washington fully recognizes that the new regs could cost the carriers a lot of money, and he decries that, while wishing that programs such as Operation Red Block worked better, got more attention, and were expanded to more railroads.

Every railroad has a Rule G. It says (or it used to) that "The use of intoxicants or narcotics is prohibited. Employees must not have intoxicants or narcotics in their possession while on duty." That's a quote from the Consolidated Code of Operating Rules of 1959. The prohibition has only gotten stronger since then.

DOT recognizes that alcohol is a legal substance. What it's saying is that you can't have been drinking to the point where the result is an alcohol concentration of 0.04 or greater as indicated by a breath test, and that you can't drink within four hours of going on duty.

Refusing to submit to an alcohol test after an accident or using alcohol within eight hours after an accident or until tested is also prohibited. DOT will require pre-employment, post-accident, reasonable suspicion, random, and return-to-duty/follow-up testing.

The controversy has to do with the rate of random testing, and submissions were supposed to have been made in mid-April. What DOT says, at the outset, is that random testing has to be done on at least 25% of safety-sensitive employees. If the violation rate is more than 1%, then the test requirement would go to 50%. But if the violation rate drops to less that 0.5% for two consecutive years, then the random test rate would drop to 10%.

Employers, DOT says, are responsible for implementing and conducting the tests (subject to what happens with ATA's lawsuit, one supposes, which goes against DOT's statement that "Law enforcement officials will not conduct the tests as part of roadside or other inspections").