1. (a) Applicability. An employee who is a commercial driver is subject to all of §4.32 and §4.33 of this title (relating to All Department Employees and Employees Who Drive for the Department), as well as the requirements of this section.

2. (b) Prohibitions. A commercial driver is prohibited from:

   1. (1) reporting to work within four hours of consuming alcohol;
   2. (2) reporting to work or remaining at work while under the influence of alcohol or dangerous drugs;
   3. (3) consuming or possessing alcohol while on duty or while driving a commercial motor vehicle;
   4. (4) using alcohol within eight hours following an accident or prior to undergoing a post-accident alcohol test, whichever comes first;
   5. (5) having a positive drug test result or an alcohol test result of .04 or greater; and
   6. (6) refusing to submit to a required alcohol or drug test.

3. (c) Testing.

   1. (1) Pre-employment testing.

      1. (A) The department shall not hire or employ a final applicant for a position as a commercial driver unless that person passes a drug test. A current employee, who is a final applicant for a commercial driver position, including transfers and promotions, must pass a drug test unless he or she has previously been drug tested by the department during the preceding three year period, and all drug test results were negative. A current employee who fails a drug test will not be hired for that position, and will be mandatorily referred to the EAP and required to successfully complete treatment, as described in §4.32(d) of this title.
      2. (B) The department will notify a final applicant of the results of a pre-employment drug test if the applicant requests such results within 60 calendar days of being notified of the disposition of the employment application. The department will also inform the applicant which drugs were verified as positive.

      3. (C) The department will request information from previous or current employers on final commercial driver applicants, pursuant to the driver's written authorization, if the final applicant (including an employee who is transferred or promoted) has performed commercial driving duties during the preceding two years from the date of application. Information to be requested will include:

         1. (i) alcohol tests with a result of .04 alcohol concentration or greater;
         2. (ii) verified positive controlled substances test results; and
         3. (iii) refusals to be tested.
      4. (D) The department shall not use a driver to perform driving or safety sensitive duties as described in §4.36(a) of this title (relating to Safety Sensitive Employees) if the department believes that the driver has violated any of the prohibitions in subparagraph (C)(i)-(iii) of this paragraph without receiving the required treatment, as stated on the Release Form for Evaluation/Treatment Records from Substance Abuse Professionals. If the employee has not completed the required treatment, the employee will be terminated.

   2. (2) Post-accident testing. A commercial driver who is directly involved in a serious accident, or in any accident in which the events and circumstances give rise to a reasonable suspicion that the employee is under the influence of alcohol or dangerous drugs at the time of the occurrence, in accordance with paragraph (3) of this subsection, is subject to post-accident alcohol and drug testing.

      1. (A) If a commercial driver does not remain readily available for such testing, the substance control officer may record that the employee refused to submit to testing.
      2. (B) Nothing in this section will be construed to require the delay of necessary medical attention for injured people following an accident or to prohibit an employee from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care.
      3. (C) No commercial driver required to take a post-accident alcohol test may use alcohol for eight hours following the accident or until he or she undergoes an alcohol test, whichever occurs first.
      4. (D) An alcohol test should be administered within two hours following the accident. If an alcohol test is not administered within two hours, the department will continue to try to test up to eight hours following the accident. The substance control officer will prepare a record stating the reasons the test was not promptly administered.
      5. (E) A drug test should be administered as soon as possible. If a drug test is not administered within 32 hours following the accident, the substance control officer will cease attempts to administer a drug test, and prepare a record stating the reasons the test was not promptly administered.
      6. (F) The results of a breath or blood test for the use of alcohol or a urine test for the use of dangerous drugs, conducted by federal, state, or local officials having independent authority for the test, will be considered to meet the requirements of this section, provided such tests conform to applicable federal, state or local requirements, and that the department obtains the results of the tests.
   3. (3) Reasonable cause testing. Reasonable cause testing of all department employees will be conducted under §4.32(b) of this title.

   4. (4) Random testing. All commercial drivers are subject to random alcohol and drug testing.

      1. (A) A commercial driver subject to random testing for dangerous drugs and alcohol will be selected for testing on a random basis in a manner to ensure that each commercial driver has a substantially equal chance of selection on a scientifically valid basis. The testing frequency and selection process will be such that a commercial driver's chance of selection continues to exist throughout his or her employment in a commercial driver position.
      2. (B) The Human Resources Division will ensure that commercial drivers are tested on a random basis at an annual rate of at least 10% but not more than 25% for alcohol testing and not less than 50% for drug testing. The percentage is based on respective employee categories in each payroll unit or equivalent work unit. The frequency of testing will also be at random, but will be sufficient to assure that the number of random tests conducted annually will be at least 10% but not more than 25% for alcohol or not less than 50% for drugs of the number of commercial drivers.
      3. (C) Random selection of commercial drivers may be accomplished by periodically selecting one or more sections and testing all commercial drivers, provided each section remains equally subject to selection.

4. (d) Administrative and disciplinary actions.

   1. (1) Violations. A commercial driver who violates subsection (b)(1)-(5) of this section will be subject to the administrative and disciplinary actions described in §4.32(c)(1)(B) of this title.
   2. (2) Remove from duties. The supervisor or substance control officer will immediately remove a commercial driver from performing the duties listed in §4.32(b)(2)(C) of this title and assign other duties to the employee, if available, until he or she meets all of the criteria listed in §4.32(d)(3) of this title.

   3. (3) Refusal to consent to testing. The department will terminate a commercial driver from employment if he or she:

      1. (A) refuses to consent to an alcohol or drug test;
      2. (B) fails to arrive at the testing site at the assigned time;
      3. (C) fails to cooperate with the collection site person; or
      4. (D) refuses to sign the certification on the Breath Alcohol Testing form.

5. (e) Mandatory referral and treatment.

   1. (1) Mandatory referral. A mandatory referral to the EAP will be made pursuant to §4.32(d) of this title.
   2. (2) Treatment. The policies and procedures for EAP treatment are described in §4.32(d)(2) of this title.
6. (f) Education. All commercial drivers and supervisors of commercial drivers will receive training on the effects and consequences of alcohol and drug use on personal health, safety, and the work environment and the manifestations and behavioral changes that may indicate alcohol or drug use.

Source Note:The provisions of this §4.34 adopted to be effective October 27, 1995, 20 TexReg 8461; amended to be effective December 13, 1998, 23 TexReg 12452.