1. (a) Applicability. An employee in a safety sensitive position is subject to §4.32 and §4.33 of this title (relating to All Department Employees and Employees Who Drive for the Department) and the prohibitions in §4.34(b) of this title (relating to Commercial Drivers) as well as the requirements of this section. A position is considered safety sensitive for the purposes of this subsection if the employee holding the position performs one or more of the following activities or job functions at least four times within a 12 month period.

   1. (1) The employee operates a motor vehicle along a roadway in traffic in a fashion not usual to normal traffic. This includes driving slowly along the roadway or right of way, frequently pulling in and out of traffic, making frequent turns and stops, and getting in and out of a vehicle near traffic. Vehicle operation in this unusual manner in high speed traffic produces a high risk of causing immediate, catastrophic consequences. Examples of activities that fit this description include:

      1. (A) inspecting roadways and bridges for repairs;
      2. (B) inspecting barricades, traffic control devices, and traffic control setups;
      3. (C) inspecting maintenance projects such as bridge/roadway repairs or sign and striping operations;
      4. (D) assisting stranded motorists;
      5. (E) inspecting materials and work being performed at construction sites when unusual driving is required;
      6. (F) inspecting vegetation growing along roadways;
      7. (G) inspecting utility placements on roadways and rights of way;
      8. (H) inspecting driveway placements;
      9. (I) inspecting restorations of state rights of way;
      10. (J) supervising the installation of signals;
      11. (K) supervising sign installation;
      12. (L) monitoring ramp meters;
      13. (M) inspecting barrier fences;
      14. (N) inspecting for damaged signs;
      15. (O) inspecting draw bridges;
      16. (P) inspecting employee safety at maintenance and construction sites; or
      17. (Q) driving trucks that are operated in support of road crews.

   2. (2) The employee performs job duties, other than driving, on highways or rights of way, in or around traffic, such as:

      1. (A) repairing signals;
      2. (B) installing signals;
      3. (C) flagging traffic and assisting with traffic control;
      4. (D) installing reflective pavement markings;
      5. (E) repairing roadway surfaces and bridges;
      6. (F) performing water blasting;
      7. (G) setting up and taking down signs and barricades;
      8. (H) picking up litter on the right of way;
      9. (I) removing encroachments from state rights of way;
      10. (J) cleaning road signs;
      11. (K) replacing signs;
      12. (L) repairing sign illumination;
      13. (M) clearing debris from roadways and rights of way;
      14. (N) inspecting/reviewing construction contract work;
      15. (O) inspecting maintenance contract and operation work;
      16. (P) drilling foundation cores; or
      17. (Q) surveying crew operations.

   3. (3) The employee uses dangerous chemicals/materials around other employees and/or the traveling public in the following manner:

      1. (A) performs lab tests which require the use of materials which are combustible, flammable, toxic or corrosive;
      2. (B) tests materials which are combustible, flammable, toxic or corrosive;
      3. (C) operates photoprocessing equipment used in a laboratory to process film which requires the use of materials which are combustible, flammable, toxic or corrosive;
      4. (D) silkscreens signs which requires the use of materials which are combustible, flammable, toxic or corrosive;
      5. (E) cuts or welds materials using combustible, flammable, toxic or corrosive materials; or
      6. (F) uses or transports a nuclear density gauge.
   4. (4) The employee operates specialized maintenance/construction or heavy equipment in and around traffic or around one or more other employees. Examples of large/heavy equipment that fit this description include, but are not limited to hole diggers, rotary brooms, front end loaders, aerial buckets, snow plows, pony blades, epoxy machines, ladder trucks, cable lift hysters, rollers, cranes, paint machines, bulldozers, chip spreaders, rotomillers, backhoes, drilling augers, steel wheel pneumatic compacters, maintainers, wing plows, bucket trucks, drag lines, mechanical rig runners, maze meters, forklifts, and right of way mowers.
   5. (5) The employee operates aircraft or swing bridges. The operation of aircraft or swing bridges carries with it a high risk of potential harm such that a single drug or alcohol related lapse could have immediate, irremediable, and calamitous consequences to employees, passengers, and/or the traveling public.
   6. (6) The employee conducts or assists with underwater bridge inspections. The performance of this activity carries with it a high risk of potential harm such that a single alcohol or drug related lapse could have immediate, irremediable, and calamitous consequences to other employees or themselves.

2. (b) Testing.

   1. (1) Pre-employment testing. Pre-employment testing shall be conducted pursuant to §4.34(c)(1) of this title.
   2. (2) Post-accident testing. An alcohol test and a drug test will be administered to a safety sensitive employee who is directly involved in a serious accident under §4.34(c)(2) of this title.
   3. (3) Reasonable cause testing. Testing will be conducted under §4.32(b) of this title.

3. (c) Administrative and disciplinary actions.

   1. (1) Violations. Employees in safety sensitive positions who violate §4.34(b)(1)-(5) of this title will be subject to the administrative and disciplinary actions described in §4.32(c)(1)(B) of this title.
   2. (2) Removal from duties. The supervisor or substance control officer will immediately remove a safety sensitive employee from duties listed in §4.32(b)(2)(C) of this title and assign other duties, if available, until he or she meets all of the requirements listed in §4.32(d)(3).
   3. (3) Refusal to consent to testing. A safety sensitive employee will be terminated if he or she engages in any of the behaviors described in §4.34(d)(3) of this title.

4. (d) Mandatory referral and treatment.

   1. (1) Mandatory referral. A mandatory referral to the EAP will be made pursuant to the policies and procedures of §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.
5. (e) Education. Training shall be conducted for employees in safety sensitive positions and their supervisors. The training requirements are described in §4.34(f) of this title.

Source Note:The provisions of this §4.36 adopted to be effective October 27, 1995, 20 TexReg 8461; amended to be effective December 13, 1998, 23 TexReg 12452.