49 C.F.R. Subpart E—Identification of Troubled Employees
Title 49 - Transportation
(a) The purpose of this subpart is to prevent the use of alcohol and drugs in connection with covered service. (b) Each railroad must adopt, publish and implement— (1) A policy designed to encourage and facilitate the identification of those covered employees who abuse alcohol or drugs as a part of a treatable condition and to ensure that such employees are provided the opportunity to obtain counseling or treatment before those problems manifest themselves in detected violations of this part (hereafter “voluntary referral policy”); and (2) A policy designed to foster employee participation in preventing violations of this subpart and encourage co-worker participation in the direct enforcement of this part (hereafter “co-worker report policy”). (c) A railroad may comply with this subpart by adopting, publishing and implementing policies meeting the specific requirements of §§219.403 and 219.405 or by complying with §219.407. (d) If a railroad complies with this part by adopting, publishing and implementing policies consistent with §§219.403 and 219.405, the railroad must make such policies, and publications announcing such policies, available for inspection and copying by FRA. (e) Nothing in this subpart may be construed to— (1) Require payment of compensation for any period an employee is out of service under a voluntary referral or co-worker report policy; (2) Require a railroad to adhere to a voluntary referral or co-worker report policy in a case where the referral or report is made for the purpose, or with the effect, of anticipating the imminent and probable detection of a rule violation by a supervising employee; or (3) Limit the discretion of a railroad to dismiss or otherwise discipline an employee for specific rule violations or criminal offenses, except as specifically provided by this subpart. (a) Scope. This section prescribes minimum standards for voluntary referral policies. Nothing in this section restricts a railroad from adopting, publishing and implementing a voluntary referral policy that affords more favorable conditions to employees troubled by alcohol or drug abuse problems, consistent with the railroad's responsibility to prevent violations of §§219.101 and 219.102. (b) Required provisions. A voluntary referral policy must include the following provisions: (1) A covered employee who is affected by an alcohol or drug use problem may maintain an employment relationship with the railroad if, before the employee is charged with conduct deemed by the railroad sufficient to warrant dismissal, the employee seeks assistance through the railroad for the employee's alcohol or drug use problem or is referred for such assistance by another employee or by a representative of the employee's collective bargaining unit. The railroad must specify whether, and under what circumstances, its policy provides for the acceptance of referrals from other sources, including (at the option of the railroad) supervisory employees. (2) Except as may be provided under paragraph (c) of this section, the railroad treats the referral and subsequent handling, including counseling and treatment, as confidential. (3) The railroad will, to the extent necessary for treatment and rehabilitation, grant the employee a leave of absence from the railroad for the period necessary to complete primary treatment and establish control over the employee's alcohol or drug problem. The policy must allow a leave of absence of not less than 45 days, if necessary for the purpose of meeting initial treatment needs. (4) Except as may be provided under paragraph (c)(2) of this section, the employee will be returned to service on the recommendation of the substance abuse professional. Approval to return to service may not be unreasonably withheld. (5) With respect to a certified locomotive engineer or a candidate for certification, the railroad must meet the requirements of §240.119(e) of this chapter. (c) Optional provisions. A voluntary referral policy may include any of the following provisions, at the option of the railroad: (1) The policy may provide that the rule of confidentiality is waived if— (i) The employee at any time refuses to cooperate in a recommended course of counseling or treatment; and/or (ii) The employee is later determined, after investigation, to have been involved in an alcohol or drug-related disciplinary offense growing out of subsequent conduct. (2) The policy may require successful completion of a return-to-service medical examination as a further condition on reinstatement in covered service. (3) The policy may provide that it does not apply to an employee who has previously been assisted by the railroad under a policy or program substantially consistent with this section or who has previously elected to waive investigation under §219.405 (co-worker report policy). (4) The policy may provide that, in order to invoke its benefits, the employee must report to the contact designated by the railroad either: (i) During non-duty hours (i.e., at a time when the employee is off duty); or (ii) While unimpaired and otherwise in compliance with the railroad's alcohol and drug rules consistent with this subpart. (a) Scope. This section prescribes minimum standards for co-worker report policies. Nothing in this section restricts a railroad from adopting, publishing and implementing a policy that affords more favorable conditions to employees troubled by alcohol or drug abuse problems, consistent with the railroad's responsibility to prevent violations of §§219.101 and 219.102. (b) Employment relationship. A co-worker report policy must provide that a covered employee may maintain an employment relationship with the railroad following an alleged first offense under this part or the railroad's alcohol and drug rules, subject to the conditions and procedures contained in this section. (c) General conditions and procedures. (1) The alleged violation must come to the attention of the railroad as a result of a report by a co-worker that the employee was apparently unsafe to work with or was, or appeared to be, in violation of this part or the railroad's alcohol and drug rules. (2) If the railroad representative determines that the employee is in violation, the railroad may immediately remove the employee from service in accordance with its existing policies and procedures. (3) The employee must elect to waive investigation on the rule charge and must contact the substance abuse professional within a reasonable period specified by the policy. (4) The substance abuse professional must schedule necessary interviews with the employee and complete an evaluation within 10 calendar days of the date on which the employee contacts the professional with a request for evaluation under the policy, unless it becomes necessary to refer the employee for further evaluation. In each case, all necessary evaluations must be completed within 20 days of the date on which the employee contacts the professional. (d) When treatment is required. If the substance abuse professional determines that the employee is affected by psychological or chemical dependence on alcohol or a drug or by another identifiable and treatable mental or physical disorder involving the abuse of alcohol or drugs as a primary manifestation, the following conditions and procedures apply: (1) The railroad must, to the extent necessary for treatment and rehabilitation, grant the employee a leave of absence from the railroad for the period necessary to complete primary treatment and establish control over the employee's alcohol or drug problem. The policy must allow a leave of absence of not less than 45 days, if necessary for the purpose of meeting initial treatment needs. (2) The employee must agree to undertake and successfully complete a course of treatment deemed acceptable by the substance abuse professional. (3) The railroad must promptly return the employee to service, on recommendation of the substance abuse professional, when the employee has established control over the substance abuse problem. Return to service may also be conditioned on successful completion of a return-to-service medical examination. Approval to return to service may not be unreasonably withheld. (4) Following return to service, the employee, as a further condition on withholding of discipline, may, as necessary, be required to participate in a reasonable program of follow-up treatment for a period not to exceed 60 months from the date the employee was originally withdrawn from service. (e) When treatment is not required. If the substance abuse professional determines that the employee is not affected by an identifiable and treatable mental or physical disorder— (1) The railroad must return the employee to service within 5 days after completion of the evaluation. (2) During or following the out-of-service period, the railroad may require the employee to participate in a program of education and training concerning the effects of alcohol and drugs on occupational or transportation safety. (f) Follow-up tests. A railroad may conduct return-to-service and/or follow-up tests (as described in §219.104) of an employee who waives investigation and is determined to be ready to return to service under this section. (a) In lieu of a policy under §219.403 (voluntary referral) or §219.405 (co-worker report), or both, a railroad may adopt, publish and implement, with respect to a particular class or craft of covered employees, an alternate policy or policies having as their purpose the prevention of alcohol or drug use in railroad operations, if such policy or policies have the written concurrence of the recognized representatives of such employees. (b) The concurrence of recognized employee representatives in an alternate policy may be evidenced by a collective bargaining agreement or any other document describing the class or craft of employees to which the alternate policy applies. The agreement or other document must make express reference to this part and to the intention of the railroad and employee representatives that the alternate policy applies in lieu of the policy required by §219.403, §219.405, or both. (c) The railroad must file the agreement or other document described in paragraph (b) of this section with the Associate Administrator for Safety, FRA. If the alternate policy is amended or revoked, the railroad must file a notice of such amendment or revocation at least 30 days prior to the effective date of such action. (d) This section does not excuse a railroad from adopting, publishing and implementing the policies required by §§219.403 and 219.405 with respect to any group of covered employees not within the coverage of an appropriate alternate policy.
Title 49: Transportation
PART 219—CONTROL OF ALCOHOL AND DRUG USE
Subpart E—Identification of Troubled Employees
§ 219.401 Requirement for policies.
§ 219.403 Voluntary referral policy.
§ 219.405 Co-worker report policy.
§ 219.407 Alternate policies.
