The U.S. Department of Transportation’s Federal Railroad Administration’s (“FRA”) final rule expanding drug and alcohol testing to maintenance-of-way (“MOW”) employees takes effect on June 12, 2017. MOW employees are “employees of a railroad, or of a contractor to a railroad, whose duties include inspection, construction, maintenance or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway maintenance machinery on or near track or with the potential of fouling a track, and flagmen and watchmen/lookouts.” FRA has amended its regulations (set forth at 49 CFR Part 219) to expand the definition of “employees” to include employees, volunteers and probationary employees performing activities for a railroad or a contractor (including subcontractors) to a railroad.  Additionally FRA has adopted the term “regulated service” to encompass both “covered service” and MOW activities.  Performance of a “regulated service” makes an individual a “regulated employee” subject to Part 219, regardless of whether the individual is employed by a railroad or a contractor (including subcontractors) to a railroad.

The new rule subjects MOW employees to a broader spectrum of drug and alcohol testing, including random testing, pre-employment testing, post-accident testing, return-to-duty testing, reasonable cause testing and reasonable suspicion testing.  While expansive testing has long been in place for other railroad workers, such as engineers and dispatchers, MOW employees previously were required to be tested only if they died after an accident.  The regulations contain certain exceptions for small railroads and their contractors.

Only MOW employees hired on or after June 12, 2017 are subject to pre-employment drug testing. (If a MOW employee is subject to both FRA and FMCSA regulations, only one pre-employment drug test is necessary).  Starting on the effective date, current MOW employees are subject to FRA’s initial minimum random drug testing rate of 50% and initial minimum alcohol testing rate of 25% (even though current FRA random test rates for other covered employees are 25% for drugs and 10% for alcohol).  This will require employers to create a separate random testing pool for MOW employees, both to allow those employees to be tested at the appropriate testing rates and to establish a separate database for MIS reporting.

FRA also has created a separate subpart for reasonable cause testing, to distinguish it from reasonable suspicion testing. Reasonable cause testing is triggered by certain types of incidents or rules violations.  It is not mandatory but may be elected by the railroad and if elected, all regulated employees must be notified that such testing will be conducted.  Reasonable suspicion testing, however, is mandatory and must be conducted when the railroad has reasonable suspicion to believe that the regulated employee has violated a drug or alcohol prohibition set forth in the regulations.

Employers subject to FRA drug and alcohol testing regulations must publish a written policy that must be distributed to each regulated employee.  The regulations contain a list of required items to be included in the policy.  Employers of MOW employees should ensure that they have written drug and alcohol testing policies that comply with FRA’s requirements effective June 12, 2017.