(a) Notification to employees. An employee will be notified in writing that the employee is subject to drug and alcohol testing before being required to submit to an alcohol or drug test.
(b) Pre-employment testing.
  (1) A final applicant must pass a drug test before being hired for a position that involves driving for the department.
  (2) The department will notify a final applicant of the results of a pre-employment drug test if the applicant requests those results in writing within 60 calendar days after being notified of the disposition of the employment application. The department will also inform the applicant which drugs, if any, were verified as positive.
(c) Testing for cause. Any employee who is reasonably suspected of using alcohol or drugs in the workplace will be required to undergo an alcohol or drug test.
  (1) An employee's direct involvement in a serious accident is considered to be grounds for reasonable suspicion that the employee is using alcohol or drugs in the workplace.
  (2) The decision to test an employee who was not directly involved in a serious accident must be based on the reasonable belief of a supervisor who has been trained on the signs and symptoms of alcohol and drug use. The decision must be based on specific, contemporaneous, articulable observations concerning appearance, behavior, speech, body odor, performance, or other indications of probable use. These observations may include indications of chronic use and withdrawal symptoms.
  (3) When a supervisor reasonably suspects an employee who was not directly involved in a serious accident of using alcohol or drugs in the workplace, the supervisor will contact the substance control officer immediately. The supervisor will make an immediate inquiry into all relevant surrounding circumstances and may confer with the employee. The substance control officer will document whether testing is justified based on the supervisor's observations and the substance control officer's independent analysis. Within 24 hours the supervisor or substance control officer will submit that person's observations in writing to the substance abuse program staff in the Human Resources Division.
  (4) Testing for cause must be approved by the director of the Human Resources Division or designee and by the relevant district engineer, district administrator, division director, office director, or designee not below the level of deputy district engineer, deputy division director, deputy office director, or business services coordinator.
  (5) Pending a decision to test or if testing is not available, the employee will be removed from critical duties. The employee will be reassigned to temporary modified duties or will be required to take sick leave, vacation leave, compensatory time, or leave without pay. The employee will only be required to take leave without pay if the employee has exhausted all accrued leave. This will continue until:
    (A) an alcohol test indicates a result of less than 0.02;
    (B) a negative drug test result is reported; or
    (C) twenty-four hours elapse after the decision to test.
  (6) An alcohol test should be administered as soon as possible and preferably within two hours after the decision to test was made. If the test is not administered within two hours, the substance control officer will record why the test was not administered until later. An alcohol test may not be administered after more than eight hours after the decision to test was made.
  (7) A drug test should be administered as soon as possible. A drug test may not be administered more than 32 hours after the decision to test was made.
(d) Required training. Before making a decision to test, a supervisor or substance control officer must have been trained in the indications of drug and alcohol use and on the department's policy and procedures related to testing for cause.

Source Note: The provisions of this §4.36 adopted to be effective November 21, 2002, 27 TexReg 10754; amended to be effective March 18, 2015, 40 TexReg 1523