(a) Scope. Commercial drivers, safety-impact employees, and vessel crewmembers are subject both to the requirements of this section and to the general requirements that apply to all employees.
(b) Prohibited activities. Commercial drivers, safety-impact employees, and vessel crewmembers shall not:
  (1) report to work within four hours of consuming alcohol;
  (2) report to work or remain at work while under the influence of alcohol or drugs;
  (3) consume or possess alcohol while on duty or while driving a commercial motor vehicle;
  (4) use alcohol within eight hours after an accident or before undergoing a post-accident alcohol test, whichever comes first;
  (5) have a positive drug test result or an alcohol test result of 0.04 or greater; or
  (6) refuse to test.
(c) Testing.
  (1) The department will not hire or employ a final applicant for a position as a commercial driver, a safety-impact employee, or a vessel crewmember unless that final applicant passes a drug test.
    (A) A current employee must pass a drug test before being transferred or promoted into a position as a commercial driver, safety-impact employee, or vessel crewmember. If a current employee fails that drug test, the employee will not be transferred or promoted into the position and will be mandatorily referred to the EAP and required to complete treatment.
    (B) 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) Pre-employment inquiries for commercial drivers and vessel crewmembers will be conducted in accordance with 49 C.F.R. Part 40.
  (2) Commercial drivers are subject to post-accident testing if directly involved in a serious accident. Safety-impact employees are subject to post-accident testing if directly involved in a serious accident that occurs on a day in which the employee has performed or will perform a safety-impact function. Vessel crewmembers are subject to post-accident testing if directly involved in a serious marine incident.
    (A) Nothing in this section requires or permits delaying medical attention for injured people or prohibits an employee from leaving the scene of an accident for as long as necessary to obtain assistance in responding to the accident or to obtain emergency medical care.
    (B) Alcohol and drug tests will be administered after a serious accident or a serious marine incident.
      (i) An alcohol test should be administered as soon as possible after a serious accident or a serious marine incident and preferably within two hours. If the test is not administered within two hours, it may be administered within eight hours. In that case, the substance control officer will record why the test was not promptly administered.
      (ii) A drug test should be administered as soon as possible after a serious accident and in any event within 32 hours.
      (iii) A drug test should be administered as soon as possible after a serious marine incident. If a drug test is not administered within 32 hours due to safety concerns, it may be administered as soon as the safety concerns are addressed. If the drug test was not administered within 32 hours, the substance control officer will record why the test was not promptly administered.
    (C) The department will rely on a breath or blood test for the use of alcohol or a urine test for the use of drugs if it is conducted by federal, state, or local officials having independent authority for the test, if it conforms to applicable federal, state or local requirements, and if the department obtains the results of the tests.
  (3) Commercial drivers, safety-impact employees, and vessel crewmembers are subject to random alcohol and drug testing.
    (A) Commercial drivers, safety-impact employees, and vessel crewmembers will be selected for alcohol and drug testing on a random basis so that each employee has a substantially equal chance of selection. A commercial driver, safety-impact employee, or vessel crewmember will be subject to the possibility of random testing as long as the employee is employed by the department in that capacity. The department may randomly test all commercial drivers in one or more sections if each section is equally subject to selection, the department may randomly test all safety-impact employees in one or more sections if each section is equally subject to selection, and the department may randomly test all vessel crewmembers on one vessel as long as each vessel is equally subject to selection.
    (B) The Human Resources Division will ensure that the commercial drivers and safety-impact employees are tested annually at a rate equal to or higher than the U.S. Department of Transportation annual random testing rate for the Federal Motor Carrier Safety Administration for alcohol and for drugs and vessel crewmembers are tested annually at a rate equal to or higher than the U.S. Department of Transportation annual random testing rate for the U.S. Coast Guard requirements for alcohol and for drugs.
(d) Administrative and disciplinary actions.
  (1) A commercial driver, safety-impact employee, or vessel crewmember who violates subsection (b) of this section will be subject to all potential administrative and disciplinary actions available under this subchapter.
  (2) The commercial driver, safety-impact employee, or vessel crewmember will be removed from critical duties until the employee provides a completed return-to-work form. 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.
  (3) A final applicant for a position as a commercial driver, safety-impact employee, or vessel crewmember will not be hired if the final applicant has engaged in conduct that would violate subsection (b) of this section and has not received the equivalent of the required treatment. A commercial driver, safety-impact employee, or vessel crewmember will be terminated from the department if it is determined that at the time of hire, the applicant had engaged in conduct that would violate subsection (b) of this section and had not received the equivalent of the required treatment.
(e) Education. Each commercial driver, safety-impact employee, vessel crewmember, and supervisor of an employee in any of those categories will receive training on indications of alcohol or drug use and on the effects of alcohol and drug use on personal health, safety, and the work environment.
(f) Additional reporting requirements for vessel crewmembers.
  (1) If a vessel crewmember receives a positive drug test result, the substance control officer shall report it in writing to the nearest Coast Guard Officer in Charge, Marine Inspection.
  (2) A vessel crewmember who has received a positive drug test result may not perform vessel crewmember duties until found by the medical review officer to be drug free and to pose a sufficiently low risk for further illegal drug use and the requirements of 46 C.F.R. Part 5 have been satisfied. The employee must agree to follow-up testing determined by the medical review officer for an additional period of up to 60 months.

Source Note: The provisions of this §4.44 adopted to be effective November 21, 2002, 27 TexReg 10754; amended to be effective January 1, 2009, 33 TexReg 10053; amended to be effective March 18, 2015, 40 TexReg 1523