RULE §86.710 Responsibilities of Towing Company--Drug and Alcohol Testing Policy


Published: 2015

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(a) A towing company adopting paragraphs (1) - (12)
of this subsection will comply with Texas Occupations Code, §2308.158.

  (1) Purpose and Scope. This drug and alcohol testing
policy provides guidance to supervisors and towing operators about
their responsibilities under this policy. Except as stated in paragraph
(12), this policy applies to all towing operators and all towing operator
job applicants.
  (2) Definitions. The words and terms used in this policy
shall have their ordinary meaning unless the words or terms are used
in Texas Occupations Code, Chapter 2308 or Title 49 Code of Federal
Regulation Part 40, in which event the words or terms shall have the
meaning designated in those regulations.
  (3) Consent Form.
    (A) Before a drug or alcohol test is administered,
towing operators and applicants are required to sign a consent form
authorizing the test and permitting release of test results to the
medical review officer (MRO), the company, and the department. The
consent form shall provide space for employees and applicants to acknowledge
that they have been notified of the drug and alcohol testing policy.
    (B) The consent form shall set forth the following
information:
      (i) the procedure for confirming and verifying an initial
positive test result;
      (ii) the consequences of a verified positive test result;
and
      (iii) the consequences of refusing to undergo a drug
or alcohol test.
    (C) The consent form also provides authorization for
certified or licensed attending medical personnel to take and have
analyzed appropriate specimens to determine if the tested drugs were
present in the towing operator's or applicant's system.
  (4) Compliance with Drug and Alcohol Testing Policy.
The failure or refusal by a towing operator or applicant to cooperate
fully by signing necessary consent forms or other required documents
or the failure or refusal to submit to any test or any procedure under
this policy in a timely manner will be grounds for refusal to hire
or for termination. The submission by an applicant or employee of
a urine sample that is not his/her own or is a diluted specimen shall
be grounds for refusal to hire or for termination.
  (5) General Rules. This drug and alcohol testing policy
is governed by these general rules:
    (A) towing operators shall not take or be under the
influence of any drugs unless prescribed by the employee's licensed
physician.
    (B) towing operators are prohibited from engaging in
the manufacture, sale, distribution, use, or unauthorized possession
of illegal drugs at any time.
    (C) all towing company property is subject to inspection
at any time without notice. There should be no expectation of privacy
in or on such property. Towing company property includes, but is not
limited to, vehicles, desks, containers, files, and lockers.
    (D) any towing operator convicted of violating a criminal
drug or alcohol statute shall inform his/her supervisor of such conviction
(including pleas of guilty and nolo contendere) within
five days of the conviction occurring. Failure to inform the supervisor
subjects the employee to disciplinary action up to and including termination
for the first offense. The towing company will notify the Texas Department
of Licensing and Regulation of the conviction (including pleas of
guilty and nolo contendere).
  (6) Types of Tests.
    (A) Pre-employment. All applicants for positions requiring
a towing operator's license, who have received a conditional offer
of employment, must take a drug test before receiving a final offer
of employment.
    (B) Annual. All towing operators employed by a towing
company must complete at least one scheduled drug test each 12-month
period from the date of the initial license or renewal.
    (C) Random Testing. In addition to annual testing,
towing operators are subject to random urine drug and alcohol testing.
Under this policy, annual random test for drugs and alcohol of at
least 25 percent of the total number of towing operators is required.
      (i) A minimum of 15 minutes and a maximum of two hours
will be allowed between notification of a towing operator for random
urine drug and alcohol testing and the actual presentation for specimen
collection.
      (ii) Random donor selection dates will be unannounced
with unpredictable frequency.
      (iii) Each licensed towing company participating in
a consortium must ensure that the consortium performs random drug
testing on at least 25% of the total number of the licensed towing
operators participating in and tested by the consortium.
    (D) Return-to-Duty and Follow-Up.
      (i) Any towing operator who has violated this drug
and alcohol testing policy and is allowed to return to work must submit
to a return-to-duty test. Follow-up tests will be unannounced, and
at least six tests will be conducted in the first 12 months after
a towing operator returns to duty. Follow-up testing may be extended
for up to 60 months following return to duty. The test results of
all return to duty and follow-up must be negative.
      (ii) The towing operator will be required to pay for
his or her return-to-duty and follow-up tests accordingly.
  (7) Drug Testing. The drugs for which tests are required
under this policy are marijuana, cocaine, amphetamines, phencyclidine
(PCP), and opiates.
  (8) Specimen Collection Procedures.
    (A) All urine specimens will be collected by a laboratory
that is certified and monitored by the Federal Department of Health
and Human Services.
    (B) Drug and alcohol testing procedures include split
specimen procedures. Each urine specimen is subdivided into two bottles
labeled as a "primary" and a "split" specimen. Only the primary specimen
is opened and used for the urinalysis. The split specimen bottle remains
sealed and is stored at the laboratory.
    (C) If the analysis of the primary specimen confirms
the presence of drugs or alcohol, the towing operator has 72 hours
to request sending the split specimen to another Federal Department
of Health and Human Services (DHHS) certified laboratory for analysis.
The towing operator will be required to pay for his or her split specimen
test(s).
    (D) For the towing operator's protection, the results
of the analysis will be confidential except for the testing laboratory.
After the MRO has evaluated a positive test result, the towing operator
will be notified, and the MRO will notify the company.
    (E) The towing company will notify the department of
the positive test result. Notification to the department must occur
within 3 days of receipt of the confirmed test results from the MRO.
The notification must include the:
      (i) towing operator's name;
      (ii) towing operator's license number;
      (iii) date of the positive test;
      (iv) substance detected by the drug and alcohol test;
and
      (v) disciplinary action imposed violation of the drug
testing policy.
  (9) Reporting and Reviewing of Drug and Alcohol Testing
Results.
    (A) The company shall designate a medical review officer
(MRO) to receive, report, and store testing information transmitted
by the laboratory. This person shall be a licensed physician with
knowledge of substance abuse disorders.
    (B) The laboratory shall report test results only to
the designated MRO, who will review them in accordance with accepted
guidelines and the procedures adopted by the Federal Department of
Transportation.
    (C) Reports from the laboratory to the MRO shall be
in writing or by fax. The MRO may talk with the towing operator by
telephone upon exchange of acceptable identification.
    (D) Neither the company, the laboratory, nor the MRO
shall disclose any drug or alcohol test results to any other person
except under written authorization from the towing operator, unless
such results are necessary in the process of resolution of accident
(incident) investigations, requested by court order, or required to
be released to parties having a legal right-to-know as determined
by state and federal law.
  (10) Distribution of Information to Towing Operators.
The minimal distribution of information for all towing operators will
include the display and distribution of:
    (A) informational material on the physical and mental
effects of drugs and alcohol;
    (B) an existing community services hotline number,
available drug and alcohol counseling, rehabilitation, and assistance
program;
    (C) the company's policy regarding the use of prohibited
drugs and/or alcohol; and
    (D) the consequences or disciplinary action that may
be imposed upon VSF employees for violating the drug and alcohol policy.

  (11) Consequences of a Confirmed Positive Drug and
Alcohol Test.
    (A) Job applicants will be denied employment if their
initial positive pre-employment drug test results have been confirmed.
    (B) If a towing operator's positive drug and alcohol
test result has been confirmed, the towing operator will stand down
from towing operation duties and may be subject to disciplinary action
up to and including termination.
    (C) The company may consider the following factors
in determining the appropriate disciplinary action: the towing operator's
work history, length of employment, current work assignment, current
job performance, and existence of past disciplinary actions.
    (D) No disciplinary action may be taken pursuant to
this drug and alcohol policy against towing operators who voluntarily
identify themselves as drug or alcohol users, obtain counseling, rehabilitation
and comply with return to duty and follow-up drug and alcohol testing.
  (12) Exceptions.
    (A) Towing operators subject to random drug and alcohol
testing under Title 49, Code of Federal Regulation, Part 40 who have
been randomly tested in the 12-month reporting period are exempt from
the annual test requirement, provided that the towing operator's tested
negative and the negative test results are submitted to and verified
by the MRO.
    (B) Towing operators holding a valid Towing Operator
License issued by the department who are tested for drugs and alcohol
in accordance with 16 Texas Administrative Code Chapter 85 are exempt
from this section.
(b) Independent drug and alcohol testing policy.
  (1) A towing company may file an independent drug and
alcohol testing policy.
  (2) The filing must describe how the independent drug
and alcohol testing policy is as stringent as each provision of the
model policy set forth in subsection (a).
(c) Compliance. A towing company is required to adopt
and implement an alcohol and drug testing policy that complies with
subsection (a) or (b).


Source Note: The provisions of this §86.710 adopted to be effective April 15, 2008, 33 TexReg 2940; amended to be effective May 3, 2010, 35 TexReg 3486; amended to be effective January 16, 2012, 37 TexReg 116