FTA Drug and Alcohol Regulation Updates
Issue 20, page 4

POST ACCIDENT TESTING

Where to Find? .....

49 CFR Part 40, Procedures for Transportation Workplace Drug Testing Programs

Revised:
December 19, 2000
Federal Register Vol. 65,
Pages 79462 - 79579.
Primary Topic: Procedures for Transportation Workplace Drug and Alcohol Testing Program Revised Final Rule (49 CFR Part 40)

Technical Amendments:
August 1, 2001
Federal Register Vol. 66
Pages 41943 - 41955
Primary Topic Clarifications
and Collections to Part 40; Common Preamble to Modal Rules

HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs Notice of Proposed Rulemaking:
August 21, 2001
Federal Register Vol. 66
Pages 43876-43882

The information presented on this page should be used to update Chapters 6 of the Implementation Guidelines.

Requirement For Post-Accident Testing Clarified

     The accident definition and post-accident testing requirement remained the same with the publication of FTA’s new drug and alcohol testing rule (49 CFR Part 655). However, there continues to be confusion regarding when a test is required and when it is not.

     An accident is defined (§655.4) as an occurrence associated with the operation of a vehicle in which:

• An individual dies;

• An individual suffers a bodily injury and immediately receives medical treatment away from the scene of an accident;

• The mass transit vehicle is a bus, electric bus, van, or automobile in which one or more
  vehicles incurs disabling damage as the result of the occurrence and is transported away from the scene by a tow truck or other vehicle. Look-alike historical trolley buses that operate on surface roads without a fixed guideway are considered buses for purposes of this definition. “Disabling Damage,” means damage that precludes departure of any vehicle from the scene of the occurrence in its usual manner in daylight after simple repairs. Disabling damage includes damage to vehicles that could have been operated, but would have been further damaged if so operated.

• The mass transit vehicle involved is a railcar, trolley car, trolley bus (on a fixed guideway or overhead wire), or vessel and is removed from operation.

     Whenever there is a loss of human life, each surviving safety-sensitive employee operating the mass transit vehicle at the time of the accident must be tested. Safety-sensitive employees not on the vehicle (e.g., maintenance personnel) whose performance could have contributed to the accident (as determined by the transit agency using the best information available at the time of the accident) must also be tested.

     Following nonfatal accidents, employers shall test each safety-sensitive employee operating the mass transit vehicle at the time of the accident unless the employer determines that the covered employee’s performance can be completely discounted as a contributing factor to the accident. The employer shall test any other safety-sensitive employee whose performance could have contributed to the accident. The decision must be made using the best information available at the time.

     Non-fatal accidents involving a bus, electric bus, van, or automobile must meet the definition of an accident for these types of vehicles to be considered an accident. For these types of vehicles, “removal from operation” is not a criterion for a post-accident test. Thus, employers that take a vehicle out of service without meeting the other criteria (i.e., disabling damage or bodily injury that requires immediate medical treatment away from the scene) may not conduct a post –accident test under FTA authority. The portion of the definition that addresses “removal from operation” is the portion that deals only with vehicles on fixed guideways (i.e., rail car, trolley car, trolley bus) or vessels. The definition for these vehicles does not include disabling damage.

     An “occurrence associated with the operation of a vehicle” means that the accident or incident must be directly related to the manner in which the driver applies the brake, accelerates, or steers the vehicle. Operation of a vehicle does not include operation of the lift. An accident could be the result of a collision with another vehicle or pedestrian or could be associated with an incident that occurs on the vehicle without any contact with another vehicle (i.e., a passenger falls on the bus due to the manner in which the vehicle was operated).

     Vehicles covered include a bus, electric bus, van, automobile, rail car, trolley car, trolley bus, or vessel that is used for mass transportation or for ancillary services. Ancillary services include non-revenue service commercial motor vehicles and vehicles used by armed security personnel. Thus, accidents involving supervisor or general manager vehicles that are not used to transport passengers do not meet this definition and do not justify an FTA post-accident test.