Texas Administrative Code › Title 16 - ECONOMIC REGULATION › Part 4 - TEXAS DEPARTMENT OF LICENSING AND REGULATION › Chapter 85 - VEHICLE STORAGE FACILITIES › Section 85.725 - Responsibilities of Licensee - Drug Testing Policy

Current through Reg. 49, No. 28; July 12, 2024
(a) A VSF adopting paragraphs (1) - (12) will
				comply with Texas Occupations Code, §
									RSA
				2303.160.
(1) Purpose and Scope. This drug testing
				policy provides guidance to supervisors and VSF employees about their
				responsibilities under this policy. Except as stated in paragraph (12), this
				policy applies to all VSF employees and all VSF 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 2303 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 test is administered, VSF
				employees 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 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 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 and applicant's system.
(4) Compliance with Drug Testing Policy. The
				failure or refusal by a VSF employee 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 testing policy
				is governed by these general rules:
(A) VSF
				employees shall not take or be under the influence of any drugs unless
				prescribed by the employee's licensed physician.
(B) VSF employees are prohibited from
				engaging in the manufacture, sale, distribution, use, or unauthorized
				possession of illegal drugs at any time.
(C) All VSF property is subject to inspection
				at any time without notice. There should be no expectation of privacy in or on
				such property. VSF property includes, but is not limited to, vehicles, desks,
				containers, files, and lockers.
(D)
				Any VSF employee convicted of violating a criminal drug 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 VSF 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 VSF employee license, who have received a conditional
				offer of employment, must take a drug test before receiving a final offer of
				employment.
(B) Annual. All VSF
				employees employed by a VSF 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, VSF employees are subject to random urine drug testing. Under this
				policy, annual random test for drugs of at least 25 percent of the total number
				of VSF employees is required.
(i) A minimum
				of 15 minutes and a maximum of two hours will be allowed between notification
				of a VSF employee for random urine drug testing and the actual presentation for
				specimen collection.
(ii) Random
				donor selection dates will be unannounced with unpredictable
				frequency.
(iii) Each licensed VSF
				participating in a consortium must ensure that the consortium performs random
				drug testing on at least 25% of the total number of the licensed VSF employees
				participating in and tested by the consortium.
(D) Return-to-Duty and Follow-Up.
(i) Any VSF employee who has violated this
				drug 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 VSF employee 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 VSF employee
				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 (DHHS).
(B) Drug 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, the VSF
				employee has 72 hours to request sending the split specimen to another federal
				DHHS certified laboratory for analysis. The VSF employee will be required to
				pay for his or her split specimen test(s).
(D) For the VSF employee'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 VSF employee will be
				notified, and the MRO will notify the company.
(E) The VSF 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) VSF employee's
				name;
(ii) VSF employee license
				number;
(iii) date of the positive
				test;
(iv) substance detected by
				the drug test; and
(v) disciplinary
				action imposed for violation of the drug testing policy.
(9) Reporting and Reviewing of
				Drug 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 VSF employee by telephone upon exchange of acceptable
				identification.
(D) Neither the
				company, the laboratory, nor the MRO shall disclose any drug test results to
				any other person except under written authorization from the VSF employee,
				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 VSF Employee. The minimal distribution of information for all
				VSF employees will include the display and distribution of:
(A) informational material on the physical
				and mental effects of drugs;
(B) an
				existing community services hotline number, available drug 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 policy.
(11) Consequences of a Confirmed
				Positive Drug Test.
(A) Job applicants will
				be denied employment if their initial positive pre-employment drug test results
				have been confirmed.
(B) If a VSF
				employee's positive drug test result has been confirmed, the VSF employee will
				stand down from VSF 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 response: the VSF employee'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 policy against VSF
				employees who voluntarily identify themselves as drug users, obtain counseling,
				rehabilitation and comply with return to duty and follow-up drug
				testing.
(12)
				Exceptions.
(A) VSF employees subject to
				random drug 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 VSF employee tested negative and the
				negative test results are submitted to and verified by the MRO.
(B) VSF employees holding a valid towing
				operator license issued by the department who are tested for drugs in
				accordance with 16 Texas Administrative Code Chapter 86 are exempt from this
				section.