Texas Administrative Code › Title 16 - ECONOMIC REGULATION › Part 4 - TEXAS DEPARTMENT OF LICENSING AND REGULATION › Chapter 86 - VEHICLE TOWING AND BOOTING › Section 86.710 - Responsibilities of Towing Company - Drug and Alcohol Testing Policy

Current through Reg. 49, No. 28; July 12, 2024
(a) A towing company adopting paragraphs (1)
				- (12) of this subsection will comply with Texas Occupations Code, §
									RSA
				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.