From: Staffing
Texas Drug and Alcohol Testing
Texas Workforce Commission
According to the Texas Workforce Commission, under Texas law, there is almost no limitation on the right of private employers to adopt drug- and alcohol-testing policies for their workers. However, public employers and contractors are more limited by law and judicial decisions.
A private employer should only implement a drug-testing policy after careful consideration of many factors including, but not limited to:
- Applicable statutes and regulations.
- Contract or insurance requirements.
- The need to combat some perceived problem with substance abuse among workers.
For example, drug testing may be mandated for some types of employees, as is the case with workers subject to U.S. Department of Transportation mandatory testing guidelines. Similarly, some federal contracts and grants may require employers to adopt drug-free workplace policies and possibly even to provide for drug-testing of employees. Other employers may be under no legal obligation to do testing, but feel such testing is necessary due to reports that some employees may be unsafe due to being under the influence of drugs or alcohol. Regardless of the reason for testing, all policies must be carefully drafted in light of all applicable legal issues.
Texas Transportation Commission
The Transportation Commission alcohol and drug free workplace regulations are located at 43 Tex. Admin. Code §§ 4.31 – 4.46. The regulations create an alcohol- and drug-free workplace and protect the health and safety of both the public and the Texas Department of Transportation’s employees. The department is committed to rehabilitating and restoring employees whose performance may be impaired by alcohol or drug abuse.
Prohibited Conduct
Department employees are prohibited from the following conduct:
Using alcohol or drugs, possessing an open container of an alcoholic beverage, or possessing a drug in the workplace.
The illegal sale, distribution, transportation, or manufacture of drugs, whether in the workplace or outside the workplace. This prohibition includes any violation of state and federal controlled substances acts.
Reporting to work, working, or operating a state vehicle while under the influence of lawfully prescribed or over-the-counter substances if the employee’s performance is impaired. An employee may appropriately use prescribed or over-the-counter medications if work performance is not impaired.
A supervisor may not allow an employee to continue to work if the supervisor has actual knowledge that the employee in the workplace is using alcohol or drugs in the workplace, possesses an open container of an alcoholic beverage in the workplace, or possesses a drug in the workplace.
Drug and Alcohol Testing
Employees must be provided with written notification before being required to submit to an alcohol or drug testing.
Pre-Employment Testing
A final applicant must pass a drug test before being hired for a position that involves driving for the department. 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.
Test Administration
An alcohol test should be administered as soon as possible and preferably within two hours after the decision to test was made. If the test is not administered within two hours, the substance control officer will record why the test was not administered until later. An alcohol test may not be administered after more than eight hours after the decision to test was made.
A drug test should be administered as soon as possible. A drug test may not be administered more than 32 hours after the decision to test was made.
The Texas Transportation Commission and state law provide information regarding drug and alcohol testing, refusal to test, administrative actions, mandatory referral, mandatory treatment, confidentiality protocols, and more.
Reporting Procedures
Employers must submit the report within 10 days of receiving notice of any of the following:
A valid positive result on an alcohol or drug test performed and whether the specimen producing the result was a dilute specimen. A dilute specimen contains creatinine and specific gravity values that are lower than expected for human urine.
A refusal to provide a specimen for an alcohol or drug test.
An adulterated specimen or substituted specimen on an alcohol or drug test performed. An adulterated specimen contains a substance that is not expected to be present in human urine or contains a substance expected to be present but is at a concentration so high that it is inconsistent with human urine. A substituted specimen contains creatinine and specific gravity values that are so diminished that they are inconsistent with human urine.
Unless the report is for a refusal to submit a sample, employers must also attach a legible copy of either the Federal Drug Testing, Custody and Control Form, the U.S. Department of Transportation (DOT) Alcohol Testing Form, or the Medical Review Officer’s or Breath Alcohol Technician’s report of a positive, dilute, adulterated, or substituted alcohol or drug test.
When a valid positive result is obtained on an owner-operator, that owner-operator is responsible for submission of the Report of Valid Positive Drug or Alcohol test to the department.
A Medical Review Officer, Breath Alcohol Technician, laboratory, consortium, or other individuals may submit a Report of Valid Positive Drug or Alcohol Test to the department. Reports by laboratories or other individuals will only be entered in the department’s database when verified by the Medical Review Officer or Breath Alcohol Technician.
Test Validity
A dilute positive drug test is a valid positive result. A dilute negative drug test is not a valid positive test. A positive drug test from a recollection is a valid positive test.
Confidentiality Requirements
Information regarding Reports of Valid Positive Drug or Alcohol Tests is confidential and only subject to release as provided by law. Specifically, the Texas Department of License Records may provide such information that relates to a holder of a commercial driver’s license under to the holder, the holder’s current employer, or a person acting on behalf of the employer if the Department of License Records receives the holder’s specific written consent to the release of information.
A request must also be submitted to the Department of Public Safety on a form provided on the department’s website. The request form must be mailed or faxed as previously detailed.
Note: A residential child-care facility is required to pay any fee or cost associated with performing the drug test for an employee.
