Texas does not have a statute or regulation that specifically addresses workplace drug or alcohol testing by private employers. As a result, most employers may create their own employment policies, programs, procedures, or rules on workplace testing.
However, transportation employers in Texas must comply with certain state and federal laws. This Employment Law Summary provides a general overview of the drug testing laws that apply to Texas employers in certain transportation industries.
TEXAS LAW FOR TRANSPORTATION EMPLOYERS
Texas employers in transportation-related industries that are subject to the licensing requirements of the Texas Department of Licensing and Regulation (TDLR), such as vehicle storage facilities and towing companies, must implement the TDLR Model Drug Testing Policy or an equivalent that is at least as strict. If an employer uses a different policy, it must describe to the TDLR how the independent policy is as strict as the model.
Under the TDLR model, employers must conduct drug testing at the following times:
• Pre-employment drug screening – All job applicants who have received a conditional offer of employment must take a drug test before receiving a final offer.
• Annually drug screening – All employees must complete at least one scheduled drug test every 12 months, beginning on the date of their initial license or renewal.
• Random Drug Testing – Annual random urine drug testing of at least 25 percent of employees is required. Random testing must occur between 15 minutes and two hours after the employee is notified that he or she will be tested.
Before a drug test is administered, employees and applicants must sign a consent form authorizing the test and permitting the release of the test results to a designated medical review officer (MRO), the employer and the TDLR. If an employee or applicant fails or refuses to sign the consent form or submit to testing in a timely manner, an employer may terminate or refuse to hire the individual.
5 Panel Drug Test meets federal drug testing guidelines
All drug testing must be done using split-specimen urinalysis, and all urine specimens must be collected by a laboratory that is certified and monitored by the federal Department of Health and Human Services (HHS). Tests must be conducted for the following substances:
• Amphetamines; and
• Phencyclidine (PCP).
A commonly used drug test is the 5-Panel drug test which will discover the aforementioned drugs. After a sample is provided, an MRO will review, report and store any testing information from the laboratory. Following a positive test result, the MRO will notify the employee or applicant and the employer. Once an employer receives the notification of a positive result, the employer must notify the TDLR within three days. The employee or applicant who tested positive then has 72 hours to request a confirmation test by another certified laboratory. The employee or applicant must pay for the confirmation test and any return-to-duty or follow-up testing.
If an applicant’s confirmation test is positive, the employer may not employ the individual in the type of work that is subject to TDLR licensing. If an employee’s confirmation test is positive, the employee must not perform any work that is subject to TDLR licensing and may be subject to disciplinary action up to and including termination.
No disciplinary action may be taken against employees who voluntarily identify themselves as drug users, obtain counseling and rehabilitation and comply with return to duty and follow-up drug testing.
FEDERAL ALCOHOL AND DRUG TESTING RULES
The FMCSA’s alcohol and drug testing rules apply to all employees who operate a commercial motor vehicle in commerce in any state and their employers. For more information on the FMCSA’s alcohol and drug testing regulations, visit the FMCSA website.
Please contact On The Go Mobile Phlebotomy for more information on drug testing laws in Texas.
Texas Department of Licensing and Regulation website
In addition to state law, federal regulations apply to certain employers in the commercial transportation industry. More information is available here.