49 C.F.R. § 219.107

Consequences of refusal

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(a) A regulated employee who refuses to provide a breath or body fluid specimen or specimens when required to by the railroad under a provision of this part must be withdrawn from regulated service for a period of nine (9) months. Per the requirements of part 40 of this title, a regulated employee who provides an adulterated or substituted specimen is deemed to have refused to provide the required specimen and must be withdrawn from regulated service in accordance with this section.

(b) Notice. Before or upon withdrawing a regulated employee from regulated service under this section, a railroad must provide written notice to the employee of the reason for this action, and the procedures described in § 219.104(c) apply. A railroad may provide a regulated employee with an initial verbal notice so long as it provides a follow-up written notice as soon as possible.

(c) The withdrawal required by this section applies only to an employee's performance of regulated service for any railroad with notice of such withdrawal. During the period of withdrawal, a railroad with notice of such withdrawal must not authorize or permit the employee to perform any regulated service for the railroad.

(d) The requirement of withdrawal for nine (9) months does not limit any discretion on the part of the railroad to impose additional sanctions for the same or related conduct.

(e) Upon the expiration of the nine month period described in this section, a railroad may permit an employee to return to regulated service only under the conditions specified in § 219.104(d), and the regulated employee must be subject to return-to-duty and follow-up tests, as provided by that section.

[81 FR 37930, June 10, 2016]

Notes of Decisions

Cited in 3 cases, 2000–2010 · leading case: Jackson v. Broth. Relief & Compen. Fund, 779 N.W.2d 589 (Neb. 2010).

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Jackson v. Broth. Relief & Compen. Fund, 779 N.W.2d 589 (Neb. 2010). · cites it 2× “The letter also stated that the suspension was "in accordance with 49 CFR Part 219.107," which provides that "[a]n employee who refuses to provide breath or a body fluid specimen or specimens when required to by the railroad under a mandatory provision of this part must be…”

Smeltzer v. Slater, 93 F. Supp. 2d 1095 (C.D. Cal. 2000). · cites it 2× “Even though 49 C.F.R. § 219.107 (a) provides that an employee who refuses to provide a sample 3 must be disqualified from performing certain safety-sensitive duties, the Secretary’s regulation does not require that the employee be terminated.”

BNSF Ry. Co. v. Bhd. of Locomotive Engineers & Trainmen, 524 F. Supp. 2d 818 (N.D. Tex. 2007). · cites it 3× “49 C.F.R. § 219.107 (a). The requirement of disqualification for nine months does not limit discretion on the part of the railroad to impose additional sanctions for the same conduct.”

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