School Bus Driver Tests for Drugs or Alcohol is Required

Most State of Arizona school districts (but not all) provide student transportation.  In order to provide such transportation school districts typically employ school bus drivers.  After numerous transportation accidents, Congress passed the Omnibus Transpiration Employee Testing Act of 1991 which requires controlled substance (or “drug”) testing of school bus drivers.  In 1994, the Federal Department of Transportation added alcohol testing for school bus drivers to its regulations.   Depending on the use of the school bus, the school districts may be subject to various Federal and State of Arizona regulations.  This article seeks to focus primarily on the drug and alcohol testing protocols required of school districts that provide student transportation on school buses to and from school.  Please note that the regulations applicable to any individual school bus driver situation may vary widely and are complex, it is strongly recommended that a school district contact legal counsel regarding any specific situation.

The Arizona Administrative Code (or “A.A.C.”) outlines the minimum standards the State of Arizona imposes on the operation of school buses in section R13-13-101 et. seq.    A.A.C. R13-13-102(C) directly addresses school district bus driver controlled substances and alcohol testing requirements.  State of Arizona statutory requirements for school bus drivers can be found in Arizona Revised Statues (or “A.R.S.”) §28-3228.  A.R.S. §28-3228(C)(2) requires both controlled substance and alcohol testing of school district bus drivers.

Federal Department of Transportation regulations regarding controlled substance and alcohol testing can be found in the Code of Federal Regulations (or “CFR”).  The CFR, in 49 CFR §655.4, extends coverage to all individuals required to hold a Commercial Driver’s License (of “CDL”) to operate the vehicle (in this case a school bus).   The drug testing regulations found in 49 CFR §655.21 outline that school districts are required to test school district bus drivers for the presence of marijuana, cocaine, opiates, amphetamines, and phencyclidine.  As per the mandates of this section consumption of these drugs is prohibited at all times.  It is worthy of note that A.A.C. R13-13-102(C)(2) adds benzodiazepines, barbiturates, methadone, and propoxyphene to the list of drugs tested for.

Federally mandated alcohol testing is outlined in 49 CFR §655.31 which requires that school district bus drivers be prohibited from performing safety-sensitive functions while having a blood alcohol content of 0.04 or greater.   A “’safety-sensitive function’ is defined as any activity for which a school bus driver is on-duty except when the school bus driver is being compensated by an entity other than the employer.”  See A.A.C. R13-13-102(C)(1)(b)(v); 49 CFR §382.107.

Further, 49 CFR §655.33(a) prohibits a covered employee from using alcohol within four (4) hours prior to performing safety-sensitive functions.  Pursuant to this section, the school district is prohibited from permitting a school district bus driver to drive a school bus if it has actual knowledge that that the driver in question has used alcohol within four (4) hours of driving.

It is worthy of note that A.A.C. §R13-13-104(D)(12) prohibits a school district bus driver from operating a school bus if the driver in question is under the influence of any amount of alcohol or has consumed any alcohol within eight (8) hours of performing a safety-sensitive function.

Both State of Arizona and Federal regulations dictate that testing protocols for controlled substances and/or alcohol must include post-accident, reasonable suspicion, random, and return to duty/follow-up testing.  School districts are permitted to perform pre-employment controlled substance and alcohol testing as well.

Once a school district bus driver tests positive for controlled substances or alcohol, or refuses a test, the school district must immediately remove the driver in question from safety-sensitive functions and give the driver a list of substance abuse professionals (or “SAPs”) acceptable to the school district and readily available to the driver.  Instead of a list of SAPs, the school district can provide the name and number of a SAP network that can put the driver in contact with a qualified SAP.  In either case, the school district needs to be careful that the SAPs provided meet the criteria outlined by the Federal Department of Transportation in 49 CFR Part 40 Section 40.281.

A.A.C. R13-13-102(C)(6) requires the school district to immediately notify the State of Arizona Department of Public Safety (of “DPS”) by telephone of any and all school district bus driver positive controlled substance or alcohol tests.   The school district is then required to submit a copy of the written report from the entity which conducted the testing to DPS within five (5) days of receipt of the results of the test.

Further, A.A.C. R13-13-102(C)(5) requires that the school district report any and all school bus driver negative controlled substance or alcohol tests  within thirty (30) days of the date of testing or within twelve (12) months of the school district bus driver’s previous test, whichever is sooner.

Please note that the school district is not required to provide SAP evaluation services nor any substance abuse treatment or education to a driver who has violated an applicable controlled substance or alcohol regulation.  The school district is only required to provide a reference to a qualified SAP (as outlined above).

Further, a school district is not required to terminate a bus driver who violates a controlled substance or alcohol regulation but is not legally prohibited from doing so as long as such action is within the bounds of applicable State of Arizona law and/or regulations, Federal law and/or regulations, and school district policies.   However, a school district bus driver who fails a required controlled substance or alcohol test  (or who refuses to test) cannot perform a safety-sensitive function for the school district again until that driver successfully completes a SAP return-to-duty process.

If the school district determines to move forward with employee discipline or termination it will be required to conform to applicable legal standards including the provision of Due Process in accordance with applicable statues and/or school district policies.  If the school district bus driver is ultimately terminated, A.A.C. R13-13-102(L) requires the school district to provide written notice to DPS within thirty (30) days of the termination or leaving (if a settlement short of an actual termination is reached).

It is strongly recommended that a school district contemplating employee discipline with regards to a school district bus driver controlled substance or alcohol violation contact legal counsel to seek guidance before implementing employee disciplinary measures.  The applicable State of Arizona and Federal rules and regulations applicable can vary depending on the circumstances.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding School Bus Driver Tests for Drugs or Alcohol, or any other estate planning matters, please feel free to contact at  480.461.5300, log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.