What could be wrong with the Federal Railroad Administration (FRA) proposing to mandate random drug and alcohol testing for all employees that directly impact railroad safety within the United States regardless of where the employer is domiciled? Aren’t all employers involved in US rail operations in favor of mandates that protect the safety of their employees?
According to representatives of Canadian railroads at the FRA’s Public Hearing on February 14, 2002, attended by DATIA, plenty could be wrong with the FRA’s proposal and emotions are mixed concerning proposed new mandates to improve safety on US railroads. While the proposal also affects Mexican railroads, no comments were submitted by Mexican entities.
Currently, FRA’s CFR 40 Part 219 regulation on the control of alcohol and drug use applies to all railroads that operate on the general railroad system of transportation in the United States. However, Part 219 presently exempts certain operations by foreign railroads and certain small employers of foreign-based railroads from subparts of the regulations including pre-employment testing and random testing. The FRA has proposed to narrow the scope of exemptions within CFR 49 Part 219 to require that foreign-based employers who affect the operations of railroads within the United States be required to meet the drug and alcohol testing requirements of CFR 49 Part 219
It seems the biggest problem with the FRA proposal involves its intention to mandate random testing for employees of foreign-based employers performing train or dispatching services in the US, which violates Canada’s Human Rights Act. According to Michael Huart of Canadian National (CN), which operates the largest rail network in Canada and the only transcontinental network in North America, “Of significance is that the CN policy for Canadian operations does not include random testing. This is entirely due to the Canadian legal climate and specifically the Canadian Human Rights Act, which has in the past ruled that random drug testing is prohibited, even for safety sensitive positions. Furthermore, random drug testing has been historically prohibited under Canadian railway labor arbitration jurisprudence”. All representatives at the public hearing reiterated this information.
In addition, each representative of Canadian railroads at the public hearing indicated that if the FRA proposal was released as a final regulation, the Canadian railroads would incur substantial expenses to defend Human Rights challenges in Canada. The Human Rights Commission is currently scheduled to hear similar challenges to the Federal Motor Carrier Safety Administration regulations imposed on Canadian drivers that enter into the US. Further complications in implementing the FRA regulations could also result in decreased service and increased delays in rail operations between US and Canada, stated Don Watts, Director of Regulatory Affairs for Canadian National.
Support and opposition to whether the additional drug and alcohol testing requirements for employees of Canadian based employers operating in the US are needed was mixed with 25% of the representatives supportive of the intention of the proposal and the other 75% questioning the need for increased requirements. Representatives from the United Transportation Union, Canadian Pacific Railway, and the Brotherhood of Locomotive Engineers indicated that not data exists to show a compelling safety reason for random and post-accident testing and that there is no cost-benefit to the increased requirements.
Probably the most important item brought up during the public hearing was that if the FRA wants to move forward on imposing stricter safety requirements in the area of drug and alcohol testing on foreign based employees who operate in the US, that this should not be done via FRA regulations. It was suggested that the FRA look at how the Federal Aviation Administration works with and relies on international conventions to form the aviation standards of non-US based airlines. Representatives of the Canadian railroads urged the FRA to work with the NAFTA (North American Foreign Trade Act) Land Transport Standards Subcommittee and Transport Canada (develops and administers policies, regulations, and programs for a safe, efficient, and environmentally friendly transportation system) to establish guidelines and standards that will meet both the FRA’s goals for increased safety and Canada’s human rights laws.
As the meeting came to a close, the FRA reiterated that both the US and Canada are interested in achieving the highest level of safety and reciprocity of standards. It is now the tough battle of resolving the reciprocity and achieving a resolution. DATIA, as stated in our comments to the FRA, are supportive of initiatives that will increase the safety of rail operations within the US. With an increased knowledge of the barriers to the FRA regulations within Canada, it appears that the FRA’s goals will not be met though FRA regulations but rather through a concerted effort to resolve this with the Canadian and Mexican governments and international conventions. DATIA will continue to follow this issue and keep our members informed. To view comments and testimony submitted to the FRA, visit
http://dms.dot.gov/search/ and search for docket number 11068.
