What are the Regulations Covering Maintenance of Way (MOW) Employees?

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5 September 2023

What are the Regulations Covering Maintenance of Way (MOW) Employees?

Maintenance-of-way (MOW) employees include any worker who is involved in the construction or maintenance of a railroad or related facilities. The classification consists of those working with equipment on access roadways, and those responsible for the installation and upkeep of technology with associated communication, monitoring, tracking and crossing systems. Regulations about the use of drugs and alcohol by MOW employees vary significantly between Canada and the United States.

Regulations About MOW Workers in the United States

In the United States, regulations about MOW workers are subject to the Code of Federal Regulations (CFR Part 219) under the auspices of the Department of Transportation (DOT) and the Federal Railroad Administration (FRA). (Learn more in 8 Things Employers Should Know About DOT Drug and Alcohol Testing). In 2008, congress acknowledged a substance abuse problem among MOW workers, and through its responsibility to the Rail Safety Improvement Act of 2008, expanded drug and alcohol regulations to address the matter. The scope of the regulation was enhanced in 2017, affecting all MOW employees, volunteers, probationary employees and contractors. The regulations provide an enhanced range of testing including, pre-employment testing, random testing, reasonable suspicion testing (learn more about this particular type of testing in What Is Considered Reasonable Suspicion? A Look at the Criteria for With Cause Drug Testing in the Workplace), reasonable cause testing, post-incident testing, return to duty testing, follow-up testing and physical abilities testing (PAT), previously only required post-incident. (Learn more in What is 49 CFR Part 40?).

Regulations About MOW Workers In Canada

In Canada, the framework for regulation is governed by general guidelines offered by the Railways Safety Act through Transport Canada. MOW workers are subject to specific contractual obligations of their employer. CN, Canada’s largest rail employer, has implemented a policy for safety-sensitive positions including MOW workers. The policy states, “All employees are required to report and remain fit for duty, free of the negative effects of alcohol and other drugs.”

In particular, MOW employees are subject to both pre-placement and periodic medical assessments to gauge their fitness to work. Additional reasonable cause testing may be conducted when the use of alcohol or drugs is suspected related to the violation of company rules or the demonstration of poor judgement. Workers diagnosed with a substance abuse problem are monitored more closely to ensure their ability to perform and may be subject to on-going testing as part of their employment contract.

Employees who operate railway vehicles who have lost their driving privileges due to impaired driving charges while not on-duty are required to report the issue to their supervisor. A medical evaluation will be conducted to determine whether the employee has a substance abuse disorder. Policy violations by employees can result in disciplinary and corrective measures, including dismissal. Contractors who violate the policy are in breach of their contract.

Employer Responsibility To Ensure Employees Comply With Federal Regulations

All contractors and subcontractors must ensure their employees performing MOW duties comply with federal regulations. MOW employees who hold a commercial driver’s license are also subject to drug testing and alcohol testingunder federal or corporate authority.

Each railway must maintain written documentation that describes the decisions leading to reasonable cause testing. Besides a train accident or incident, factors leading to this type of testing include a variety of employee rule violations. Such violations may include occupancy of a track that was not approved, failure to clear the track, passing a restrictive signal, failure to protect on-track equipment, excessive speed, failure to align a switch, failure of an operator that results in a collision with a maintenance machine, and failure of a flagman to notify employees of an approaching train or equipment, among others.

All regulated employees involved in an incident described in CFR part 219 must provide urine and blood samples for toxicological testing. This testing can also involve employees who were not present for the accident but whose actions affected the cause or severity.

Moreover, all crew assigned to trains or other track related equipment involved in a qualifying incident will be required to undergo post-accident testing irrespective of fault. If there is reasonable suspicion to believe an employee is in violation of regulations regarding the use of alcohol, the railway is obliged to submit the employee to a breath test using an evidential breath testing device. Railway officials must make every effort to provide specimens for testing within a reasonable amount of time, typically within four hours of a particular incident. If a railway is unable to provide a specimen of any employee due to non-cooperation or any other reason, the FRA must be notified immediately, and a report prepared as per guidelines provided.

Contractors required to establish and administer random drug and alcohol testing have several options including, implementing a CFR part 219 program, contracting with a 3rd party to administer a CFR part 219 program or ensure the participation of their MOW workers within the program offered by the railway.

Exemptions for testing are permitted for “small entity” railroads of 15 regulated employees or less. These small entity railroads must not be working jointly with larger operations. The rationale for this exemption is these workers are less likely to be involved in drug or alcohol-related accidents. Contractors with 20 employees or less do not have to implement a CFR part 219 program if they are working for a small railroad as defined by FRA.

All US employers of MOW workers, whether they be employees, contractors or subcontractors should be familiar with CFR part 219 and the related procedures. MOW workers can find more information, related professional development and outreach programs at https://www.fra.dot.gov.