Q & A

Q: Under 49 CFR Part 655, may company officials other than the employees supervisor make a reasonable suspicion determination?

A: Yes. Under 655.43 (b) company officials are included as persons who may make reasonable suspicion determinations as long as they have been trained in detecting the signs and symptoms of drug use and alcohol misuse and have made the required observation.

The information presented on this page should be used to update Chapter 2 of the Implementation Guidelines.

Part 655 Summary (Continued)

Maintenance Contractors of Recipients Serving Populations of 200,000 or Less Are Exempt
The performance of maintenance functions has always been considered safety-sensitive under FTA regulations. Likewise, maintenance contractors that “stand in the shoes” of an FTA recipient to perform safety-sensitive functions must have a compliant drug and alcohol testing program unless they are a rural operator that receives Section 5311 funding. In 1999, the drug and alcohol rules were changed to clarify that safety-sensitive maintenance functions included engine and major component overhauls and rebuilds.

Since publication of the rule change, many transit agencies had struggled to comply with the rule and be came very vocal regarding the burden and cost associated with finding maintenance contractors willing to comply with the regulations. These concerns were expressed in response to the Part 655 NPRM. Balancing the concern for safety with the practical difficulties experienced by many transit agencies, language was included in the regulation (§655.4) that exempts maintenance contractors that perform maintenance functions for FTA recipients of Section 5309 and 5307 funding that serve populations of 200,000 or less (as delineated by the FTA apportionate definition) and Section 5311 rural funding recipients.

Pre-employment Testing Modifications
Previously, FTA required that employers have negative test results for applicants prior to their hire. Part 655.41(a) modified the pre-employment testing requirement to indicate that the employer must receive a negative drug test result for each employee prior to the first performance assignment of safety-sensitive functions. Thus, an employer that chooses to hire

an applicant and assign non-safety-sensitive duties (i.e., training) while awaiting test results may do so. An employer may not transfer an employee from a non-safety-sensitive position to a safety-sensitive position until a verified negative test result is received (§655.41(b)).
FTA also added a provision to the final rule (§655.41(d)) that requires a pre-employment test anytime a covered employee or applicant has not performed a safety-sensitive function within a 90-day period, if that person was also not in a random selection pool during the timeframe. The reason for the absence is not a consideration. Thus, employees that are off duty for sickness, vacation, jury duty, leaves of absence, worker’s compensation, Family Medical Leave, or any other purpose that extends to 90 days or more is subject to a test if they were not included in the testing pool. Employees should be taken out of the pool if it is known that the individual will not perform a safety-sensitive duty during the testing period.
Similarly, any applicant that is tested, but is not assigned safety-sensitive duties within a 90-day timeframe will have to be retested prior to their first performance of safety-sensitive duties.
The rule also states (§655.41(a)(2)) that an applicant or covered worker that has previously failed a pre-employment drug test must present to the employer proof of having successfully completed a return-to-duty process prior to performing safety-sensitive job duties.
This section of the regulation also (§655.42) clarifies that pre-employment alcohol tests are allowed, but are not required under the regulation. If an employer chooses to conduct pre-employment alcohol tests, the employer must follow the testing procedures defined in 49 CFR Part 40.

Governing Board Approval Clarified
The preamble to the final rule also states that polices must be approved by the employer’s governing board. In the event the employer has no governing board or the governing board does not have approval authority, the highest-ranking official with authority to approve the policy can do so.