FTA Drug and Alcohol Regulation Updates
Issue 11, page 2

Recent Court Actions

Where To Find?.....

49 CFR Part 653, Prevention of Prohibited Drug Use in Transit Operations
February 15, 1994
Federal Register Vol. 59
Pages 7572-7611

Amended:
August 2, 1995
Federal Register Vol. 60
Pages 39618-39620
Primary Topic:  Exemption of Volunteers and Post-Accident Testing Provision

December 8, 1998
Federal Register Vol. 63
Pages 61612-67613
Primary Topic:  Use of Law Enforcement Post-Accident Test Results

December 14, 1998
Federal Register Vol. 63
Pages 68818-68819
Primary Topic:  Random Drug Testing Rate at 50%

January 5, 1999
Federal Register Vol. 64
Pages 425-427
Primary Topic:  Safety-sensitive Maintenance Functions

Technical Corrections:
March 6, 1995
Federal Register Vol. 60
Pages 12296-12300
Primary Topic:  Corrections and Clarifications

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

Two Recent Court Decisions Concern DOT/FTA Drug and Alcohol Testing Regulations

FTA has learned of two recent decisions, one issued by a Federal appeals court in San Francisco, and the other by a federal district court in Philadelphia, implicating FTA testing regulations.  Each case involves FTA’s drug- and alcohol-testing regulations (49 CFR Parts 653 and 654) as applied to certain employees.  Both courts decided that the employees should have an opportunity to prove their cases.

The California case, Gonzalez v. Metropolitan Transportation Authority, was filed in April 1996 on behalf of a radio dispatcher and instructor employed by LACMTA.  The district court dismissed the complaint, which challenged the grantee’s policy, and the plaintiffs appealed.  On April 14, 1999, a unanimous panel of the 9th Circuit reversed and sent the case back to the trial court to review the designation of dispatchers as safety-sensitive workers.  The appeals court stated:  “We do not know, from the record we have, whether the employees at issue would pose a substantial immediate threat to public safety if impaired by drugs or alcohol, or whether the procedure for testing them would be reasonably effective for finding out if they are impaired, or whether the tests as performed were an undue invasion of their privacy.  Facts might be proved under the complaint that would entitle plaintiffs to relief.”  The employees challenging the testing have the burden of proving the case.  Until this matter is ultimately resolved, FTA grantees, subrecipients (and their covered contractors) must continue to implement FTA’s drug and testing regulations, including those affecting dispatchers.

The second case, Wilson v. SEPTA and TWU Philadelphia Local 234, was filed in Federal district court in Philadelphia by a bus operator who was fired after twice testing positive for alcohol.  He alleges that his firing is discrimination under the Americans with Disabilities Act (ADA).  SEPTA moved to dismiss the complaint, arguing that the plaintiff was not a qualified individual with a disability at the time SEPTA discharged him.  In a ruling dated January 26, 1999, the court declined to dismiss the complaint.  The court found that the employee met the definition of “disabled” for establishing a prima facie case of discrimination under the ADA in connection with his discharge from SEPTA.  The ultimate issue of whether the firing was disability discrimination is yet to be determined by the court.

Because FTA has consistently held that the determination to retain or discharge an employee for having tested positive is a local decision, this opinion is not viewed as establishing a conflict between the ADA and FTA’s drug and alcohol testing rule.

Audit Questions Available On Web

In response to several requests from the transit industry, FTA has posted the questions used in the FTA drug and alcohol testing program audits on the internet.  This information is released with the intent of assisting transit systems with their efforts to develop and maintain compliant programs.  The address where the audit questions can be found is:  http://transit-safety.volpe.dot.gov/audit.htm or the questions can be obtained from the FTA homepage.

From the FTA homepage (http://www.fta.dot.gov/):

Ž      click on “Safety and Security” then;
Ž      click on “Transit Safety” then;
Ž      click on “Drug and Alcohol Testing Program”; then
Ž      click on “Program Review Checklist”.

 

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