Clarifications and Corrections

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 9 of the Implementation Guidelines.

State Court Reverses Arbitration Award

   A bus repairman for the Southwest Ohio Regional Transit Authority (SORTA) was fired for testing positive for marijuana on a random drug test. The employee filed a grievance which led to arbitration. The arbitrator ordered reinstatement of the employee based on the transit authority’s failure to consider “mitigating factors”, specifically the employee’s otherwise clean 18-year work record. The reinstatement was approved by a state trial court.
   On December 10, 1999, the Ohio First District Court of Appeals reversed the earlier court decision.
   The court ruled that “the duty of common carriers to exercise the highest degree of care consistent with the practical operation of the line, to ensure the safety of their passengers and the rest of the traveling public is a valid, compelling and clearly established public policy.” In this case, the court explained, reinstatement of the safety-sensitive employee “would violate the explicit, well-defined, and dominant public policy to ensure the safety of the passengers of common carriers, and the general public by suppressing illegal drug use among transportation employees.” The ruling can be found in SORTA v. Amalgamated Transit Union Local 627, Docket No. C-980974, 1999 WL 1127293.
   This ruling is consistent with language presented in the preamble to 49 CFR Part 40, page 7354 of the Federal Register published on February 15, 1994.
   The preamble clearly states that “no decision by an employer, employee organization, or individual or group appointed by those or other parties [i.e., arbitrator], can have the effect of excusing non-compliance by an employer with a provision of a DOT safety regulation.” The preamble goes on to explain that, if a violation of DOT rules occurs, the consequences set forth by the DOT rule must be followed.
   Thus, an employee who tests positive or refuses a test must, at a minimum, be removed from a safety-sensitive function. If the employer has a second chance policy and allows the employee to return to work, the employee cannot be reinstated into a safety-sensitive position, until and unless, the return-to-duty requirements of the regulation are met.

Specimen Adulteration Illegal in SC

   Act 65 was recently signed into law in South Carolina. The Act outlaws efforts to obstruct or interfere with alcohol and/or drug tests. Violations of the Act include selling or possessing adulterants, substituting a specimen, and spiking a specimen. The Act also outlaws the advertising and/or selling of substitute specimens and spiking devices.
   Offenders face penalties including a fine of up to $5000, and imprisonment of up to three years for a first offense, and a felony conviction of up to five years in prison, and a fine of up to $10,000 for a second or subsequent offense.

FTA Requests Notification

   In a May 17, 1999, Dear Colleague letter, the FTA Administrator reminded recipients of their obligation to immediately notify FTA of significant litigation that may affect the Federal transit program or individual FTA-assisted projects. This letter was in response to several court cases that challenged various aspects of the FTA drug and alcohol testing regulations (see Updates Issue 11, Page 2), wherein the FTA was not notified.
   Early notification of significant litigation provides FTA with more options and opportunities to assist in the defense of FTA programs and projects. Even if FTA does not participate directly in the litigation, FTA may be able to provide background information and other technical assistance.
   FTA need not be notified of routine personnel matters or minor accidents, but should be notified once it becomes clear that an FTA program or regulation is at issue.
   To notify FTA of significant pending litigating you should contact the appropriate FTA regional counsel or the Office of the Chief Counsel at (202) 366-4063.