Issue 22, Pg 2 - FTA Drug And Alcohol Regulation Updates

FTA Drug and Alcohol Regulation Updates
Issue 22, page 2

Clarifications & Corrections

Where To Find?.....

49 CFR Part 655, Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations

August 9, 2001
Federal Register Vol. 66
Pages 41996 - 42036

Notice of Interpretation:
April 22, 2002 Federal Register Vol. 67, Pages 19615-19616 Primary Topic: FTAA/USCG regulation applicability to ferry boats.

Revised:
December 19, 2000 Federal Register Vol. 65, Pages 79462-79579. Primary Topic: Procedures for Transportation Workplace Drug and Alcohol Testing Program Revised Final Rule (49 CFR Part 40)

Technical Amendments:
August 1, 2001 Federal Register Vol. 66 Pages 41943-41955 Primary Topic: Clarifications and Collections to Part 40; Common Preamble to Modal Rules

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

DOT Provides Sample Release of Information Form

All employers covered under the DOT drug and alcohol testing regulations are required to obtain consent from each applicant for a safety-sensitive position to obtain test results from his/her previous DOT-covered employers for the previous two years (49 CFR Part 40.25). To facilitate this process the DOT has developed and published a standardized form to be used for this purpose. A copy of this form in its entirety is provided on page 3 of this newsletter. In addition, the sample release form is posted on the DOT Office of Drug and Alcohol Policy and Compliance (ODAPC) website and can be downloaded at http://www.dot.gov/ost/dapc/. Click on Program Guidance material, then on Sample Release of information form under General Information.

FTA Funded Ferry Boat Operators Coverage Clarified

On April 22, 2002, FTA published a notice of interpretation in the Federal Register (Volume 67, Number 77, Pages 19615-19616) that changed the applicability of the FTA drug and alcohol testing regulations to FTA funded ferry boat operators. Previously, ferry boat operators were required to comply with both the FTA and the U. S. Coast Guard (USCG) regulations. Even though the rules are similar, there is enough difference that made compliance difficult and confusing. Consequently, an interpretation was made that considers FTA funded ferry operations that comply with the relevant USCG drug and alcohol testing regulations (46 CR Part 4 and 16, and 33 CFR Part 95) to be in concurrent compliance with the FTA drug testing requirements set forth in 49 CFR Part 655. Since the USCG does not have a random alcohol testing provision that is similar to FTAs, the ferry boat operators, however, are still required to comply with FTA’s random alcohol testing requirements defined in §655.45.

If a ferry boat operator fails to be in compliance with the USCG testing regulations or the FTA random alcohol testing regulations, the operator will be deemed to be in noncompliance of 49 CFR Part 655 and may have its FTA funding suspended. The employee will also be subject to FTA consequences including removal from duty and SAP referral for rule violations (e.g. a test refusal, verified positive drug test result, or a confirmed alcohol test result of 0.04 or greater).

This interpretation applies only to the FTA drug and alcohol testing regulations and does not waive any other regulatory authority that FTA has over ferry boat operators that receive FTA funding.

Testing At End of Shift

FTA has consistently stated that an employee must remain subject to random testing any time during his or her work shift, including just prior to the shift end, as long as the employer has provided prior notification. However, in a Letter of Interpretation dated March 26, 2002 and addressed to the Amalgamated Transit Union, FTA Chief Counsel, William P. Sears, stated that even though the statutory requirement to conduct random drug and alcohol testing is not subject to collective bargaining, the employer has limited discretion regarding the scheduling of random tests. Therefore, “union and management are not precluded from negotiating a process for employees who provide advance, verifiable notice of scheduled medical or childcare commitments, to be tested no later than three hours before the shift ends.” Mr. Sears went on to clarify, however, that any negotiated process cannot excuse a covered employee from random testing once selected, nor should it extend to an employee who has not provided advance, verifiable notice of a previously scheduled commitment to the employer. For this and other letters of interpretation go to www.fta.dot.gov/library/legal.