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FTA Drug And Alcohol Regulation Updates |
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Winter 2007 |
Issue 33 | ||
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Introduction.... The Federal Transit Administration (FTA) published its revised rule on prohibited drug use and the prevention of alcohol misuse (49 CFR Part 655) on August 1, 2001. The FTA published the revised
Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit to provide a comprehensive overview of the regulations.
Since the Guidelines were published, there have been numerous amendments, interpretations, and clarifications to the Drug and Alcohol testing procedures and program requirements.
This publication is being provided to update the Guidelines and inform your transit system of these changes. This Update is the thirty-third in a series.
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Random Testing Rate for Drugs Lowered to 25%
The transit industry's random drug testing positive rate for 2005 was 0.792. This rate has been declining every year since 2002 and is the third consecutive year where the positive rate has been below one percent (1%). The industry's random alcohol testing violation rate for 2005 was stable at 0.115. The information used to determine these rates is drawn from the drug and alcohol Management Information System (MIS) reports provided annually by all covered employers. These results are of major significance to the transit industry because the random testing rates for employers covered under the Federal Transit Administration's (FTA) drug and alcohol testing program is based on the industry-wide drug positive rate and the alcohol violation rate. Since the alcohol random violation rate has remained well below the 0.5 minimum threshold established in §655.45(d) for at least two consecutive years, the alcohol random testing rate for 2007 will remain at ten percent (10%), the lowest rate allowed by the regulation. Since the drug positive rate has been below one percent (1.0%) for at least two consecutive years, the drug random testing rate will be lowered to twenty-five percent (25%) in 2007. The notice was published in the Federal Register (Volume 72, No. 5, Pages 1057-1058) on January 9, 2007. The twenty-five percent (25%) rate should be considered the minimum and it is the option of the transit employer to lower the rate. Transit agencies should take into consideration all the implications of the rate change on their testing program before making a change. Factors to consider include the agency's own positive test rate, volume of tests needed to procure quality testing services, and size of the pool. Transit employers that have twelve or fewer employees are encouraged to test at a rate higher than the twenty-five percent (25%) rate to ensure that at least one test is conducted per quarter and to ensure that enough tests are performed to avoid revealing test results for any individual due to a limited number of testing incidents. Transit employer's need to change their policy statements if they choose to lower their minimum random drug testing rate to twenty-five percent (25%) and their current policy identifies their minimum random testing rate as fifty percent (50%). Employers that do not define a testing rate in their policy, but state that they test at the Federal minimum rate for drug and alcohol, do not need to make a change. With this change, the FTA joins the Federal Aviation Administration (FAA), Federal Railroad Administration (FRA) and the Pipeline & Hazardous Materials Safety Administration (PHMSA) in lowering the random drug testing rate to twenty-five percent (25%). The Federal Motor Carrier Safety Administration (FMCSA) and the United States Coast Guard (USCG) are maintaining their random drug testing rate at fifty percent (50%). Employers and Third Party Administrators (TPAs) subject to more than one DOT agency drug and alcohol testing rule may continue to combine covered employees into a single pool. However, employers and TPAs doing so must test at or above the highest minimum annual random testing rates established by the DOT agencies under whose jurisdiction they fall. Thus, transit covered employees that are in a testing pool with employees covered under the FMCSA must be selected for testing at the FMCSA rate of fifty percent (50%) for drugs and ten percent (10%) for alcohol. Transit covered employees that are in a pool by themselves or with other FTA covered employees, need only test at the twenty-five percent (25%) rate for drugs and ten percent (10%) for alcohol. If an employer has employees that conduct both FTA and FMCSA safety-sensitive duties, the employer must determine which modal administration regulated the majority (>50%) of the employee's safety-sensitive duties. Once determined, the employee must be subject to the random testing rate under the regulatory authority of the primary modal administration. If a transit employer or TPA has already performed a random selection for the first quarter/first month of 2007, they can test the employees in the selection and then adjust during the remaining testing periods in order to average out their annual random drug testing level to twenty-five percent (25%). Employers also have the option to perform a new random selection based on the reduced rate, excuse all of those untested on the previous list and cite the FTA rate change as the explanation. |
