Drug and Alcohol Testing

   

Q. Can you please clarify the requirements for a drug and alcohol testing program defined in the standard FTA clauses referencing 49 CFR 655 as it applies to Operational Services Contracts and FRA requirements as defined in 49 CFR 219? My question relates to FTA funded construction contracts. What governs a drug and alcohol testing program for construction contracts? A. Only those contractors performing a safety sensitive function as described by item number 4 of the definition of Safety Sensitive Function in 49 CFR 655.4 are required to have a drug and alcohol testing program. If you are in doubt concerning a specific contract we will have FTA review it for you.

Q. Does 49 CFR 650 only apply to contractors performing safety sensitive services or also to suppliers who provide materials or equipment used in the maintenance of revenue vehicles, i.e. brake pads, brake drums, engine rebuilds, etc.? A. The drug and alcohol testing requirements do not apply to suppliers of material or equipment used in the maintenance of revenue vehicles. Employees or contractors repairing, rebuilding, or overhauling a vehicle are included under the requirements, as well as anyone performing hands-on maintenance on the systems (rail, train control, etc.) but not someone in a factory that is manufacturing the parts or equipment.

Q. Please advise if an SAP, after his/her evaluation of an employee who tested positive for the presence of drugs, can refer the employee to a Marriage and Family Counselor for treatment rather than a Drug and Alcohol Counselor. Our employee Unions are complaining that after the SAP's evaluation, the SAP doesn't always refer the employee for drug and alcohol treatment but sometimes refers the employee to Marriage and Family Counseling. A. Although FTA's drug and alcohol regulations do not prescribe treatment recommendations of the SAP, it is reasonable for the SAP to recommend a counselor who is able to treat both the underlying issue and the substance abuse.

Q. The BPPM,* Appendix A, Clause 31 states "the drug and alcohol testing provisions apply to Operational Service Contracts." In Jan. 1999 FTA amended the definition of "maintaining a revenue service vehicle or equipment" under the safety-sensitive definition, to include persons who perform overhaul and rebuilding services of engines, parts, and vehicles. This not only seems a contradiction, but also seems extreme in the requirements for our maintenance contractors. I can't understand why a small business that repairs air conditioning units (for example) would need to submit to this required drug testing. FTA policy means that any part on a bus that gets rebuilt or overhauled by a contractor that this contractor must submit to the drug testing requirements. What really seems contradictory is the fact that the Bus Manufacturers themselves are not required to submit to this rule. This requirement is making it more difficult for us to obtain interested parties who want to bid on these non-safety repair bids. Can you please clarify the FTA's position on these concerns? A. The revised FTA Drug and Alcohol Regulation was published in the Federal Register on August 9, 2001. (66 FR 41996). Section 655.4 defines safety-sensitive function to include "maintaining [including repairs, overhaul and rebuilding] a revenue service vehicle or equipment used in revenue service. This amended definition was initially promulgated in January 1999. (64 FR 425). As noted in the preamble, the definition was amended to provide for fairness and the public's safety by eliminating the distinction between safety-sensitive employees that worked for a transit operator and those employed by other maintenance providers. FTA noted in the most recent final rule that it has developed a middle ground that helps to alleviate some of the problems associated with this issue. FTA has modified the definition of "maintenance" to permit maintenance contractors for 49 USC 5307, 5309, and 5311 recipients that are in areas with populations less than 200,000 and which contract out maintenance services to be exempt from drug and alcohol testing. Additional relief is provided in that maintenance providers that perform safety-sensitive functions on an ad hoc or one-time basis are also not required to comply with FTA's drug and alcohol provisions. (See 66 FR 41999). I can be reached at (202) 366-4911 should you have further questions. Bruce Walker, Attorney Advisor. __________ *The BPPM can be found on the Internet.

Q. What requirements are there for drug testing for vendors out of the country when purchasing rolling stock with Federal Funds? A. Guidance and contract language concerning the Drug and Alcohol Testing regulations may be found in the BPPM, Appendix A.1, Clause No. 31. The Drug and Alcohol provisions apply to Operational Service Contracts. These provisions do not apply to vendors from whom a grantee is purchasing rolling stock.

Q. What is FTA's current drug and alcohol policy? Do the requirements apply to repair contracts for any dollar amount or just if the repairs are over a certain dollar amount? Last information I have is from 1995, "FTA Interpretations," which said, "Contractors that perform less routine activities such as warranty, overhaul, component rebuilds, or rehabilitation work are not included" …in being required to have an FTA approved Drug & Alcohol Program. A. The FTA re-wrote the drug and alcohol rules on August 9, 2001. In the re-write, "maintenance contractors" were better defined. The rule now states: All 5311 transit agencies that contract maintenance services are excluded from the drug and alcohol testing rules. In addition, 5307 and 5309 recipients in an area less than 200,000 in population and which contract out maintenance services are excluded form the testing rules. Finally, maintenance services that are performed on an ad hoc, or one time basis are not subject to the rules.

Q. We are trying to confirm that the Drug and Alcohol Policy does not apply to bus procurements. And why is that? We also noted that the drug and alcohol testing requirements are not included in the APTA Bus Procurement Guidelines. A. The Drug and Alcohol Testing requirements as contained in FTA regulations 49 CFR Parts 653 and 654 do not apply to the procurement of new buses. The Best Practices Procurement Manual, Appendix A.1, contains guidance on this issue under Clause #31 - Drug and Alcohol Testing. The BPPM notes that these rules apply to "operational services contracts" where operators are performing a safety sensitive function. The rules do not apply to employees of vehicle manufacturers. You can access the CFR Parts 653 and 654 at the FTA website: www.gpoaccess.gov/cfr/index.html. You may be interested in FTA's Drug and Alcohol Interpretation Letters published at the website. Among these letters is one that concerns the rebuilding or overhauling of vehicles for grantees under long term contracts. That letter was issued on April 14, 2000. These letters may be found by going to http://transit-safety.volpe.dot.gov/Safety/datesting/LegalInterpretations/02toc.asp. The letters date back to 1994.   Q. What are the Federal Transit Administration/Dept of Transportation's guidelines for an admission by an employee of illegal drug use "2 weeks ago"? Remove from duty?   A. FTA guidelines at 49 CFR Part 655 require certain actions based on drug or alcohol test results or refusals by employees to take such tests.  An admission by an employee of past drug use falls outside of these guidelines and should be dealt with in accordance with the employer's disciplinary policies.   Q. What would be an acceptable reason for not scheduling a random test? If a test was scheduled but an employee was assigned to special duty is it acceptable for the employee to be passed over for random testing? If an employee is unavailable on the date of the random test, but the test period is still open (open list of randomly selected individuals) is the employer required to re-schedule? A. It is not acceptable for the employee to be passed over for random testing if a test was scheduled but an employee was assigned to special duty, unless that special duty is a transfer from a safety-sensitive position to a non-safety-sensitive position. (49 CFR 655.45, which provides that "all safety-sensitive employees in the random pool must have an equal chance of being selected for testing...").  Operational difficulties are not acceptable in excusing employees from testing.  If the employee is removed from safety-sensitive AND the random pool for 90 days, they are subject to pre-employment testing when they return.  If an employee is unavailable on the date of the random test, but the test period is still open, the employer must test the selected employee, unless he/she is out for the entire test period.  Alternates are not acceptable until the primary list has been exhausted.  (49 CFR 655.45, which provides that "all safety-sensitive employees in the random pool must have an equal chance of being selected for testing..."). Q.   Is there a requirement for a supervisor to transport an employee to and from a random drug or alcohol test? A. It is not a requirement to escort employees to random tests. I would note that it has been recognized by FTA as a best practice in order to ensure that the employee reports immediately (as required by Part 655.45(h)) and that no substitute sample, time to dilute, or masking gent is procured.  When employees are not escorted and report on their own it is also suggested that a notification log is kept including: time of notification, time reported to collection site, and time of return.  This allows the DER to track if the employee is reporting immediately and what the wait is at the collection site.  Obviously, an employee waiting at a collection site costs your agency time and money. In 49 CFR Part 655(h), it states: (h) Each employer shall require that each covered employee who is notified of selection for random drug or random alcohol testing proceed to the test site immediately. If the employee is performing a safety-sensitive function at the time of the notification, the employer shall instead ensure that the employee ceases to perform the safety-sensitive function and proceeds to the testing site immediately. http://transit-safety.volpe.dot.gov/Safety/DATesting/Regulations/pdf/49c fr655.pdf. Q.  The Word version of this contract clause still references 49 CFR Parts 653 and 654 which I believe are no longer applicable. If this is the case, can the clause be updated to reference compliance with 49 CFT Part 655?  A.  The BPPM clause language in Appendix A.1 needs to be updated to reflect the current CFR section #655 vs. the older references to #653 and #654. We will correct the BPPM clause instructions accordingly.  Q.  How do I apply to manage a Comprehensive Drug and Alcohol Testing Program for your Companies? A.  The Federal Transit Administration does not conduct or manage Drug and Alcohol Testing programs. You will need to contact various transit agencies throughout the U.S. and ascertain when they will be competing their contracts for this testing service. You can then submit a proposal in response to their public solicitations. Typically these contracts might be awarded for 3 to 5 years in duration, but FTA rules require all agencies receiving Federal funds to compete these contract awards at reasonable intervals. Q.  What employees must be included in the pool for random drug testing?  I know that CDL drivers must be, but I'm not sure about the safety-sensitive function requirement.  Is any employee who performs a safety sensitive function supposed to be included, or only drivers who perform safety-sensitive functions?  What other categories of employees must be tested? A.  FTA regulation 655.45 requires random testing for drugs and alcohol for all employees that perform safety-sensitive functions. Safety sensitive function is defined in Part 655.4, as any of the following duties, when performed by employees of recipients, subrecipients, operators, or contractors:  (1) Operating a revenue service vehicle, including when not in revenue service; (2) Operating a non-revenue service vehicle, when required to be operated by a holder of a Commercial Driver's License;  (3) Controlling dispatch or movement of a revenue service vehicle; (4) Maintaining (including repairs, overhaul and rebuilding) a revenue service vehicle or equipment used in revenue service. This section does not apply to the following: an employer who receives funding under 49 U.S.C. 5307 or 5309, is in an area with less than 200,000 in population, and contracts out such services; or an employer who receives funding under 49 U.S.C. 5311 and contracts out such services; (5) Carrying a firearm for security purposes. (49 CFR 655.4) The predecessors of 49 CFR Part 655, Parts 653.7 and 654.7 defined a covered employee as one "who performs a safety-sensitive function for an entity subject to this part."  In the preamble to those rules, we stated that "[b]ecause each recipient uses its own terminology, [FTA has] decided to define safety-sensitive based on the function performed instead of listing specific job categories.  Each employer must decide for itself whether a particular employee performs any of the functions listed in this definition (59 FR 7544 and 7584). FTA does not determine whether a particular job or job title is safety-sensitive