Mr. David Kempner
Pear, Sperling, Eggan & Muskovitz, P.C.
Domino's Farms
84 Frank Lloyd Wright Drive
Ann Arbor, Michigan 48105

RE: Follow-up testing under 49 CFR Parts 653 and 654.

Dear Mr. Kempner:

Thank you for your letter asking about the application of the Federal Transit Administration's (FTA) drug and alcohol testing regulations. 59 FR 7531 (1994) (to be codified at 49 CFR Parts 653 and 654). Those rules require that a recipient of funds under FTA's discretionary capital grant program, formula grant programs for urbanized and nonurbanized areas, or interstate transfer program implement a program requiring safety-sensitive employees to be tested for five controlled substances and for the misuse of alcohol. Large transit operators were required to implement the drug and alcohol rules beginning on January 1, 1995, while small transit operators must begin implementation on January 1, 1996.

Issue

You ask whether an employer can negotiate with a union to shorten the length of the follow-up testing period required under FTA's drug and alcohol testing rules.

Interpretation

An employer and a union cannot negotiate to shorten the length of the follow-up testing time period because the rules mandate that employees be subject to follow-up testing for up to 60 months; the rules provide for a shorter time period only if the substance abuse professional recommends it on a case-by-case basis depending on the needs of a particular employee. The following discussion of follow-up testing should be helpful to you in understanding the role of the substance abuse professional and the follow-up testing time period.

Only an employee who has tested positive for drugs or alcohol and has been determined by a substance abuse professional to be in need of assistance "is subject to unannounced follow-up testing as directed by a substance abuse professional." 49 CFR 653.51 and 654.41(b). Such an employee may be subject to follow-up testing for up to 60 months from the date of the employee's return to duty; during the first year of follow-up testing the employee must take at least six tests, which depending on the opinion of the substance abuse professional, may be for drugs or alcohol or both drugs and alcohol. §§654.75(c)(2)(ii) and 653.63(d). After the first year of follow-up testing has been completed, the substance abuse professional may terminate the requirement for follow-up testing at any time after the first six tests have been administered, if the substance abuse professional determines that such testing is no longer necessary. §654.75(c)(2)(ii) and 653.63(d).

If you have any additional questions, please feel free to call Nancy Zaczek of this Office at (202)366-4011.

Very truly yours,
(Signed)
Berle M. Schiller
Chief Counsel