Ms. Kari K. Blackburn
4937 San Jacinto Circle East
Fallbrook, California 92028

Dear Ms. Blackburn:

Thank you for your recent letter, in which you seek clarification of the Federal Transit Administration’s (FTA) drug and alcohol testing regulations. Specifically, you ask whether an employer is required to return an employee to duty to perform a safety-sensitive function after the employer determines that the employee has misused alcohol.

When an employer has determined that a covered employee has engaged in alcohol misuse, the employer is required to immediately remove the employee from his or her safety-sensitive function. 49 CFR 654.61. If the employer has a "second chance" policy, then the employee must be evaluated by a substance abuse professional (SAP) to determine what, if any, assistance, the employee needs in resolving problems associated with alcohol misuse. 49 CFR 654.75(b). In addition, the employee must undergo a return to duty test, 49 CFR 654.39, and remains subject to follow-up testing (for up to 60 months with at least six tests in the first 12 months) on a schedule to be determined by the SAP. 49 CFR 654.41 and 654.75(c).

If the employer has a "one chance" policy and decides to dismiss the covered employee after determining that he or she has engaged in prohibited conduct, the employer’s obligation is limited to providing the employee with a list of the resources available in evaluating and resolving problems associated with the misuse of alcohol. 49 CFR 654.75(a).

If you have additional questions, please contact Michael Connelly of my staff at (202) 366-4011.

Very truly yours,
(Signed)
Patrick W. Reilly
Chief Counsel