Ms. Lori Casper
Human Resources Analyst
3231 Torrance Boulevard
Torrance, California 90503-5055

Dear Ms. Casper:

Thank you for your January 15, 1998, letter, in which you seek clarification of the Federal Transit Administration's (FTA) random drug and alcohol testing regulations. You note several features of your drug and alcohol testing program, and ask if they comply with the FTA's drug and alcohol regulations. While the FTA cannot determine compliance absent a complete audit, I can make the following observations:

- A prerequisite to any effective drug and alcohol random testing program is unpredictability; a safety-sensitive employee must be unaware that a random test is about to occur. While every safety-sensitive employee should understand that she or he is subject to testing at any time while performing a safety-sensitive function, no such employee should have any idea when testing will, or will not, happen. Thus, testing employees exclusively on the same day as pulling their names would destroy unpredictability. For example, if, in a program with a weekly testing period, selection and testing occur exclusively on Mondays, safety-sensitive employees would know they would not be tested Tuesday through Sunday. The ability of safety-sensitive workers to know when testing does, and does not, occur destroys the very basis of Congressionally-mandated random testing. Pulling and testing exclusively on the same day is impermissible interference with unpredictability.

- If a selected employee is unavailable for testing on a given day, that employee should be tested upon returning to work, if such return falls within the testing period. For example, in a system with a weekly testing period, a selected employee unavailable for random testing on one day should be tested upon returning to work, as long as testing occurs within the week.

- A grantee's drug and alcohol program manager must schedule random testing for any time a safety-sensitive function is being performed. In addition, random testing must occur throughout the period when safety-sensitive functions are being performed. Employees performing safety-sensitive functions after normal business hours or on the weekends remain subject to random testing. The fact that random testing during "off hours" may be an administrative inconvenience is not an acceptable reason not to test.

- An employee remains subject to random testing during the entire draw period. As the FTA noted in the FTA Drug and Alcohol Regulation Updates (Spring 1996, p. 3), when "an employee is temporarily unavailable at the time the employer desires to conduct the test, or it is [the employee's] day off, the number should be held until [the employee's] next shift as long as the test can be performed during the testing period (i.e., day, week, month, quarter) for which the number was selected."

- Compliance with these Federal regulations is non-negotiable; full compliance is mandatory.

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

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