Mr. Dennis M. Collins
311 Glynlea Road
Jacksonville, Florida 32216

Dear Mr. Collins:

Thank you for your November 18, 1997, letter to Federal Transit Administration (FTA) Regional Counsel Paul Jensen regarding confidentiality of safety-sensitive employee drug testing.

As to your general concern that fellow employees learned that you had been tested for prohibited substances, the FTA drug and alcohol rules protect test result confidentiality, but not the fact of having taken a test. Congress, in the Omnibus Transportation Employee Testing Act of 1991 (Public Law 102-143), declared that safety-sensitive employees of transit systems must be tested on pre-employment (drugs only), random, reasonable suspicion, post-accident, return-to-duty, and follow-up bases. Every safety-sensitive employee of a transit agency should assume he or she, along with all other safety-sensitive employees, will be tested because that is what Federal law provides. Under 49 Code of Federal Regulations (CFR) 653.75, drug and alcohol test results are confidential; you do not allege that anyone divulged the results of your tests.

As to the specific concerns expressed in your letter:

"1. Are dilated eyes sufficient reasonable suspicion?"

In the preamble to the drug rule (59 Fed. Reg. 7576), we noted that, "[r]easonable suspicion testing is specifically required by the Act, and the [rule] basically authorizes an employer to conduct a test when it believes the employee is exhibiting certain characteristics of prohibited drug use. The [rule] never identifies or defines those characteristics, but authorizes an employer to require a reasonable suspicion test on the basis of specific, contemporaneous, articulable observations concerning the appearance and behavior of the covered employee, which characterizes prohibited drug use. Moreover, those observations must be made by a supervisor trained in detecting the symptoms of drug use."

The preamble to the alcohol rule contains parallel language at 59 Fed. Reg. 7536.

FTA-approved training for supervisors includes detailed discussion of appropriate signs and symptoms of possible substance abuse-related behavior. Please note that while a third party may alert the covered employee's supervisor of suspicious behavior, the supervisor him- or herself, trained in detecting the symptoms of prohibited drug use, must observe the suspicious behavior or characteristics.

"2. Is it okay to allow a driver whom you truly believe to be under the influence of a cocaine-based substance to leave with a 40 foot bus and drive the public around for 2 hours and 9 minutes? What if I had been on drugs and had caused a fatal accident?"

No; those responsible for determining whether a reasonable suspicion test should be administered must be conversant with the Federal regulations and trained in detecting signs of drug use in order to determine in a timely manner whether to administer a reasonable suspicion drug test.

"3. Can you perform an alcohol test on a driver for dilated eyes when no smell of alcohol is present and you believe the driver to be under the influence of a cocaine-based substance, not alcohol?"

For the same reasons given in Answer #1, the FTA defers to employers in determining if a covered employee should be tested for alcohol.

"4. Who investigates the procedures a company follows when performing a reasonable suspicion test?"

The FTA conducts periodic audits of the drug and alcohol programs of its grantees to determine grantee compliance with the FTA's and the Department's regulations governing drug and alcohol testing. (The Department's regulation is at 49 CFR Part 40.)

"5. Is information regarding reasonable suspicion drug tests considered confidential?"

Drug test results are confidential. 49 CFR 653.75. To retain employee confidence in the drug and alcohol testing program, and to protect the privacy rights and expectations of tested employees, managers must use the utmost discretion when calling in an employee for reasonable suspicion testing.

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

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