Mr. Cary Morgen
Manager of Human Resources Policy and Programs
Chicago Transit Authority
Merchandise Mart Plaza
P.O. Box 3555
Chicago, Illinois 60654

Dear Mr. Morgen:

Thank you for your December 17, 1998 letter, in which you seek clarification of the Federal Transit Administration’s (FTA) rules governing drug testing. Specifically, you asked whether you would be considered as non-compliant if your union contract limits the period for follow-up testing to 24 months.

As a preliminary matter, please note that the substance abuse professional (SAP), not management and/or employees, determines how long an employee remains subject to follow-up testing; such an important determination is the exclusive domain of the SAP. 49 CFR 653.63(d). The SAP may determine an employee requires up to 60 months of follow-up testing, the first 12 months of which are mandatory, the remaining 48 months of which are discretionary. 49 CFR 653.63(d). Using their professional judgment, SAPs may either lengthen or shorten the follow-up testing period after the first 12 months. In any event, to reduce such an important medical decision to management/labor bargaining weakens the important and independent role the SAP plays in the employee’s rehabilitation, and is in violation of the rules.

As such, a union contract limiting the period for follow-up testing to 24 months would be considered non-compliant. As noted above, the SAP, not management or employees, determines the length an employee shall remain subject to follow-up testing, provided that the follow-up testing ends no later than 60 months after the employee returns to duty. The length of time an employee remains subject to follow-up testing is at the discretion of the SAP, and is not subject to negotiations.

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