Ms. Michelle Drahota
STA United, Inc.
P.O. Box 82089
Lincoln, Nebraska 68501-2089

RE: Randon testing; sporadic performance of a safety-sensitive function.

Dear Ms. Drahota:

Thank you for your letter asking whether, under the Federal Transit Administration's (FTA) drug and alcohol rules, an employer should randomly test an employee who performs a safety-sensitive function sporadically, i.e., only three or four times a year.

Under the FTA rules, a "covered employee shall only be randomly tested [for the misuse of alcohol] while the employee is performing safety-sensitive functions; just before the employee is to perform safety-sensitive functions; or just after the employee has ceased performing such functions." 49 CFR 654.35(i). "Each employer shall, at various times, randomly select covered employees for unannounced drug testing." 49 CFR 653.47(a). "Covered employee" means a person who performs a safety-sensitive function for an entity subject to the FTA rules. 49 CFR 653.7 and 654.7.

Drug and alcohol testing mandated by the government is a search within the meaning of the 4th Amendment to the U.S. Constitution. Skinner v. Railway Executives’ Association, 489 U.S. 616-617 (1989). To establish the reasonableness of a random testing program of mass transportation workers, the FTA has authorized the testing only of those employees whose actions can affect the safety of the public; in other words, those employees who perform a "safety-sensitive function." When an employee is not performing a "safety-sensitive function" for an extended period, such as a lengthy illness, then the government's interest disappears and the employee cannot be randomly tested for the use of prohibited drugs or the misuse of alcohol. Thus, an employee may be randomly drug tested only when he or she is "on duty" to perform a "safety-sensitive function"; an employee who may, at any time, be called on to perform a "safety-sensitive function," and is receiving pay for such time, is "on duty" for the purposes of random drug testing. Concerning the use of alcohol, which is a legal substance, FTA allows such an employee to be randomly tested only just before, during, or just after the performance of a "safety-sensitive function."

Therefore, to answer your question, if an employee is scheduled to perform a "safety-sensitive function" at specified intervals, e.g., every three or four months, then he or she can be randomly tested only during those times. If, however, the employee could, at any time, be called on to perform a "safety-sensitive function," then he or she must be subject to random drug and alcohol testing, even if the employee performs a "safety-sensitive function" only three or four times a year; however, the employee may be randomly alcohol tested only just before, during, or just after the performance of a "safety-sensitive function."

If you have any further questions, please call Nancy Zaczek of my staff at (202) 366-4011.

Very truly yours,
(Signed)
Gregory B. McBride
Acting Chief Counsel