Mr. Gerald Slater
Day, Berry & Howard
260 Franklin Street
Boston, MA 02110-3179

Re: Safety-sensitive function under 49 CFR 653 and 654

Dear Mr. Slater:

Thank you for your letter asking whether the Federal Transit Administration's (FTA) drug and alcohol rules apply to ambulance drivers who drive paratransit minivans for recipients of funding under FTA's formula program for urbanized areas. You write that although the ambulance drivers are subject to pre-employment drug tests under State law, they are exempt from testing under the Federal Highway Administration's substance abuse rule. The State procedures used to conduct pre-employment drug testing are identical to the procedures required in FTA's drug rule. You state that the only difference between an "FTA" and a "State" test is the color of the forms used to document the procedure. You ask whether such an ambulance driver must be given pre-employment drug tests before he or she can drives a paratransit vehicle for a section 9 recipient.

Interpretation

Ambulance drivers who drive paratransit vehicles for a recipient of FTA's formula program for urbanized areas must be given a pre-employment drug test. FTA's drug rule states specifically that "[a]n employer may not hire an applicant to perform a safety-sensitive function unless the applicant takes a drug test with a verified negative result administered under this part." 49 CFR 653.41(a). FTA has provided no exceptions to this provision, all applicants must take and pass a drug test. Moreover, according to section 653.41(a), it is irrelevant that the procedures used by the State are identical to the procedures mandated by FTA. Section 653.41(a) states specifically that the applicant cannot be hired unless he or she has a verified negative result of a drug test "administered under this part." Hence, according to FTA's rules, a test administered under a State law is a State test; a test administered under the FTA's rule is a Federal test. These tests can not be interchanged.

If you have any additional questions, please call Nancy Zaczek of this office at (202) 366-4011. I apologize for the late response to your inquiry and any inconvenience this may have caused you.

Very truly yours,
(Signed)
Berle M. Schiller
Chief Counsel