Robert D. Falsetti, Esq.
Office of the General Counsel
Alameda-Contra Costa Transit District
1600 Franklin Street
Oakland, California 94612

RE: 49 CFR 653.37; referral/evaluation/termination

Dear Mr. Falsetti:

This is in response to your October 14, 1996, letter seeking clarification of 49 CFR Section 653.37, "Referral, evaluation, and treatment." You ask what responsibilities a grantee has to an employee who has tested positive for prohibited substances, and whose employment the grantee seeks to terminate.

As you know, the Federal Transit Administration's drug testing regulation is silent as to whether a grantee should adopt a policy of allowing an employee who has tested positive for prohibited substances to return to duty in a safety sensitive position after rehabilitation; it is within the grantee's discretion to adopt or reject such a "second chance" policy. If a grantee adopts this policy, then 49 CFR Sections 653.37(b) and (c) apply. Once the grantee decides to dismiss an employee, either because it has not adopted a "second chance" policy, or because a rehabilitated, returned-to-duty employee has failed a drug test for a second or subsequent time, then only 47 CFR 653.37(a) applies.

Please contact Michael Connelly of my staff at (202) 366-4011, if you would like to discuss this matter further.

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