Joyce Hiebler, R.N.
Clinical Manager, Mercy Medical Center
301 St. Paul Place
Baltimore, Maryland 21202

Dear Ms. Hiebler:

Thank you for your November 18, 1996, letter, seeking clarification of the Federal Transit Administration's (FTA) drug and alcohol testing regulations.

Your questions are:

1. (A) What information as well as documentation should the MRO be routinely reporting to the employer regarding MRO positive test results under the federal/FTA mandate? (B) Would you offer the same interpretation of the regulations as given me by Dr. Smith?

(A) According to 49 Code of Federal Regulations (CFR) Part 40, the Medical Review Officer (MRO), upon receipt of a positive test result from a certified testing laboratory, "only report[s] individual employee's test results to [a transit system's] designated drug and alcohol program manager and to the individual who was tested." The role of the MRO, then, is to review results of drug tests and, if appropriate, contact the tested employee and the employer.

Should the tested employee request it, he or she may request, in writing, "copies of any records pertaining to the covered employee's use of prohibited drugs, including any records pertaining to his or her drug tests. The employer shall provide promptly the records requested by the employee." 49 CFR 653.75(b).

Enclosed is a copy of a recent Departmental interpretation on the role of the MRO.

(B) While it would be inappropriate for the FTA to directly address statements attributed to a third party in an unsigned letter, we note the following: 1. Under 49 CFR 40.37, "[a]ny employee who is the subject of a drug test conducted under this part shall, upon written request, have access to any records relating to his or her drug test and any records relating to the results of any relevant certification, review, or revocation-of-certification proceedings." 2. 49 CFR 40.35 notes that employer contracts with testing laboratories "shall provide that the laboratory shall disclose information related to a positive drug test of an individual to the individual, the employer, or the decisionmaker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the individual and arising from a certified positive drug test." 3. Routine release of test results to any person or entity other than the tested individual violates the confidentiality the individual reasonably expects, and is not allowed. Please note the exceptions above (i.e., written consent, and in the course of employee-initiated legal action).

2. Please see the attached copies of the Maryland State Annotated Code and Code of Maryland Regulations as to what the State of Maryland says the employer needs to report to the employee. What is your opinion on how this should be handled when federal/FTA regulations apply?

From the material you provided, there does not appear to be a conflict between state law and Federal regulations. Please note that the Federal drug and alcohol testing should be kept separate from any testing done under authority of state law. 3. Is there anything that you see in our letter of August 31, 1995 to the MTA regarding what information we (as the MRO) could routinely provide to them as an employer that would cause for canceling or otherwise modifying a MRO positive drug test result?

As noted above, the role of the MRO is to review results of tests performed at certified laboratories and, when appropriate, inform both the tested employee and the employer of the test results.

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

Enclosure