Mr. Robert Hildebrand
13570 S.E. 120th Way
Clackamus, Oregon 97015

Dear Mr. Hildebrand:

Thank you for your July 14, 1998, letter, in which you seek clarification of the Federal Transit Administration's (FTA) drug and alcohol testing regulations. Your questions relate to "end of shift" testing, random or follow-up testing when an employee is off-duty, and refusal to be tested after hours.

Regarding testing at the end of an employee's shift, FTA regulations call for random testing, including just before, during, and after performance of a safety-sensitive function. 49 CFR 653.47 and 654.35. Such random testing may occur at the end of an employee's shift, right after the employee has completed performing a safety-sensitive function.

The need for "end of shift" testing is a key element of the testing program. In order to comply with the FTA's requirement that testing occur randomly, the employee must remain subject to testing at any time during his or her workshift, including just prior to ending that shift. Say, for example, that an employee's shift ends at 5:00 p.m. Were the FTA to prohibit random drug testing which extended beyond an employee's workshift, then the latest an employee could be tested would be three hours prior to the end of the shift. This, of course, would cause the process to be something other than random. Please note that the testing process must begin (i.e., the employee is initially notified he or she has been selected to be randomly tested) prior to the end of the shift.

Regarding random or follow-up testing when an employee is off duty, there is no provision in the regulations permitting the employer to initiate testing other than when the employee is on duty. An employee does not forfeit all reasonable expectations of privacy when he becomes subject to random or follow-up testing. However, if during treatment, the substance abuse professional (SAP) mandates periodic testing as part of the rehabilitation program, the employee must submit to testing as prescribed and scheduled by the SAP.

Finally, you ask whether an employee is subject to random testing when he is not on duty. The answer depends on when the testing was initiated. On the one hand, an employee may properly refuse to take a test when the testing process is initiated after the employee's shift ends. On the other hand, if a test is initiated while the employee is on duty, the employee may not simply stop the test and leave because the employee's shift has ended. Once a test is properly initiated, it must be completed, even when such completion has the incidental effect of causing the employee to stay overtime.

If you have additional questions, please contact Michael Connelly of my staff at (202) 366-4011.

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