Mr. Johnny E. Jackson
600 Seventh Avenue, #308
Seattle, Washington 98104

Dear Mr. Jackson:

Thank you for your January 21, 1998, letter, in which you question the King County Department of Transportation, Metro Transit Division's (Metro) practice of routinely releasing positive drug test results to the employee union, without the consent of the employee.

As you note, 49 CFR 653.75(a) states that, "no employer may release [drug testing] information pertaining to a covered employee" without the employee's express written consent. The regulation notes the employer may, in its defense, release the information when the employee has initiated a lawsuit, grievance, or other legal proceedings arising out of the drug test results. 49 CFR 653.75 (g). You indicate that you have not initiated any such proceeding.

In your letter, you include a December 18, 1997, memo to you from your base chief, indicating that the results of a drug test you had taken were verified positive. The memo, which you signed to acknowledge receipt, indicates that a courtesy copy was sent to the employee union (Local 587). Your signature on the memo does not, in and of itself, indicate you intended the results to be released to the union. An employer may release information regarding a covered employee's record, including drug test results, only with "the specific, written consent of the employee," and then only to an identified person. 49 CFR 653.75(h). An employer, as a matter of routine, is not permitted to disclose an employee's test results except in accordance with 49 CFR 653.75. It is my understanding that King County has ceased its practice of routinely notifying the union when members receive positive test results.

You also charge an additional violation of confidentiality because the Employee Assistance Program (EAP) (which you are required to attend as part of your retention agreement) shares office space with King County personnel. The fact the EAP is located in a building used by King County personnel is not dispositive. The confidentiality and privacy requirements of the regulation apply to the EAP Coordinator, regardless of where he or she may be located.

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

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