Mr. David Kempner
Pear, Sperling, Eggan & Muskovitz, P.C.
Domino's Farms
24 Frank Lloyd Wright Drive
Ann Arbor, Michigan 48105

Re: Confidentiality of test results under 49 CFR 653 and 654

Dear Mr. Kempner:

Thank you for your letter asking whether the Federal Transit Administration's (FTA) drug and alcohol rules prohibit an employer from releasing the names of safety-sensitive employees that have been randomly tested by the employer as required by the rules.

Yes, FTA's drug and alcohol rules prohibit an employer from releasing this information unless it receives specific written consent from the covered employee to do so.

The rules specifically prohibit an employer from releasing "covered employee information that is contained in records required to be maintained" under 49 CFR §§653.71 and 654.51, unless the employer receives from the covered employee "specific, written consent . . . authorizing release of the information to an identified person." 49 CFR §§653.75(a) and (h) and 654.55(a) and (h). Sections 653.71 and 654.51 require the employer to maintain certain records, including documents "relating to the random selection process," which includes the names of covered employees randomly tested. 49 CFR 653.71(c)(1)(ii) and 654.51(c)(1)(ii).

If you have any additional questions about this matter, please call Nancy Zaczek or Kristin O'Grady of this Office at (202) 366-4011.

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