Mr. Gerald W. Mauney
Intelitran
4161 Carmichael Avenue, Suite 111
Jacksonville, Florida 32207

Dear Mr. Mauney:

Thank you for your September 21, 1998, e-mail in which you seek clarification of the Federal Transit Administration's (FTA) drug and alcohol testing regulations. Specifically, you seek information on the requirement that random drug testing be performed beyond normal administrative hours.

The random testing provision of the regulations states, "each covered employee shall be in a pool from which random selection is made. Each covered employee shall have an equal chance of selection . . . ." 49 CFR 653.47(c); the alcohol random selection rule contains similar language. 49 CFR 654.35. Clearly, then, covered (i.e., safety-sensitive) employees who work other than normal administrative hours (e.g., 8:00 a.m. to 5:00 p.m.) must be subject to selection and testing on an equal basis with those who work "normal business hours." Were the rules to be implemented and interpreted in any other way, so that testing were required only during normal business hours, whole classes and categories of safety-sensitive employees (e.g., certain maintenance workers, night-shift driver, indeed, anyone who worked other than during the day), would escape the rules, to the detriment of the riding public. Random testing must occur whenever safety-sensitive functions are performed, regardless of time of day.

I am enclosing a recent letter of interpretation on the issue of testing safety-sensitive employees after normal business hours, as well as an issue of the FTA Drug and Alcohol Regulation Updates, Fall/Winter 1996. Please note that "[r]andom tests must be conducted in a manner that eliminates the predictability of the test. As such, transit systems should take care to schedule tests at various times throughout an employee's work shift (i.e., beginning, middle, and end) rather than at the same predictable time, test after test." Updates, p.5.

Since inception, the rules have been a balance between causing inconvenience to the grantee and promoting public safety. The FTA has consistently held, in the interest of public safety, that "after-hours" testing is not only acceptable, but required.

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

Enclosures