Ms. Amy L. Edgar
Michigan Department of Transportation
Transportation Building
425 West Ottawa
Post Office Box 300050
Lansing, Michigan 48909

RE: Confidentiality of test results; consortium; third party administrators

Dear Ms. Edgar:

Thank you for your letter asking about the application of the Federal Transit Administration's (FTA) drug and alcohol testing regulations. 59 FR 7531 (1994) (to be codified at 49 CFR Parts 653 and 654). Those rules require that a recipient of funds under FTA's discretionary capital grant program, formula grant programs for urbanized and nonurbanized areas, or interstate transfer program implement a program requiring safety-sensitive employees to be tested for five controlled substances and for the misuse of alcohol. Large transit operators must implement the drug and alcohol rules beginning on January 1, 1995, while small transit operators must begin implementation on January 1, 1996.

Issue

You ask whether the FTA rules on drug and alcohol testing prohibit an employer from authorizing a consortium to receive an employee's test results from a Medical Review Officer or a Breath Alcohol Technician.

Interpretation

FTA and other DOT agencies actively encourage employers, especially small ones, to join or form a consortium to efficiently and effectively implement the rule as well as to reduce costs. In practice, this means that an employer must decide what the consortium will do on its behalf; some employers may decide to require the consortium to operate the drug and alcohol testing program in its entirety. Others may require the consortium to conduct only the actual selection of safety-sensitive employees for random testing. The rules are flexible in this regard.

Under Part 40, the Department's drug and alcohol testing procedures common rule, "employer" includes any "consortium or joint enterprise comprised of two or more employing entities," thus indicating that the rules give the employer broad discretion to delegate its responsibilities under the rules. Moreover, neither Part 40 nor FTA's drug and alcohol rules prohibit an employer from authorizing its agent, i.e., the consortium, to receive individual test results.

In short, under the rules a consortium or third party administrator may receive an employee's test results on behalf of the employer. We emphasize, however, that the employer must ensure that the consortium, acting as its agent, maintains the confidentiality of an employee's test results to the same extent the employer is required to under 49 CFR §§653.75(a) and 654.55(a).

I trust this is responsive to your inquiry.

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