Mr. Marco Gomez
Office of the General Counsel
San Francisco Bay Area Rapid Transit District
800 Madison Street – Lake Merritt Station
Post Office Box 12688
Oakland, California 94604-2688

Dear Mr. Gomez:

Thank you for your recent letters in which you seek clarification of the Federal Transit Administration’s (FTA) implementation of the Drug Free Workplace Act, 41 USC Sec. 702; 49 CFR Part 29. Specifically, you ask in your June 9, 1999 letter, whether, under the Act, any and all employees must notify their employer of a conviction for violating a criminal drug statute in the workplace, or whether the Act applies only to those employees whose positions have been fully or partially funded by an FTA grant. You also ask, in your June 23, 1999, letter, whether such reporting is required when there has been a plea of nolo contendere.

Regarding which employees must notify their employers of criminal drug statute convictions, the Act, as implemented by the U.S. Department of Transportation (Department) at 49 CFR Part 29, requires that all employees who work on any activity under the grant, and not only those whose positions have been funded fully or partially through a Federal grant, report workplace criminal drug statute convictions to their employers (e.g., the FTA grantee). 49 CFR 29.605. In making a grant, the Federal government acquires an interest in the whole project, not only that portion directly funded by the grant.
Were the regulation’s applicability limited to those employees in positions funded through the grant, a grantee could avoid complying with the Act by simply ensuring that Federal grants are used to fund only certain positions. Rather, the regulation applies to any employee performing "significant" work under the grant, regardless of the source of funding. Please note that the Department recognizes grantees are in a better position to know which employees perform work significant to performance of the grant, and are thus covered by the regulation.

As you may be aware, the Transportation Equity Act for the 21st Century (TEA-21), Pub. L. 105-178, discontinued operating assistance to transit systems serving urbanized areas of 200,000 or more; such systems may continue to receive capital assistance. The FTA informed its grantees that, despite the "loss" of operating assistance, FTA’s drug and alcohol testing regulations, 49 CFR Parts 653 and 654, would continue to apply. I am enclosing a copy of that letter. Like the drug and alcohol testing regulations, the Drug Free Workplace regulations continue to apply when a grantee receives capital assistance.

As to whether a nolo contendere plea must be reported, the regulations define conviction to mean "a finding of guilt (including a plea of nolo contendere) or imposition of sentence or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes", 49 CFR 29.605. Therefore, an employee that has entered a plea of nolo contendere must report such conviction to the employer.

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 Enclosure