Ms. Pat Moore
Administrator, Office of Public Transportation
Ohio Department of Transportation
25 S. Front Street
Post Office Box 899
Columbus, Ohio 43126-0899

Dear Ms. Moore:

Thank you for your letter of November 3, 1997, in which you seek to determine a Section 5311 recipient's right to drug and alcohol results of a contractor's employees. You express concern that because only the contractor/employer is entitled, under Federal Transit Administration (FTA) regulations, to receive an employee's test results, the 5311 recipient may not be notified of the test results. You state that 5311 recipient would like to receive the test results of their contractors' employees, to ensure the contractors are dealing appropriately with employees who have tested positive for drugs or alcohol misuse.

Your letter raises several related issues. For instance, you note that a contractor might "never notify the Section 5311 recipient" that an employee of the contractor has tested positive for either drugs or alcohol misuse. The FTA's drug and alcohol regulations do not obligate a contractor to notify Section 5311 (or 5307 or 5309) recipients of individual test results; indeed, a contractor who divulges an individual's results would have violated that employee's privacy and is out of compliance with FTA's drug and alcohol testing regulations.

You suggest that the Section 5311 recipient has not so much a contractual relationship with its contractors as an employer/employee relationship. As such, you suggest that the Section 5311 recipient is, or should be, entitled to receive notification of individual positive test results of the contractor's employees. While not addressing the validity of the assertion that a Section 5311 recipient is "actually the employer of the third party contractor," I stress that only the employer of record is entitled to receive an employee's test results. Any other result would violate the employee's privacy rights.

You ask what steps a 5311 recipient can take to ensure that its contractors do not allow an employee who has tested positive to perform safety-sensitive functions. As you know, an employee who tests positive for prohibited drugs or alcohol misuse must be removed immediately from performing safety-sensitive functions. If the contractor has a "second chance" policy, the contractor can allow an employee who has previously tested positive to return to safety-sensitive work only after complying with 49 CFR 653.37(b)-(c) and 654.75(b)-(e).

A Section 5311 recipient is not entitled to the individual test results of its contractors' employees. FTA subrecipients should engage their contractors in active compliance monitoring in ways which do not violate employees' privacy rights. A recent edition of FTA Drug and Alcohol Regulation Updates (Summer 1997, Issue 5) discusses ways in which recipients and their contractors can partner in greater compliance; I am enclosing a copy for your information.

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

Enclosure