Richard A. Press, MD, FACOEM
Medical Director
Southeastern Pennsylvania Transportation Authority
1234 Market Street
Philadelphia, Pa 19107

Re: Random drug and alcohol testing under 49 CFR Parts 653 and 654

Dear Dr. Press:

Thank you for your letter asking whether a covered employee may be randomly tested for the use of prohibited drugs or the misuse of alcohol when the covered employee is on duty but not performing a safety-sensitive function. Specifically, you ask whether a safety-sensitive employee can be randomly tested for the use of prohibited drugs and/or the misuse of alcohol when he or she is administering "job pickings" for the union.

Under the Federal Transit Administration's (FTA) alcohol rule, an employer may test a covered employee just before, during, or just after the performance of a safety-sensitive function. 49 CFR 654.35(i). Under FTA's drug rule, however, an employer may randomly test a covered employee anytime he is on duty. 49 CFR 653.47.

We explained the rationale for this distinction in FTA's drug rule preamble, which was published the same day that the alcohol rule and its preamble was published.

Because drugs are prohibited substances, a safety-sensitive employee may be randomly tested anytime while on duty. In contrast, alcohol is a legal substance, and an employee who is not performing or who will not be performing a safety-sensitive function within four hours may engage in a legal activity. Thus, the alcohol rule strictly limits the period of time when the employee is subject to random testing.
59 FR 7577.

We stated further that

[t]o ensure their reasonableness for Constitutional purposes . . . , the [alcohol] rule. . . provide[s] that an employee can be tested for alcohol only while the employee is performing safety-sensitive functions, just before the employee is to perform safety-sensitive functions, or just after the employee has ceased performing such functions. . . . We have not defined the concept [of just before, during, and just after the performance of a safety-sensitive function] in terms of a specific time, but it is intended to be close enough to the actual performance of the safety-sensitive function that the test results will clearly indicate that the employee would be or was at 0.04 or above (or 0.02 or greater but less than 0.04) at the time when performing those functions.
59 FR 7324.

In the particular situation described in your letter, an employee is subject to random drug testing even when he or she is administering "job pickings" for the union. Such employees are not subject to random alcohol testing while "job pickings" unless he or she is just about to perform a safety-sensitive function or has just finished performing a safety-sensitive function.

If you have any further questions, please contact Nancy Zaczek or Kristin O'Grady of this office at (202) 366-4011. I apologize for the late response to your inquiry and any inconvenience this may have caused you.

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