Ms. Leila S. Procopio-Makuh
Human Resources Manager, Special Programs
Los Angeles County Metropolitan Transportation Authority
One Gateway Plaza
Los Angeles, California 90012

Dear Ms. Procopio-Makuh:

Thank you for your February 6, 1997, letter seeking clarification regarding the applicability of Federal regulations to an employee who is returning to work after having tested positive for a prohibited substance. You ask whether an employee who performs a safety-sensitive function and who has tested positive may return to his or her position without evaluation by a substance abuse professional (SAP) and without follow-up testing.

As a preliminary matter, please note that compliance with the Federal Transit Administration's (FTA) drug and alcohol regulations is not discretionary; recipients of FTA funding must comply with the regulations in order to receive such monies. As the Department noted when amending its rules at 49 CFR Part 40, "[a]s a matter of law, no decision by an employer, employee organization, or individual or group appointed by those or other parties, can have the effect of excusing noncompliance by an employer with a provision of a DOT safety regulation." 59 Fed. Reg. 7354.

Your questions are: "1. Is an employee, who has been discharged for a positive drug or alcohol test as provided in the FTA regulations and is later reinstated by an arbitrator, as in the instant case,required to be sent to an SAP and be subject to follow-up tests?"

Yes; the FTA testing regulation requires an employer to ensure that an employee who has tested positive for prohibited substances is evaluated by an SAP for possible referral. 49 CFR 653.37(b) and (c). The employer must also ensure that the covered employee takes, and passes, a "return to duty" drug test. Finally, the employer must ensure that the employee is subject to a minimum of six unannounced follow-up tests during the first 12 months after returning to work, with additional follow-up testing allowed for an additional 48 months.

Please note that FTA regulations do not require the discharge of an employee who has tested positive for prohibited substances; rather, the regulations require that the employer not permit the employee to perform a safety-sensitive function. The decision whether to terminate employment is within the discretion of the employer. "2. If the employee has been allowed to return to work without clearance from the SAP, could and should this employee be sent to an SAP after (s)he has already returned to work and be subject to follow-up tests?"

An employer that allows an employee who has tested positive for a prohibited substance to return to work without first being evaluated and "cleared" by an SAP has violated the FTA's drug regulation. In this circumstance, the employee should be sent to an SAP immediately. "3. If the employee has always denied using drugs or alcohol and the arbitrator believed him (and there was inadequate or no proof that the employee has used or had purposefully used drugs or alcohol), would the answer to 1 and 2 above be any different?"

No; either the employee has tested positive for prohibited substances, in which case the consequences in the regulations apply, or the employee has not tested positive, in which case he or she would not be subject to return-to-duty and follow-up testing. "4. If the answer to any of the above questions is yes, from what date does the 60-month limitation on ability to do follow-up testing begin?"

From the date of the employee's return to safety-sensitive service.

Please contact Michael Connelly at (202) 366-4011 if you have further questions.

Very truly yours,
(Signed)
Patrick W. Reilly
Chief Counsel