Mr. Ronald T. Jones
Chief, Human Resources
Metro-Dade Transit Agency
3300 Northwest 32 Avenue
Miami, Florida 33142

Dear Mr. Jones:

Thank you for your September 29, 1999, letter, in which you seek clarification of the Federal Transit Administration’s (FTA) drug and alcohol testing regulations. Specifically, you ask whether Miami-Dade Transit Agency (MDTA) was in compliance with FTA and U.S. Department of Transportation (DOT) regulations when it conducted an observed drug test on an employee who, because of what he described as his sincerely-held religious belief, refused to remove a cap bearing a religious inscription. You note that 49 CFR 40.25(f)(4) requires that, prior to a drug or alcohol test being performed, the subject employee must remove unnecessary outer garments, such as caps, that could conceal items used to obstruct the test.

In a September 23, 1999, conversation between you, the senior attorney for Miami-Dade County, and a member of my staff, you determined that the employee would be allowed to keep his cap on, provided he agreed to allow an observed specimen collection. You considered this a "win-win" solution in that the employee’s religious liberty was preserved, and MDTA complied with FTA and DOT testing regulations.

As I understand it, you also determined that while an observed collection is mandatory under the conditions noted in 49 CFR 40.25(e)(2) (relating to unusual specimen temperature, creatinine concentration, obvious attempts to obstruct the test, and previous positive test results), such observation may be discretionary under other circumstances. In other words, nothing in the regulations prohibits MDTA from observing a collection with the employee’s consent, such as here, when such observation serves to accommodate the employee’s sincerely held religious beliefs.

Your action with respect to this situation is appropriate, as it represents a proper balance between accommodating the right of the employee to exercise what he describes as his sincerely-held religious beliefs, and MDTA’s responsibility to conduct testing that complies with all aspects of 49 CFR Parts 40, 653, and 654. The goal of 49 CFR 40.24(f)(4) is to prevent an individual from obstructing a duly administered test. By observing the collection, you accomplish the same goal, while at the same time, you respect the employee’s religious liberty.

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