Ms. Diane M. Ruszala
Assistant Manager, Human Resources
Niagara Frontier Transportation Authority
181 Ellicott Street
Buffalo, New York 14203

Dear Ms. Ruszala:

Thank you for your January 13, 1998, letter, in which you seek clarification of the Federal Transit Administration's (FTA) rules on drug and alcohol testing. Your concerns relate to assigning random selection numbers to safety-sensitive positions, instead of to employees; to selecting and testing employees who are generally available to perform safety-sensitive functions; and to follow-up testing.

1) The rule covering random testing, 49 CFR 653.47, provides that selection of safety-sensitive employees, "shall be made by a scientifically valid method, such as a random-number table or a computer-based random number generator that is matched with the covered employees' Social Security numbers, payroll identification numbers, or other comparable identifying numbers." Please note that these numbers are assigned to all employees, including "extra board" operators, who perform safety-sensitive functions, and not to safety-sensitive positions.

If an employee, such as an "extra board" operator, can be called upon at any time to perform a safety-sensitive function, then that employee is subject to random drug testing selection. Such employees may be randomly selected and drug tested even when not performing a safety-sensitive function. An employee may be randomly tested for alcohol only just before, during, or just after performing a safety-sensitive function.

2) Regarding follow-up testing, as a preliminary matter, please note that the substance abuse professional (SAP), not management and/or employees, determines how long an employee remains subject to follow-up testing; such an important determination is the exclusive domain of the SAP. 49 CFR 653.63(d). The SAP may determine an employee requires up to 60 months of follow-up testing, the first 12 months of which are mandatory, the remaining 48 months of which are discretionary. 49 CFR 653.63(d). Using her professional judgment, an SAP may either lengthen or shorten the follow-up testing period after the first 12 months. In any event, to reduce such an important medical decision to management/labor bargaining weakens the important and independent role the SAP plays in the employee's rehabilitation, and is in violation of the rules.

As to the substance of your concern, whether an employer can "add on" to the period an employee is subject to follow-up testing because the employee is not working (e.g., worker's compensation, short-term disability, etc.), an employer may not unilaterally extend testing. As noted above, the SAP, not management or employees, determines the length an employee shall remain subject to follow-up testing, provided that the follow-up testing period ends no later than 60 months after the employee returns to duty. How long an employee remains subject to follow-up testing after the initial 12 months is at the discretion of the SAP, and is not subject to negotiations.

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