Mr. Harry Saporta
Manager, System Safety Programs
Tri-County Metropolitan Transportation
District of Oregon
4012 S.E. 17th Avenue
Portland, Oregon 97202

Dear Mr. Saporta:

Thank you for your February 13, 1998, letter, in which you seek clarification of several aspects of the Federal Transit Administration's (FTA) drug and alcohol testing rules. Your questions relate to test scheduling; excusing a selected employee from testing; and the relation of the FTA rules to collective bargaining.

Your specific questions are:

"1. Must random drug/alcohol tests be distributed throughout a work shift, including the end of a shift?"

Yes; selection and testing must be both unannounced and unpredictable. The random testing program includes the possibility that an employee will be tested while performing, or having just performed, a safety-sensitive function, including at the end of a shift. The FTA recently noted, in the FTA Drug and Alcohol Regulation Updates (Fall/Winter 1996, p.5), that "testing at the end of the shift is consistent with the intent of the regulations as long as testing is also performed at other times throughout the work shift."

Testing must be spread throughout the draw period, and no predicable pattern of when testing occurs (e.g., every Wednesday, after lunch) may emerge.

"2. Once an employee is notified of the random drug/alcohol test, are there any provisions for deferring or excusing the employee from the test requirement?"

No; once an employee has been notified that he or she has been selected for random drug or alcohol testing, the employee must report immediately to the collection site.

"3. Do the FTA drug and alcohol regulations supersede those provisions of a collective bargaining agreement which are in conflict with the regulations?"

Yes; under 49 CFR 653.11, "an employer [through, for example, a collective bargaining agreement] may not impose requirements that are inconsistent with, contrary to, or frustrate the provision of this part." In other words, when there is an actual conflict between the provisions of a collective bargaining agreement and Federal regulations, the latter must prevail.

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