Ms. Phyllis M. Nabonne
Director of Human Resources
Transit Management of Southeast Louisiana
6700 Plaza Drive
New Orleans, Louisiana 70127-2677

RE: Safety-sensitive employees; reasonable suspicion determinations; supervisors under 49 CFR Parts 653 and 654.

Dear Ms. Nabonne:

Thank you for your letter asking about the application of the Federal Transit Administration's (FTA) drug and alcohol testing regulations. 49 CFR Parts 653 and 654. We apologize for the delay in responding to your questions.

You ask (1) whether an employee is covered by the rules if he or she performs a safety-sensitive function infrequently, such as "in the event of a strike"; (2) whether FTA will approve certain job titles as safety-sensitive; and (3) whether non-supervisors who receive reasonable suspicion training can make reasonable suspicion determinations.

Performing a safety-sensitive function infrequently. The rules do not specifically address the issue of whether those who only infrequently perform a safety-sensitive function are subject to the rules, although the preamble states that supervisors are subject to testing if the "supervisor's job description includes the performance of any of the functions listed [in the definition of safety-sensitive function]."

In our view, whether any particular employee is subject to testing begins with an examination of the written job description. If a job description includes the possibility of performing a safety-sensitive function, then the person in that job is subject to testing even if he or she performs that function only "in the event of a strike."

Under the reasonable suspicion or random alcohol testing provisions, however, an employee is subject to testing only "just before, during, or just after the performance of a safety-sensitive function. 49 CFR §§654.35(i) and 654.37(c).

FTA approval of safety-sensitive positions. FTA does not determine which job classifications are safety-sensitive. As we noted in the regulatory preamble, "[e]ach employer must decide for itself whether a particular employee performs any of the functions listed in this definition." 59 FR 7544 and 7584.

Non-supervisors making reasonable suspicion determinations. A non-supervisor may not determine whether a covered employee should undergo drug and alcohol testing based on reasonable suspicion: "required observations shall be made by a supervisor trained in detecting the signs and symptoms of alcohol misuse and prohibited drug use." 49 CFR §§653.43(b) and 654.37(b).

If you have any additional questions, please contact Nancy Zaczek of this Office, at (202)366-4011.

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