FTA Drug and Alcohol Regulations
FTA Drug and Alcohol Rules: An Overview
The following is a general overview of the Federal Transit Administration (FTA) drug and alcohol testing rules for persons required to safety-sensitive duties. A comprehensive list of the alcohol and drug testing rules published by the FTA and the DOT Office of the Secretary (OST) applicable to safety-sensitive employees and their employers is available in 49 CFR Part 655. For help understanding and implementing regulations for FTA contact us.
What are the Rules?
The FTA regulations require drug and alcohol testing of individuals operating in safety-sensitive positions, including contracted workers and part-time employees. The FTA and DOT test for and prohibit the use of the following drugs: marijuana, cocaine, non-prescribed opiates, phencyclidine (PCP), and non-prescribed amphetamines. Employees are also not permitted to perform safety-sensitive functions with an alcohol concentration greater than 0.02. If an employee tests positive for alcohol in a concentration between 0.02 and 0.04 they must not perform safety-sensitive functions until their next regularly scheduled shift (not before 8 hours after the initial positive), or until their alcohol concentration is below 0.02.
In order to properly implement the drug and alcohol policies as required by the DOT and FTA, an employer must have the following:
- An Employee Assistance Program (EAP) that must include education and training on drug use for employees and training for supervisors making determinations for testing of employees based on reasonable cause.
- 60-minutes of drug and 60 minutes of alcohol use recognition training for supervisors in roles that must make such determinations.
- A Drug and Alcohol Testing Program that conducts pre-employment drug testing, random, return-to-duty, follow-up, and reasonable cause testing for safety-sensitive employees.
Follow all other DOT requirements for drug and alcohol testing as dictated in 49 CFR Part 40.
Who Are Affected by These Rules?
The FTA rules outlined in 49 CFR Part 665 apply to any regulated operator or contractor, or to any recipient or sub-recipient of federal transit funding under 49 U.S.C. 5307, 5309, or 5311. Recipients must test safety-sensitive employees performing the following covered functions:
(1) Operating a revenue service vehicle, including when not in revenue service;
(2) Operating a nonrevenue service vehicle, when required to be operated by a holder of a Commercial Driver’s License;
(3) Controlling dispatch or movement of a revenue service vehicle;
(4) Maintaining (including repairs, overhaul and rebuilding) a revenue service vehicle or equipment used in revenue service. This section does not apply to the following: an employer who receives funding under 49 U.S.C. 5307 or 5309, is in an area less than 200,000 in population, and contracts out such services; or an employer who receives funding under 49 U.S.C. 5311 and contracts out such services;
(5) Carrying a firearm for security purposes.
Any on-call employee must abstain from alcohol (and drug) use for the specified on-call hours. A procedure should be in place for on-call employees to acknowledge alcohol use at the time they are called in for duty and if they believe they are fit for duty they must receive an alcohol test prior to performing safety-sensitive functions.
What if We Use a Contractor or Sub-recipient?
Contractors and Sub-recipients must abide by the same regulations and restrictions as any operator. The operator employing a contractor/sub-recipient remains responsible for these regulations.
What About Ferry Boats?
A recipient operating a ferryboat regulated by the United States Coast Guard (USCG) that satisfactorily complies with the testing requirements of 46 CFR Parts 4 and 16, and 33 CFR Part 95 shall be in concurrent compliance with the testing requirements [of 49 CFR Part 665].
What Alcohol Use is Prohibited?
Alcohol is a legal substance; therefore, the rules prohibit specific alcohol-related conduct. Performance of safety-sensitive functions is prohibited:
- While using alcohol.
- While having a breath alcohol concentration of .02 percent or greater as indicated by an alcohol breath test.
- An employee who tests between an alcohol concentration of .02 and .039 shall not be permitted to return to work until their next shift (not within 8 hours), or until their concentration drops below .02.
- Within four hours after using alcohol.
In addition, refusing to submit to an alcohol test or using alcohol within eight hours after an accident or until tested is prohibited.
What Alcohol Tests Are Required?
The following alcohol tests are required:
- Post-accident – Alcohol testing must take place within 2 hours after an accident for all covered employees who cannot be ruled out as a contributing factor to the accident. If administered after 2 hours, there must be written documentation regarding the purpose for the delay of testing. If no drug test has been administered within 8 hours following a test, you must cease attempts. Employees are not permitted to use alcohol within that time frame after an accident.
- An accident is defined as an incident where:
- An individual dies.
- An individual is injured and receives medical treatment away from the scene of the accident.
- A mass transit vehicle (including non FTA-funded vehicles) incurs disabling damage.
- As a result of the occurrence, a public transportation vehicle is removed from operation.
- An accident is defined as an incident where:
- Reasonable suspicion – conducted when a trained supervisor or company official observes behavior or appearance that is characteristic of alcohol misuse during the performance of covered functions, or directly before or after.
- No employee who shows signs and symptoms of alcohol use may perform covered functions until they are tested with an alcohol concentration below .02 or until their next shift (not less than 8 hours after).
- Return-to-duty and follow-up – conducted when an individual who has violated the alcohol conduct standards returns to performing safety-sensitive duties. Follow-up tests are unannounced. At least six tests must be conducted in the first 12 months after an employee returns to duty. Follow-up testing may be extended for up to 60 months following return to duty.
- Random – Random testing must occur for a minimum of 10% of covered positions per year.
Pre-employment testing for alcohol is allowed but not required.
How Will Alcohol Testing Be Done?
The rules allow for screening tests to be conducted using saliva devices or breath testing using evidential breath testing (EBT) and non-evidential breath testing devices approved by the National Highway Traffic Safety Administration (NHTSA). NHTSA periodically publishes a list of approved devices in the Federal Register.
Two tests are required to determine if a person has a prohibited alcohol concentration. A screening test is conducted first. Any result less than 0.02 alcohol concentration is considered a “negative” test. If the alcohol concentration is 0.02 or greater, a second confirmation test must be conducted. The employee and the individual conducting the confirmation breath test (called a Breath Alcohol Technician (BAT)) complete the Alcohol Testing Form to ensure that the results are properly recorded. The confirmation test, if required, must be conducted using an Evidential Breathe Testing (EBT) device that prints out the results, date, time, sequential test number, and the name and the serial number of the EBT used to ensure the reliability of the results. The confirmation test results determine any actions taken.
Testing procedures that ensure accuracy, reliability, and confidentiality of test results are outlined in the Part 40 rule. These procedures include training and proficiency requirements for the Screening Test Technicians (STT) and BAT, quality assurance plans for the breath testing devices (including calibration requirements for a suitable test location), and protection of employee test records.
Who Does the Testing?
Employers are responsible for implementing and conducting testing programs. They may do this using their own employees or contract services, or by joining a Consortium/Third-Party Administrator (C/TPA) that provides services to all member companies. Any individual conducting the test must be trained to operate the EBT and be proficient in the breath testing procedures as outlined in 49 CFR Part 40.
What Are the Consequences of Alcohol Misuse?
Employees who engage in prohibited alcohol conduct must be immediately removed from safety-sensitive functions. Employees who have engaged in alcohol misuse cannot return to safety-sensitive duties until they have been evaluated by a Substance Abuse Professional (SAP) and complied with any treatment recommendations to assist them with an alcohol problem. To further safeguard safety, employees who have an alcohol concentration of 0.02-0.04 when tested just before, during or just after performing safety-sensitive functions must also be removed from performing such duties until their next scheduled shift (no earlier than 8 hours after the test), or until their alcohol concentration drops below 0.02.
If an employee’s behavior or appearance suggests alcohol misuse, a reasonable suspicion alcohol test must be conducted. If a breath test cannot be administered, the employee must be removed from performing safety-sensitive duties for at least 24 hours.
How Will Employees Know About These Rules?
Employers must provide detailed information about alcohol misuse, the employers’ policy, the testing requirements, and how and where employees can get help for alcohol abuse. Supervisors of safety-sensitive employees must attend at least one hour of training on alcohol misuse symptoms and indicators used in making determinations for reasonable suspicion testing.
Are Employees Entitled to Rehabilitation?
Employees who violate the alcohol misuse rules will be referred to an SAP for evaluation. Any treatment or rehabilitation would be provided in accordance with the employer’s policy or labor/management agreements. The employer is not required under these rules to provide rehabilitation, pay for treatment, or reinstate the employee in his/her safety-sensitive position. Any employer who does decide to return an employee to safety-sensitive duties must ensure that the employee: 1) has been evaluated by an SAP; 2) has complied with any recommended treatment; 3) has taken a return-to-duty alcohol test (with a result less than 0.02); and 4) is subject to unannounced follow-up alcohol tests (minimum of 6 tests in the first year, up to 60 months.
How Will the FTA Know if These Rules are Being Followed?
Employers are required to keep detailed records of their drug and alcohol policies and programs. The FTA will conduct inspections or audits of employers’ programs on occasion. Additionally, employers may be required to prepare MIS reports for the FTA. The FTA requires operators to submit annual MIS reports for the previous year by March 15 if requested by the FTA. These reports will be used to help monitor compliance and enforcement of the rules, as well as to provide data on the extent of alcohol misuse and the need for any future program and regulatory changes. MIS reports can be submitted by your C/TPA on your behalf. To get help with your MIS reports please contact us.
Are Employees' Alcohol Testing Records Confidential?
Yes. Test results and other confidential information may be released only to the employer and the SAP. Any other release of this information is only with the employee’s written consent. If an employee initiates a grievance, hearing, lawsuit, or other action as a result of a violation of these rules, the employer may release relevant information to the decision maker.
What About Drug Testing?
The drug testing rules cover the same employees as the alcohol testing rules. The types of tests required are;
- Pre-employment (includes employees who have not performed safety-sensitive functions for 90 consecutive calendar days and have not been in the employer’s random selection pool).
- Reasonable suspicion (must be based on reasonable and articulable belief that an employee is under the influence of a prohibited drug. This must be observed by a supervisor trained in drug recognition.
- Post-accident (No later than 32 hours after an accident. Must test each surviving covered employee who can’t be ruled out as a contributing factor to the accident.)
How is Drug Testing Administered?
Drug testing is conducted by analyzing an employee’s urine specimen. The analysis is performed at laboratories certified and monitored by the Department of Health and Human Services (DHHS). The list of DHHS approved laboratories is published monthly in the Federal Register.
The employee must provide a urine specimen in a location that affords privacy and complies with DOT collection site regulations as stipulated in 49 CFR Part 40. The collector seals and labels the specimen, completes a chain of custody document, and prepares the specimen and accompanying paperwork for shipment to a drug-testing laboratory.
The specimen collection procedures and chain of custody ensure that the specimen’s security, proper identification, and integrity, are not compromised. The Omnibus Transportation Employee Testing Act of 1991 requires that drug testing procedures include split specimen collections. Each urine specimen is subdivided into two bottles labeled as a “primary” and a “split” specimen and both bottles are sent to a laboratory. Only the primary specimen is opened and used for the urinalysis. The split specimen bottle remains sealed and is stored at the laboratory. If the analysis of the primary specimen confirms the presence of illegal controlled substances, the employee has 72 hours to request the split specimen be sent to another DHHS-certified laboratory for analysis.
What Drugs are Tested For?
All urine specimens are analyzed for the following drugs:
- Marijuana (THC metabolite)
- Opiates (including heroin)
- Phencyclidine (PCP)
The testing is a two-stage process. First, a screening test is performed. If it is positive for one or more of the drugs, then a confirmation test is performed for each identified drug using gas chromatography/mass spectrometry (GC/MS) analysis. GC/MS confirmation ensures that over-the-counter medications or preparations are not reported as positive results.
Who Reviews and Interprets the Laboratory Results?
All drug test results are reviewed and interpreted by a physician known as a Medical Review Officer (MRO) before they are reported to the employer. If the laboratory reports a positive result to the MRO, the MRO contacts the employee (in person or by telephone) and conducts an interview to determine if there is an alternative medical explanation for the drugs found in the employee’s urine specimen. If the employee provides appropriate documentation and the MRO determines that it is a legitimate medical use of the prohibited drug, the drug test result is reported as negative to the employer.
What Drug Use is Prohibited?
The drug rules prohibit any unauthorized use of the controlled substances. Illicit use of drugs by safety-sensitive employees is prohibited on or off duty. DOT drug tests will test for marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, as specified in 49 CFR 40.85.
What Are the Consequences of a Positive Drug Test?
Like alcohol positives above 0.4, an employee who tests positive for drugs must be removed from safety-sensitive duty and receive a written notice of the removal and purpose. The removal cannot take place until the MRO has interviewed the employee and determined that the positive drug test resulted from the unauthorized use of a controlled substance. An employee cannot be returned to safety-sensitive duties until they have been evaluated by a substance abuse professional, has complied with recommended rehabilitation, and has a negative result on a return-to-duty drug test. Follow-up testing to monitor the employee’s continued abstinence from drug use is also required.
Regulations require all return-to-duty and follow-up testing to be conducted under direct observation procedures. During a direct observation, a collector or observer of the same gender has the donor pull their pants down to thigh level and pull up their shirt to demonstrate they have no devices to store urine or a urine substitute (the gender of the observer should match the gender identity of the donor as indicated by the donor). The collector/observer then observes as the donor provides the specimen. The observer must observe the donor urinating into the specimen container.
Should an employee refuse a drug or alcohol test, they must be removed from performing regulated services and must be subject to return-to-duty and follow-up testing.
How Does Random Drug Testing Work?
Employers are responsible for conducting random, unannounced drug tests. The total number conducted each year must equal at least 25% of the safety-sensitive employees. Some employees may be tested more than once each year; some may not be tested at all depending on the random selection. Once notified of selection for testing an employee must proceed immediately to a collection site to accomplish the urine specimen collection.
What Are the Consequences of Non-Compliance?
If, as a recipient of FTA financial assistance, you do not establish an anti-drug and alcohol misuse program in compliance with 49 CFR Part 665, the Administrator may bar you from receiving Federal financial assistance in the amount they consider appropriate. You could also be subject to criminal sanctions and fines for false statements or misrepresentations of your drug and alcohol programs. These consequences also apply to ferry boat operators who are out of compliance with USCG regulations.
What Are the Certification Requirements for Federal Financial Assistance Recipients?
As a recipient of Federal financial assistance, you must annually recertify compliance with 49 CFR Part 665 to the applicable FTA Regional Office.