This section of the Transit Manager’s Toolkit summarizes the requirements for public transit systems to have a Federal Transit Administration (FTA)-compliant drug and alcohol testing program. In accordance with FTA drug and alcohol regulations 49 CFR Part 655, recipients or subrecipients of Sections 5307, 5309 or 5311 federal funding must test all safety-sensitive employees regardless of the size of the system or the number of employees. The drug and alcohol testing procedures must comply with U.S. Department of Transportation (U. S. DOT) regulations in 49 CFR Part 40. The FTA regulations in Part 655 detail specific requirements for the transit agency’s drug and alcohol testing program.
The sources of information in this section include FTA’s 2009 Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit and 2019 Implementation Guidelines for Drug and Alcohol Regulations in Public Transportation, guidance and technical assistance published on the FTA web site, and the current regulatory text in 49 CFR Parts 40 and 655. Transit managers need to be aware that changes are periodically made to the U.S. DOT regulations under Parts 40 and 655. To keep abreast of such changes, periodically checking the FTA Drug & Alcohol Program web page and subscribing to FTA’s Drug & Alcohol Regulation Updates newsletters is strongly recommended.
This section of the Toolkit is organized in the following subsections:
FTA regulations require that impacted transit systems develop a drug and alcohol testing program with the following elements:
The regulations also establish:
Requirements for each of these elements are summarized in following sections.
Following the requirements, this section also introduces consideration of a policy on prescription and over-the-counter medications.
National RTAP’s Substance Abuse Awareness Training, Testing, and Compliance Technical Brief, updated in 2021, is a helpful resource with information about the requirements, including frequently asked questions and links to a host of federal regulations and resources.
FTA regulations under Part 655 require that the local governing board of the employer or operator adopt an anti-drug and alcohol misuse policy statement. The statement, which must be made available to each safety-sensitive employee, must contain each of the elements described in the following list. The FTA website has a policy builder tool that can help transit managers create or update their organization’s policy statement.
Note that later in this section of the Toolkit there is information about testing for marijuana in states where it has been legalized and for fitness-for-duty considerations related to prescription drugs.
The FTA website provides a checklist of items that must be included in the policy and a template for creating a policy. Links to these and other tools can be found on the FTA Drug and Alcohol Tools and Resources web page.
Each aspect of the policy statement should be clearly defined and must be shared in writing with employees and management staff. The agency should obtain signed acknowledgement of receipt of the policy from each employee.
FTA regulations in Part 655 require specific training for safety-sensitive employees and their supervisors. While the regulations do not require refresher training for safety-sensitive employees, it is recommended that training programs go beyond the required elements. Transit organizations are also required to keep detailed records of their employee and supervisor training for 2 years. This includes copies of attendance rosters, dates and times of trainings, and certifications of training compliance.
An employer must advise employees who are found abusing substances about resources available to evaluate and resolve problems associated with drug use or alcohol misuse, even when a company policy allows for the termination of employment. If an employee is permitted to return to work (under a “second chance” policy), it is the substance abuse professional’s (SAP) responsibility to ensure that the employee is not a threat to public safety. Because of this there are many regulations as to the SAP requirements, qualifications, roles, responsibilities, and procedures. Employers can also implement Employee Assistance Programs (EAP) as a way to address substance abuse issues before they become a problem in the workplace. While FTA does not require employers to provide or pay for rehabilitation or treatment programs, they are often an integral part of substance abuse programs.
U.S. DOT regulations in Part 40 establish qualifications for laboratories and personnel involved in conducting tests and reviewing results. Only testing laboratories that have been certified by the U.S. Department of Health and Human Services (DHHS) under the National Laboratory Certification Program (NLCP) are qualified to conduct U.S. DOT drug testing (49 CFR Part 40, Subpart F). Individuals who collect urine or oral fluid (at the time of this writing, oral fluid collection has been approved by U.S. DOT as a collection method, but at least two laboratories need to be approved by the U.S. Department of Health and Human Services (DHHS) before oral fluid testing can begin) specimens must meet training requirements detailed under 49 CFR Part 40, Subpart C, and those who conduct alcohol tests must be certified technicians as detailed in Subpart J. Only a licensed physician can serve as the Medical Review Officer (MRO) who reviews and verifies test results. Minimum qualifications for SAPs are stated in 49 CFR Part 40, Subpart O. Transit agencies are responsible for verifying that the testing laboratory and personnel engaged in testing meet the U.S. DOT qualifications.
Employers subject to Part 655 must submit reports to FTA’s Drug and Alcohol Management Information System (MIS) reporting system. Proper U.S. DOT forms must be used, the forms must be completed correctly, the records must be stored in a secure location with limited access, and the records must be maintained for the required amount of time. Both U.S. DOT and FTA have requirements for employers and service agents on what documentation should be kept and for how long. The following records must be kept:
The retention period begins on the record creation date, and there are requirements specific to each type of document. For a checklist of retention periods, see 49 CFR Part 655, Section 655.71.
Note that employers that conduct tests under their own authority (i.e., that are beyond the testing required by U.S. DOT/FTA rules) must not use U.S. DOT forms for these tests.
Part 40 requires each employer to check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties. This applies only to employees who would begin performing safety-sensitive duties for the organization for the first time, including new hires as well as employees seeking to transfer into a safety-sensitive position. The employer must obtain written consent from the employee to request their drug and alcohol testing records from U.S. DOT-regulated employers who employed them within the previous two years. For details about this requirement, see 49 CFR Section 40.25.
FTA recipients and subrecipients must annually certify compliance with Part 655. Rural transit systems do not certify directly through FTA, but rather through their state. The state should ask for certification of compliance either through an annual grant submission or through a separate letter. A compliance self-assessment checklist can be downloaded from the Drug and Alcohol Tools and Resources page on the FTA web site.
If a transit agency fails to implement or properly administer the required program components, it can lose FTA funding.
Although some states have passed legislation to permit legal use of medical and/or recreational marijuana, leaf-based marijuana remains a federally-banned and tested substance for safety-sensitive employees. Safety-sensitive employees must be tested for marijuana use under FTA regulations regardless of local or state ordinances/laws allowing such use. Use of "medical marijuana" does not constitute a valid medical explanation under federal law and will be considered a positive drug test result.
The U.S. DOT issued a notice on recreational marijuana as well as a notice on medical marijuana reaffirming the prohibition of use of marijuana by safety-sensitive transportation employees.
Whether or not a drug is legal or illegal, if its use impairs the ability to be fit for duty and to safely perform the functions of a job, an employee whose performance is impaired is a safety risk. The Federal Motor Carrier Safety Administration (FMCSA) regulations include requirements related to fitness for duty requirements for commercial vehicle drivers in 49 CFR Part 392. Section 392.3, Ill or Fatigued Operator, prohibits operation of a commercial motor vehicle “while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.” Section 392.4, Drugs and Other Substances, prohibits being on duty and possessing, being under the influence of, or using not only the substances tested under 49 CFR Part 40, but also “any other substance, to a degree which renders the driver incapable of safely operating a motor vehicle.” An exception is allowed for “possession or use of a substance administered to a driver by or under the instructions of a licensed medical practitioner…who has advised the driver that the substance will not affect the driver's ability to safely operate a motor vehicle.”
As noted in Chapter 2 of FTA’s Best Practices Manual: FTA Drug and Alcohol Testing Program, some employers include optional provisions (which must be clearly identified as not being part of the U.S. DOT/FTA testing requirements) prohibiting and testing for other substances beyond those required by U.S. DOT/FTA and requiring a second urine or oral fluid specimen (at the time of this writing, oral fluid collection has been approved by U.S. DOT as a collection method, but at least two laboratories need to be approved by the U.S. Department of Health and Human Services (DHHS) before oral fluid testing can begin) for the additional tests. One example in this manual “’reserves the right’ to test, under its own authority, for any drugs that an employee is reasonably suspected of abusing.”
As a best practice, transit agencies are encouraged to establish and follow policies for fitness for duty and medical qualification. Indiana RTAP has developed a sample medical qualification policy which can be downloaded from the Indiana RTAP web site.
Although the FTA regulations do not require a policy on prescription and over-the-counter medications, as a best practice, transit agencies are encouraged to address these legal medications which can impair an individual’s ability to perform safety-sensitive functions. For more information, see FTA Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit (February 2019) and FTA’s Prescription and Over-the-Counter Medications Tool Kit (February 2012).
The Prescription and Over-the-Counter Medications Tool Kit and as well as other FTA tools and best practice resources can be downloaded from the FTA web site.
In addition to the sample medical qualification policy mentioned above, Indiana RTAP has also developed a sample prescription and over-the-counter medications policy which also can be downloaded.
The need to remove drivers from service for random testing should be factored into staffing levels needed to maintain operations. Having additional back-up drivers on call can be invaluable in the event an employee tests positively, is removed from service for reasonable suspicion testing, or is otherwise unfit for duty.
March 13, 2024
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