How do I handle the Notice by the FTA Administrator that
the random drug testing rate has been lowered to 25%?
- If a transit employer or third party administrator (TPA)
already performed a random selection for the first quarter/first
month (etc.) of this year, they can retain and test the employees
in that selection. They should then under-sample proportionately
throughout the remaining quarters/months in order to average out
their annual random drug testing level to 25%. Or,
- If a transit employer or third party administrator (TPA)
already performed a random selection for the first quarter/first
month (etc.) of this year then they can perform a new selection
at the 25% testing level and excuse all those untested on the
previous list due to "FTA Rate Setting Change".
Do I need to change my policy?
- If a transit employer's policy states that they will test at
the Federal minimum, and they then identify that minimum as 50%,
that should be changed in the policy. The policy can reference
that they will test at the FTA annual minimum random testing
rates as set in the Federal Register as per 49 CFR Part
655.45(b).
- If their policy says that they test at the Federal minimum, but that minimum
is NOT listed, they can simply change their practices and adjust to 25%. Note
that the random testing rates are minimums. Agencies are not required to lower
their testing rate at all.
What if I have safety-sensitive employees covered by both
FTA and FMCSA since now there are different testing thresholds
for random drug testing?
49 CFR Part 655.45(k) states:
- If an employer is required to conduct random drug and
alcohol testing under the drug and alcohol testing rules of more
than one DOT agency, the employer may -
- Establish separate pools for random selection, with each
pool containing the covered employees who are subject to testing
at the same required rate; or
- Randomly select such employees for testing at the highest
percentage rate established for the calendar year by any DOT
agency to which the employer is subject.
In addition, there was guidance published in the
Implementation Guidelines for Drug & Alcohol Regulations
in Mass Transit (pgs. 2-4) that applies to contractors but
also may be applied to municipalities/counties/etc. with FTA and
FMCSA regulated employees commingled. This states as follows:
Contractors Covered Under the Regulations of Other Modes. Many
transit systems contract with safety-sensitive contractors who
are already required to comply with the drug and alcohol testing
regulations of other modes (i.e., FMCSA). If these contractors
are able to segregate the employees who provide transit service
from those who perform safety-sensitive functions for the other
modes, the employer is required to establish programs for each
group of employees allowing for the corresponding differences in
the modal rules.
However, if the contractor's employees perform
safety-sensitive functions for both transit and another mode, the
employer must determine which modal administration regulates the
majority (>50 percent) of the employees' who perform
safety-sensitive functions covered under the USDOT. Once
determined, the employee will be subject to pre-employment and
random testing under the regulatory authority of the primary
modal administration. The assignment of regulatory authority for
reasonable suspicion and post-accident testing will depend on the
function an employee is performing at the time of the
incident/accident. Return-to-duty and follow-up tests will be
assigned to the modal administration that generated the initial
positive test result.
Note:
It is important for transit employers to remember that the
only thing that has changed is that transit systems have the
OPTION to lower their random drug testing to no less than 25%. This in no way means that any system has to change anything, and
it is not a directive to lower the rate. The regulations require
transit systems to set a random testing rate, and they will be
compliant if they have any number over 25% for drugs.
