X

Drug & Alcohol Programs

Introduction

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 subrecipents 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:

Program Requirements Overview

FTA regulations require that impacted transit systems develop a drug and alcohol testing program with the following elements: 

  • Formally-adopted drug and alcohol policy statement
  • Training and education program
  • Drug and alcohol testing procedures
  • Procedures for referring employees who test positively to Substance Abuse Professional

The regulations also establish:

  • Qualifications of testing facilities and service agent personnel
  • Recordkeeping and reporting requirements
  • A requirement to check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties
  • Compliance as a condition for FTA funding

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 2017, is a helpful resource with information about the requirements, including frequently asked questions and links to a host of federal regulations and resources.

Drug and Alcohol Policy Statement

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.

  • The identity of the person, office, branch and/or position designated by the employer to answer employee questions about the employer's anti-drug use and alcohol misuse programs.  FTA’s 2009 Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit recommends that each transit employer designate a Drug and Alcohol Program Manager (DAPM), and it is best if the person chosen already performs administrative duties such as human resources, personnel or risk management.  The DAPM will be the primary contact for any issues or questions related to drug and alcohol policies, and the DAPM is responsible for record keeping, the testing process, preparation of the annual Management Information System (MIS) report, and serving as the Designated Employee Representative (DER) and liaison with the drug and alcohol testing service agents.
  • The categories of employees that are subject to testing.  The policy must include a list of the actual positions/categories covered at the organization.  Part 655 requires that all individuals who perform or will perform a safety-sensitive function be tested. To determine who is a safety-sensitive employee, you should consider the full list of tasks an employee performs each day and not rely solely on job titles.  As defined in Part 655, the following are “safety-sensitive” functions:
    • Operating a revenue service vehicle, including when not in revenue service.
    • Operating a nonrevenue service vehicle that requires a driver to hold a Commercial Driver’s License (CDL).
    • Controlling dispatch or movement of a revenue service vehicle.  Note: whether or not dispatchers could impact public safety should be determined by each transit system based on the tasks they perform.
    • Maintaining (including repairs, overhaul and rebuilding) a revenue service vehicle or equipment used in revenue service.  (However, if maintenance services are contracted and the transit agency receives Section 5311 or is in an area of less than 200,000 in population, the contracted maintenance employees are not subject to this requirement.)
    • Carrying a firearm for security purposes.

See Chapter 2, Section 3 of FTA’s 2009 Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit for guidance on what are (and aren’t) safety-sensitive functions.

  • A specific description of what is considered prohibited behavior and conduct:
    • The consumption of the following drugs is prohibited at all times: marijuana, cocaine, amphetamines, opioids, and phencyclidine (PCP).  
    • The consumption of alcohol is prohibited while on duty or on call to perform safety-sensitive functions or within four hours prior to perform safety-sensitive functions. If an employee is involved in an accident that requires post-accident alcohol testing (described later in this section), they are also prohibited from consuming alcohol for eight hours following the accident or until the test is completed.  An employee with a blood alcohol concentration of 0.04 or more is prohibited from performing a safety-sensitive function. An employee with blood alcohol concentration of 0.02 to 0.039 must also be removed from the safety-sensitive duty until they test below 0.02.
    • The specific circumstances under which a covered employee will be tested for prohibited drugs or alcohol misuse. Five kinds of tests are required by Part 655:
    • Pre-employment (drug test only) – All applicants or employees are required to submit to a drug test and produce a verified negative result before being placed in a safety-sensitive position.  This keeps those with a history of high-risk behavior (such as drug use) out of a transit system.   Alcohol testing is not required at this point; however, employers may choose to also perform this test. 
    • Reasonable suspicion – If a safety-sensitive employee has exhibited signs of drug use or alcohol misuse through appearance, behavior, speech or body odor, he/she may be subjected to both a drug and alcohol test.  Any person who is requesting the reasonable suspicion test must be trained in the facts, circumstances, physical evidence, physical signs and symptoms, and behavior that are associated with use, and they must also be trained in how to approach an employee for testing.  See the bullet on supervisor training in the training and education program section above. 
    • Post-accident – This type of testing must occur after the operation of a revenue service vehicle is associated with the loss of life.  It must also be conducted following all other nonfatal accidents unless the operator’s performance can be completely discounted as a contributing factor. In order for an incident to be considered an accident under this category, any of the following must take place:
      • an individual dies
      • an injured individual receives medical treatment away from the scene of the accident
      • a public transit bus, electric bus, van or automobile incurs disabling damage and must be towed away from the scene by another vehicle
      • a public transit rail car, trolley car, trolley bus or vessel is removed from service 

Tests should be administered as soon after the accident as possible, and no later than 8 hours after for alcohol or 32 hours after for drugs.    

  • Random – This is required of all safety-sensitive employees, and it acts as a strong deterrent against employees beginning or continuing prohibited drug use and alcohol misuse.  Random tests must be spread reasonably throughout the calendar year and conducted at all times of day when safety-sensitive functions are performed, and employees notified of selection for random drug or random alcohol testing must proceed to the test site immediately. The system by which employees are randomly selected should be scientific and there should be no inherent or perceived bias in the process.  Recommended methods include the use of a random-number table or a computer-based random-number generator (each number matched to an employee’s identification number).  Methods to avoid include picking numbers from a hat or other manual techniques.  The annual testing rate is determined by FTA based on positive test rates during the two preceding years.  For example, during calendar year 2019, the number of random drug tests conducted per year must equal at least 50%, and for alcohol at least 10%, of the total number of employees in the test pool.  These testing rates could change, and transit organizations need to follow whatever rates are published by FTA.  Due to the sensitive nature of random testing, it is important to assure the selected employee that she/he was not singled out for a particular reason. Many very small rural systems enroll in a drug testing consortium. This enlarges the pool and reduces the likelihood that the same employee will be picked over and over again.
  • Return-to-duty – For transit systems that have a “second chance” policy rather than a “zero  tolerance” policy (see note below), before an employee can return to work after a positive test or refusal to test, he/she must be evaluated by a Substance Abuse Professional (SAP) and pass a return-to-duty test.  Before the test is administered, the SAP must determine that the employee has followed all recommended rehabilitation steps.  While the employee may have only tested positive for drugs or alcohol, they must pass both a drug and alcohol test before returning to work.  Note that FTA does not require that an employer to allow employees to who test positive to return to work (“second chance” policy. Many transit agencies have a “zero tolerance” policy under which testing positive results in termination.
  • Follow-up – For transit systems that have a “second chance” policy, once an employee is permitted to return to duty, he/she will be subject to unannounced follow-up testing for at least 12 months (but no more than 60 months). A minimum of six tests should be conducted within the first 12-month period.  Employees who are subject to follow-up testing should also continue to be in the random testing pool, and also submit to tests as called upon in that process. 
  • The procedures that will be used to test for prohibited drugs and alcohol. The procedures should protect both the employee and the integrity of the testing process.  They should also safeguard the validity of the test results and ensure they are attributed to the correct employee. The testing procedures must comply with DOT regulations in Part 40. Part 40 requires testing for the following drugs only:
    • Marijuana metabolites
    • Cocaine metabolites
    • Amphetamines
    • Opioids
    • Phencyclidine (PCP) 

Note that in November 2017, U.S. DOT published a final rule for 49 CFR Part 40 that added four semi-synthetic opioids (hydrocodone, hydromorphone, oxycodone, and oxymorphone) to the drug testing panel (changing the former opiates category to opioids), and also made changes under the amphetamines category.  These changes took effect January 2018.  To read more about the currently required panel of drugs to be tested, see the January 2018 edition of the FTA Drug and Alcohol Regulation Updates newsletter and the November 2017 final rule for 49 CFR Part 40.

Also 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 requirement that all safety-sensitive employees will be tested for prohibited drugs and alcohol in accordance with Part 655.
  • A description of the types of behavior that constitute a refusal to test, stating that a refusal to test constitutes a violation of the employer’s policy.
  • A description of the consequences of testing positively or refusing to test. Testing positively for prohibits drugs or a blood alcohol concentration of 0.04 or more requires immediate removal from the safety-sensitive function and referral to a substance abuse professional. (If an organization has a “zero tolerance” policy, the employee would also be terminated.) A description of the consequences for an alcohol concentration of 0.02 or greater, but less than 0.04, is also required (removal from the safety-sensitive duty until testing below 0.02.
  • If an organization imposes any additional anti-drug use or alcohol elements that are not required by FTA regulations, employees must be informed that these additional elements are not required by 49 CFR Part 655.  As an example, the FTA manual notes that that organizations may to test non-safety-sensitive employees under their own authority, although these employees must be in a separate testing pool from safety-sensitive employees. And if an agency want to test for other types of drugs than the five required by DOT/FTA, this may only be done by collecting a separate urine specimen in addition to the FTA specimen, and the agency must notify the employee that this specimen is being tested under the organization’s authority.

The FTA website provides a checklist of items that must be included in the policy and a template for creating a policy.

Each aspect of the policy statement should be clearly defined and must be shared in writing with your employees and management staff. The agency should obtain signed acknowledgement of receipt of the policy from each employee.

Training and Education

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 your 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.   

  • Safety-sensitive employee training – This includes both general education and training components. 
  1. Each employer must display and distribute information about the effects of drugs and alcohol, and a community hotline phone number (if available in the community) for any employee that may be having difficulties with substance abuse.  Information for distribution can be obtained from an agency’s Employee Assistance Program (EAP - if the organization currently has one), and/or their health insurance carrier or local government mental health agencies. 
  2. Employers must also provide each safety-sensitive employee with a written notice of the organization’s drug and alcohol policies and testing procedures. 
  3. And, employers must provide a 60-minute training for safety-sensitive employees on the effects, signs and symptoms of drug use and alcohol misuse.  While it is required to provide one hour of training, it is suggested that employers take 2-3 hours to cover the necessary material.
  • Supervisor/company officer training – Training must be given to supervisors and others who are authorized to determine when it is appropriate to administer reasonable suspicion drug and/or alcohol tests.  Because only one supervisor’s/officer’s opinion is necessary to require a reasonable suspicion test, proper training is important.  Supervisors and others in this position are required to complete 120 minutes of training: 60 minutes on the physical, behavioral and performance indicators of probable drug use, and 60 minutes on the physical, behavioral and performance indicators of probable alcohol misuse.  As with employee training, it is recommended that employers exceed the required amount of training time.

Referral to a Rehabilitation and Treatment Program

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 he/she 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.

Qualifications of Testing Facilities and Service Agent Personnel

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 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.   

Recordkeeping and Reporting 

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 detailed checklist of retention periods, see Appendix B, pages 106-107 of the 2019 Implementation Guidelines for Drug and Alcohol Regulations in Public Transportation or 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.

Compliance as Condition of FTA Funding

FTA recipients and subrecipients must annual 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 FTA web site.     

If a transit agency fails to implement or properly administer the required program components, it can lose FTA funding.

Testing for Marijuana in States Where It Has Been Legalized

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.

Fitness for Duty Considerations

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 if 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 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 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 specimen 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.  The Indiana RTAP has developed a sample medical qualification policy which can be downloaded from the Indiana RTAP web site.  

Policy on Prescription and Over-the-Counter Medications

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 pages 5-5 to 5-6 of FTA Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit 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, the Indiana RTAP has also developed a sample prescription and over-the-counter medications policy which also can be downloaded. 

Staffing Levels to Accommodate Drug and Alcohol Testing Requirements

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.

Section Sources

Updated June 24, 2019