Mr. Jim La Sala
Office of the International President
Amalgamated Transit Union
5025 Wisconsin Ave., N.W.
Washington, DC 20016-4139

Dear Mr. La Sala:

Thank you for your letter requesting clarification as to what constitutes the "testing site" under the drug and alcohol testing regulations issued by the Department of Transportation (the Department)and the Federal Transit Administration (49 CFR Parts 40 and 655, respectively).

Your letter states that an Amalgamated Transit Union (ATU) member presented herself for testing at a clinic and, prior to the beginning of the collection process, left the clinic's interior for a two-minute smoke break after she was advised not to leave the premises. You also indicate that she remained just outside the reception area where she was visible to anyone in the reception area. Afterwards, she was found to have refused a drug test under 49 CFR § 40.191(a)(2) for having failed to remain at the testing site until the testing process was complete.

The Department's Office of Drug and Alcohol Policy Compliance has published a brochure entitled "Urine Specimen Collection Guidelines" (August 2001, Version 1.01), which is available on the Department's website at [www.dot.gov/ost/dapc]. The note on page six of that publication reads in part:

The testing site is that portion of the facility where the collector performs the paper work, seals the specimens, and where urination occurs. It does not necessarily include the total physical facility (e.g., clinic). . . .

The Department believes that, depending on the physical configuration of a particular facility, the reception area may not be part of the "testing site," such that leaving the reception area momentarily would necessarily constitute leaving the testing site.

The more important point is that § 40.191(a)(2) is intended to address a situation in which an employee engages in conduct that amounts to a refusal to take part in, or an obstruction of, the testing process. For example, if an employee leaves any part of the facility and goes home before finishing the test, the employee's action has prevented the completion of the testing process. Likewise, if an employee, intentionally or unintentionally, goes someplace where he or she cannot be found when it comes time to conduct part of the testing process, the employee frustrates the testing process.

Assuming the facts as stated in your letter, the ATU member did nothing that would obstruct or delay the testing process. She went outside for a very brief period, told clinic personnel where she was going, and remained in close proximity to the reception area and visible through the facility door. She returned of her own volition. Even had testing facility personnel needed to summon her inside before she finished her smoke, they could easily and quickly have done so, and there is nothing to suggest she would not have promptly complied.

Under these circumstances, we do not believe it would be appropriate to regard this employee as having refused to take a drug test as provided in § 40.191(a)(2). The Department's Office of Drug and Alcohol Policy Compliance has reviewed this interpretation and agrees.

If you have additional questions, please contact Bruce Walker of my staff at: (202) 366-4011.