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

Dear Mr. La Sala:

Thank you for your recent letter regarding the Federal random drug and alcohol testing requirement. I appreciate hearing from you on this important matter.

As you know, both the Department of Transportation (DOT) and the Federal Transit Administration (FTA) revised the drug and alcohol testing regulations effective August 1, 2001. Random drug testing, which is statutorily mandated, may occur anytime during an employee's shift, while random alcohol testing may only be conducted just before, during, or just after performing a safety-sensitive function. 49 CFR 655.45(i). FTA guidance notes that an employee must remain subject to random testing any time during his or her work shift, including just prior to the shift ending, as long as the employer has provided prior notification. (See FTA ltr dtd Nov.16, 1998, [www.fta.dot.gov]).

Your letter states that many of your members are experiencing problems with the random testing provision because an employee with previously scheduled commitments may be required to remain past his or her shift to complete the testing process. My staff has shared your concerns with the Department's Office of Drug and Alcohol Policy Compliance and its Assistant General Counsel for Regulation and Enforcement. Each office has reiterated that waiver of the random testing requirement is not permitted under the statute.

The statutory requirement to conduct random drug and alcohol testing is not subject to amendment by a collective bargaining agreement. However, within 49 CFR 655.45(g), an employer has limited discretion regarding the scheduling of random tests. Therefore, union and management are not precluded from negotiating a process for employees who provide advance, verifiable notice of scheduled medical or childcare commitments, to be tested no later than three hours before the shift ends. I must emphasize, however, that any negotiated process cannot excuse a covered employee from random testing once selected, nor should it extend to an employee who has not provided advance, verifiable notice of a previously scheduled commitment to the employer.

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