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:
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.
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.