Implementation Guidelines - Federal Transit Administration - U.S. ...

confidentiality and information disclosure
[§40.311(g)].
Section 2. CONFIDENTIALITY
AND ACCESS TO RECORDS
The FTA regulation [§655.73] states that
test results may be released only when
required by regulation or when the employee
provides specific written consent, which
means that the employee must indicate in
his/her written statement the specific
information that is to be released, the
identity of the person to which the
information is to be released, and the
specified time period. Vague, ill-defined,
open-ended, or blanket statements of release
are prohibited. The following circumstances
require specific written consent:
• Employers and service agents shall
release information or copies of
records regarding an employee’s test
results to a third party only as
directed by specific written consent
of the employee.
• Upon written request, employers
must promptly provide any employee
with any and all records pertaining to
his/her use of drugs or misuse of
alcohol including test results. The
only record that must be withheld
from the employee is the SAP
recommended follow-up testing plan
[§40.329]. The release of
information to the employee cannot
be delayed pending payment for
reproduction.
• Records must be released to
subsequent employers upon receipt
of a request that is accompanied by a
written consent from the employee.
The employer should release only
the specific information for the
specific time period that is delineated
in the request and should only be
released to the person expressly
authorized to receive the information
identified on the request.
Specific written consent is not required
in the following circumstances:
• Employers and service agents may
disclose information related to a test
result to the employee or the
decision-maker in a lawsuit (e.g.,
wrongful discharge), grievance (e.g.,
arbitration), or other proceeding
initiated by, or on behalf of, the
employee tested. This includes
worker’s compensation,
unemployment compensation, or
other proceeding related to a benefit
sought by the employee when the
drug or alcohol test results are
pertinent to the proceeding
[§40.323(a)(1)]. The information
may only be released to parties to the
proceeding.
• Employers and service agents may
release test information in a criminal
or civil action when a court of
competent jurisdiction determines
that it applies to the case and issues
an order directing the employer to
produce the information. The
employer may release the
information only with a binding
stipulation that the decision-maker to
whom it is released will make it
available only to parties to the
proceeding [§40.323(a)(2)].
• Employers and their service agents
must release information to the
National Transportation Safety
Board (NTSB) on any post-accident
test performed for an accident under
NTSB investigation.
Chapter 10. Administrative Requirements 10-7 August 2002