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

plaintiffs agreed that their positions were not safety-sensitive and consequently should not
be subject to FTA drug or alcohol testing.
On April 14, 1999, a unanimous panel of the 9 th Circuit reversed and sent the case back
to the trial court to review the designation of dispatchers as safety-sensitive workers. The
appeals court stated, “We do not know, from the record we have, whether the employees at
issue would pose a substantial immediate threat to public safety if impaired by drugs or
alcohol, or whether the procedure for testing them would be reasonably effective for
finding out if they are impaired, or whether the tests as performed were an undue invasion
of their privacy. Facts might be proved under the complaint that would entitle plaintiffs to
relief.” The employees challenging the testing have the burden of proving the case.
Until this matter is ultimately resolved, FTA grantees, subrecipients, (and their covered
contractors) must continue to implement FTA’s drug and alcohol testing regulations,
including those affecting dispatchers.
5. Random Testing – Federal Law Supercedes State Law
O’Brien v. MBTA
On December 4, 1998, the United States Court of Appeals for the First Circuit upheld a
federal District Court decision that permitted the Massachusetts Bay Transportation
authority (MBTA) to conduct random drug and alcohol testing of transit police. In this
case, O’Brien v. MBTA, two transit police officers contended that MBTA’s drug testing
program violated their rights under federal law and the Massachusetts Declaration of
Rights. The Court of Appeals concluded that by accepting federal transit assistance,
Massachusetts officials must abide by the conditions that Congress attached to them, one
of which mandates random drug and alcohol tests for employees who perform safetysensitive
functions. The Court of Appeals stated that because the Act includes an express
pre-emption provision, contrary state law could not stand as an obstacle to the testing
protocol.
6. Employee Reinstatement – ADA Discrimination Claim
Wilson v. SEPTA and TWU Philadelphia Local 234
Wilson v. SEPTA and TWU Philadelphia Local 234 was filed in federal District Court
in Philadelphia by a bus operator who was fired after twice testing positive for alcohol. He
alleged that his firing was discrimination under the Americans with Disabilities Act
(ADA). SEPTA (Southeastern Pennsylvania Transportation Authority) moved to dismiss
the complaint, arguing that the plaintiff was not a qualified individual with a disability at
the time SEPTA discharged him. In a ruling dated January 26, 1999, the court declined to
dismiss the complaint. The court found that the employee met the definition of “disabled”
for establishing a prima facie case of discrimination under the ADA in connection with his
discharge from SEPTA. The ultimate issue of whether the firing was disability
discrimination is yet to be determined by the court.
Chapter 2. Regulatory Overview 2-27 August 2002