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

provides an employer with the discretion to administer a pre-employment drug test
anytime before the employee first performs a safety-sensitive function. FTA also
believes the 90-day period is reasonable. It gives the employer the discretion to decide
whether or not the covered employee is retained in the random pool during his or her
absence. If the employee is retained in the random pool, then pre-employment testing is
not required. In determining whether to retain the employee in the random pool, one
consideration is the likelihood of the employee’s return to perform safety-sensitive
functions.
B. Pre-Employment Alcohol Testing (§655.42).
FTA noted in the NPRM that its pre-employment alcohol testing requirements
were suspended due to a court decision and subsequent legislation. Most commenters
indicated that FTA’s new rule should also omit the pre-employment alcohol testing
provisions, primarily because alcohol consumption is a legal activity. Others indicated
that since pre-employment testing would not be conducted under FTA authority, this
section should not be included in the final rule.
FTA Response. The NPRM language is included in the final rule to conform with
the other DOT agency drug and alcohol testing programs. All six DOT agencies with
testing programs are adding this section to their respective rules. This section allows, but
does not require, employers to conduct pre-employment alcohol testing. If an employer
chooses to conduct pre-employment alcohol testing, the employer must conduct the
testing in accordance with all of the requirements of 49 CFR Part 40.
C. Reasonable Suspicion Testing (§ 655.43)
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