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

A. Yes, except contract mechanics who perform work for system that serve populations of
200,000 or less, this includes Section 5311, 5307, and 5309 recipients.
Q. Transferees are included under pre-employment testing. When do you test a transfer
employee?
A. When an employee transfers from a non-safety-sensitive position to a safety-sensitive
position, he must be tested prior to the first time he performs a safety-sensitive function.
Q. Must a supervisor use personal observations as a determinant for a reasonable
suspicion referral?
A. Yes, the supervisor’s determination must be made based on specific, contemporaneous,
articulable observations concerning the appearance, behavior, speech, or body odor of the
employee. All these determinants are short-term indicators of prohibited drug use or alcohol
misuse. Hence, long-term indicators such as absenteeism may not be used as a basis for a
reasonable suspicion determination. Hearsay or observations made by others may not be a
determinate unless verified by the supervisor’s direct personal observations.
Q. After an accident, what is the employer’s immediate responsibility under the rule?
A. After a fatal accident, the employer must test the safety-sensitive employee (operator) on
duty in the vehicle at the time of the accident. Then the employer must determine whether to
test other safety-sensitive employees who may have contributed to the accident. After a
nonfatal accident, the employer must determine whether to test safety-sensitive employees on
duty in the vehicle at the time of the accident or who may have contributed to the accident.
In both fatal and nonfatal accidents, the employer must test the employee as soon as possible,
following an accident, but no later than 8 hours for alcohol and 32 hours for drugs.
Q. Can an employee leave the scene of an accident before taking a drug or alcohol test?
A. An employee may leave the scene of an accident, without being tested, as long as he remains
readily available for testing. That means that the supervisor must know the whereabouts of
the employee until he is tested and that the employee is available to be tested immediately
after being notified by the employer (within 32 hours of the accident for drug testing and/or 8
hours for alcohol testing).
Q. Does the rule apply to Indian tribal governments?
A. Yes. As a general matter, statutes apply to Indian nations or tribes unless: (1) the law
touches exclusive rights of self-governance in purely intramural matters; (2) the application
of the law would abrogate rights guaranteed by Indian treaties; or (3) there is proof by
legislative history or some other means that Congress intended the law not to apply to
Indians on their reservations. In this regard, there is no legislative history indicating
congressional intent not to apply the act to Indian tribes. FTA concludes that the act would
preempt Indian law.
Appendix G. Questions and Answers G-3 August 2002