[Nome Dickerson]

o Random and Reasonable Suspicion alcohol tests can only be conducted just before, during, or just after the performance of safety-sensitive functions.
o Random and Reasonable Suspicion drug tests, however, can be conducted any time the employee is on duty (regardless of if the employee is performing a safety-sensitive function or not).
o The FTA regulations require this difference in when an employer may conduct drug tests as opposed to alcohol tests.
o Generally, because alcohol is a legal substance, USDOT-FTA (as a regulatory entity) has a limited legal authority of WHEN they can authorize tests on individuals for alcohol as opposed to drugs.
o See 49 CFR Part 655.43(c) and Part 655.45(i).

[Nome Dickerson]

This answer boils down to a bigger root cause of compliance issues in USDOT drug and alcohol compliance: Testing Authority/Applicability.

When an employer sends an employee for a USDOT-FTA drug/alcohol test (regardless of the reason for the test, such as Pre-employment, Post-accident, Random, etc.), the employer is essentially acting as the “arm” of USDOT-FTA. That is, when an employee is sent for a USDOT-FTA test, it is because that test has been authorized and required by USDOT-FTA, as opposed to the employer themselves.

To send an employee for a USDOT-FTA test when that test is not authorized or required by USDOT-FTA regulations, the employer is in some way misrepresenting the Federal regulation as well as applying the Federal regulation when not authorized.

When talking specifically about FTA post-accident testing, an employer is required to send an employee for a USDOT-FTA post-accident test if any of the “Three Thresholds” are met (see 49 CFR Part 655.44).

The FTA post-accident test is only authorized by the federal regulation in certain circumstances (The “three thresholds”; 49 CFR Part 655.44)

If none of the FTA’s “Three Thresholds” are met following an accident, not only is the employer not required to send the employee for the USDOT-FTA post-accident testing, the employer is prohibited from sending them for a USDOT-FTA post-accident test.

If an employer wants to include in their drug & alcohol policy some type of language such as “ACME Transit reserves the right to conduct NON-DOT post-accident testing following an accident which does not require USDOT-FTA post-accident testing”, then they may be able to conduct a NON-DOT post-accident test under their own authority (on NON-DOT forms).

However, the transit system must still have a procedure in place to determine after every accident, whether or not the USDOT-FTA thresholds were met.

Additionally, if an agency decides to implement some type of NON-DOT post-accident testing procedures into their policy, they should absolutely seek legal consultation to ensure no other laws prohibit/limit this action.

[Nome Dickerson]

• Bus models that were tested prior to October 31st, 2016 are not subject to the Pass/Fail requirement. This effectively means that bus reports for buses that initiated testing prior to that date will not be rescored under Pass/Fail.
• Partial testing that is performed after October 31st, 2016 on buses that initiated testing prior to October 31st, 2016 will not be Pass/Fail and will not be scored as the partial test results effectively amend the original test report that was not subject to pass/Fail.
• Bus Models that initiated testing after October 31st, 2016 are subject to Pass/Fail and any subsequent partial testing on these models is also subject to the Pass/Fail requirement.

[Nome Dickerson]

I believe the changes you describe can be made under the changes clause. Yes you will need to do an ICE and a cost or price analysis for each of the changes. You may also want to review the Buy America calculations to determine if your changes affect compliance with the regulations.

[Nome Dickerson]

FTA’s EEO Circular 4704.1A provides guidance to FTA grant recipients necessary to carry out Equal Employment Opportunity requirements and prepare EEO Program Plans.

• EEO Circular (PDF)
• Sample Utilization Analysis Chart (Excel)
• Sample Employment Practices Chart (Excel)
• Federal Register notice
• Letter to Grantees: Updated EEO Circular and Certification Questionnaire Information

FTA requires recipients meeting the threshold below to prepare an EEO Program Plan. The program is a detailed, results-oriented set of procedures designed to ensure recipients meet EEO requirements in their agencies’ employment-related matters.

Threshold Requirements

Any FTA applicant, recipient, subrecipient, and contractor who meets both of the following threshold requirements must implement all of the EEO Program elements:

• Employs 100 or more transit-related employees, and
• Requests or receives capital or operating assistance in excess of $1 million in the previous Federal fiscal year, or requests or receives planning assistance in excess of $250,000 in the previous Federal fiscal year.

Agencies that have between 50–99 transit-related employees are required to prepare and maintain an EEO Program that includes the statement of policy, dissemination plan, designation of personnel, assessment of employment practices, and a monitoring and reporting system.

EEO Program Components

• Statement of Policy
• Dissemination
• Designation of Personnel Responsibility
• Utilization Analysis
• Goals and Timetables
• Assessment of Employment Practices
• Monitoring and Reporting

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