According to the Federal Transit Administration (FTA), there has been some confusion among transit employers as to the actions which can be taken against employees that test positive for alcohol at any level. The FTA has written “It is imperative employers know the regulation prohibits any action under the regulation against an employee based solely on confirmation test results showing an alcohol concentration less than 0.04. However, employers should also be aware there is nothing in the regulation prohibiting employers from acting under their own authority… as long as it is clear such action is…not considered a violation of the regulation.” The FTA also cautions employers that all actions taken under their own authority must be consistent with federal, state and local law.
Under the DOT, the FTA requires testing of employees that perform safety sensitive duties for both drugs and alcohol. Covered employers are prohibited from allowing an employee with an alcohol concentration of 0.04 or greater from performing safety sensitive duties (Section 655.31). Once an employer has received a confirmed positive test from the Breath Alcohol Technician (BAT), the employer must immediately remove the employee from safety sensitive work. The employee must complete the DOT Return to Duty process with a Substance Abuse Professional before being eligible to perform safety sensitive duties.
There is also a provision for other alcohol-related conduct and subsequent consequences (Section 655.35). Under the provision, when an FTA employee is found to have an alcohol concentration of 0.02 or greater, but less than 0.04 for an alcohol confirmation test, the employer is required to immediately but temporarily remove the employee from safety sensitive duties. Although not considered a positive test, the employer may not allow the employee to resume safety-sensitive duties until the start of the employee’s next regularly scheduled shift, but not less than eight hours following the test or until the employee’s alcohol concentration is less than 0.02.
Tests that yield a concentration lower than 0.02 is considered negative with no consequences under the regulation. Alcohol is a legal substance that can be found in many foods, personal care products and medicines. According to the FTA, levels less than 0.02 are considered by most experts to be equivalent to zero.
Source: “Blood Alcohol Content Greater than or Equal to 0.02, but Less than 0.04-Now What?” FTA Drug and Alcohol Regulation Updates, Issue 52, July 2013: 8.
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