When Must FTA Transit Employers Conduct Post-Accident Testing?

FTA post-accident testing for transit employers is set out in 49 CFR 655.44. Two features shape it: the accident definition depends on the type of transit vehicle, and an employer that decides not to test must document that decision in detail.

What counts as an accident. An occurrence associated with the operation of a vehicle in which:

• A person dies
• A person is injured and immediately receives medical treatment away from the scene
• For a bus, electric bus, van or automobile, any vehicle has disabling damage and is towed from the scene
• For a rail car, trolley car, trolley bus or vessel, the transit vehicle is removed from operation (49 CFR 655.4)

Documenting a decision not to test. A decision not to test is based on the employer's determination, using the best available information at the time of the determination, that the employee's performance could not have contributed to the accident. The decision must be documented in detail, including the decision-making process used (49 CFR 655.44(d)).

Fatal accidents. The employer tests each surviving covered employee operating the transit vehicle at the time (49 CFR 655.44(a)(1)(i)). An operator tested under the FMCSA fatal accident rule in 49 CFR 382.303 is not retested under this section. The employer also tests any other covered employee whose performance could have contributed to the accident, as determined using the best information available at the time of the decision (49 CFR 655.44(a)(1)(ii)).

Nonfatal accidents. The employer tests the operator unless it determines, using the best information available at the time of the decision, that the operator's performance can be completely discounted as a contributing factor. It also tests any other covered employee whose performance could have contributed (49 CFR 655.44(a)(2)(i)). FTA testing does not depend on a citation.

Time limits.

• Drugs. As soon as practicable but within 32 hours of the accident (49 CFR 655.44(b))
• Alcohol. If not done within 2 hours, the employer records why. After 8 hours, the employer stops trying and keeps the record (49 CFR 655.44(a)(2)(ii))

Employee duties. An employee who fails to remain readily available, including failing to tell the employer where he or she is after leaving the scene before testing, may be treated as having refused the test (49 CFR 655.44(c)). Medical care is not delayed for testing (49 CFR 655.44(e)).

Police tests. Tests by federal, state or local officials with independent authority count only when the employer cannot complete its own test in the required time and obtains the results (49 CFR 655.44(f)).

Post-accident testing by agency. Separate pages cover the FMCSA post-accident rule, the FAA post-accident rule, the PHMSA post-accident rule and the FRA post-accident rule.