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Sunday, August 17, 2008

New drug testing law

New DOT Drug and Alcohol Testing Regulations: Changes Coming

Reprint - Opelika-Auburn News – Sunday, August 17, 2008(Business Section)

Effective August 25, 2008, certain newly-created U.S. Department of Transportation (“DOT”) drug and alcohol testing regulations under 49 C.F.R. Part 40 will be implemented. They contain new or revised guidance on issues related to adulterated, substituted, diluted, lab testing, MRO guidance and invalid urine specimens. East Alabama Employers of all DOT-regulated employees should prepare now to implement the following:

  • All return-to-duty (those drug tests following a violation of DOT rules before a driver can return to DOT safety-sensitive duty) and follow-up (usually 6 tests over 12 months) drug tests must be collected under the new direct observation standards.
  • The definition of “refusal to test” has been greatly expanded to include: 1) Admitting to the collector or MRO that the urine specimen was adulterated or substituted; 2) Possessing or wearing a device that could be used to hide a substituted urine specimen;
  • In the case of a directly observed collection, failing to follow the new collector/observer’s instructions to raise clothing above the waist, lower clothing and underpants, and to turn around to permit the observer to determine whether there is any device that could be used to allow the donor to substitute urine.
  • Several Part 40 definitions have been revised and new ones added.
  • Every DOT Drug and Alcohol Testing Policy is due to be reviewed and revised in accordance with these substantial regulatory changes.
The AFL-CIO’s Transportation Trades Department has asked the DOT to reconsider and stay implementation of the requirement that employees who previously received a positive test result for a banned drug provide urine specimens under direct observation as defined in the new regulation. Practical Counsel: Congress and the media have been harshly critical of the DOT for not taking effective steps to curb the rampant substitution of urine specimens by Truck Drivers, and this new regulation is the DOT’s reaction.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at