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Friday, June 5, 2009

DOT Rule on Direct Observation

DOT Rule on Direct Observation of Particular Drug Tests Upheld

Recently, the United States Court of Appeals for the District of Columbia Circuit upheld a hotly debated U.S. Department of Transportation (DOT) rule mandating direct observation of employees giving urine specimens on return-to-duty and follow-up drug tests. BNSF Railway Co. v. U.S. Dep’t of Transportation (D.C. Cir. May 15, 2009).

On August 25, 2008 the DOT revised its drug and alcohol testing regulations (49 CFR Part 40) to stem the adulteration and substitution of urine specimens of regulated employees covered under the FMCSA, FAA, PHMSA, FRA, FTA and Coast Guard. Under this new DOT rule, all return-to-duty and follow-up drug tests are to be collected under direct observation. (49 CFR Part 40.67 “As the observer, you must request the employee to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show you, by turning around, that they do not have a prosthetic device. After you have determined that the employee does not have such a device, you may permit the employee to return clothing to its proper position for observed urination”). This new DOT direct observation regulation was challenged by over 20 transportation unions who argued that the revised regulation violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Court disagreed, upheld the DOT, and found as follows:

  1. DOT had marshaled voluminous evidence of the increased availability of products designed to defeat drug tests (see Google-“beat a drug test);
  2. DOT acted reasonably in limiting the direct observation rule to situations posing a high risk of cheating:
  3. Employees returning to work after drug treatment have a heightened incentive to cheat;
  4. DOT produced data that “the violation rate for return-to-duty and follow-up testing is two to four times higher than that of random testing;”
  5. The government’s interest in transportation safety is “compelling,” and given the number of creative cheating devices, “we have little difficulty concluding that direct observation furthers the government’s interest in effective drug testing.”
  6. Given the employees’ choice to work in a regulated industry, the employees’ prior positive test or refusal and the flood of cheating devices, the DOT “reasonably concluded that direct observation necessary to render these drug tests – needed to protect the traveling public from lethal hazards – effective.”
Practical Counsel: The DC Court’s prior stay of this regulation will remain in effect pending a request for rehearing. If upheld, the DOT will issue a notice in the Federal Register that the direct observation rule is effective. Alabama employers who implement an Alabama Drug Free Workplace Act Policy, which substantially follows the DOT testing protocol, can receive a 5% Workers Compensation premium discount.

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