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Friday, July 31, 2009

New Direct Observation Effective August 31, 2009

DOT Drug Tests – New Direct Observation Effective August 31, 2009

Repirint O&A News 08/02/09
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 (DO) 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 in BNSF Railway Co. v. U.S. Dep’t of Transportation (D.C. Cir. May 15, 2009) disagreed, upheld the DOT, and found as follows:

1) DOT had presented voluminous evidence of the increased availability of products designed to beat a 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 presented 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: This DO drug testing rule is applicable to return-to-duty, safety-sensitive transportation industry employees who have already failed or refused to take a prior drug test. The start date for mandatory DO for return-to-duty and follow-up testing is August 31, 2009. All employees who go for return-to-duty and follow-up tests on and after the effective date must have their collections observed. This includes employees currently in follow-up testing programs who will still be in those programs on and after August 31st. All DOT policies which have not been upgraded since August 25, 2008 are most likely out of compliance and subject to DOT audits and fines of up to $10,000.

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