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Monday, August 31, 2009

Mandatory Direct Observation for DOT Return-to-Duty and Follow-Up Testing
By Tommy Eden, Attorney
Effective today, August 31, 2009, Direct Observation collections are mandatory for all DOT Return-to-Duty and Follow-Up drug testing.
On May 15, 2009, the United States Court of Appeals for the District of Columbia Circuit unanimously upheld DOT’s direct observation drug testing rules applicable to return-to-duty, safety-sensitive transportation industry employees who have already failed or refused to take a prior drug test. The Court found that the rules were not arbitrary or capricious and did not violate the Fourth Amendment constitutional prohibition on unreasonable searches and seizures.
Because there was an opportunity for the parties to seek rehearing of the Court’s ruling, the Court’s stay of the direct observation rule continued in effect. The Court issued a Mandate on July 1, 2009, which finalized the decision, thereby lifting the stay on Direct Observation for return-to duty and follow-up testing. We published an amendment to Part 40.67(b) on July 30, 2009, reinstating the Direct Observation requirement, effective August 31, 2009.
As with other DOT Direct Observation collections conducted since August 25, 1998, DOT Return-to-Duty and Follow-up drug testing will now require that a same gender observer check for prosthetic and other devices that could be used to cheat a drug test. This is in addition to the observer’s subsequently watching the employee urinate into the collection container.
DOT’s 49 CFR Part 40 directly observed collections are authorized and required only when:
● The employee attempts to tamper with his or her specimen at the collection site.
o The specimen temperature is outside the acceptable range;
o The specimen shows signs of tampering ~ unusual color / odor / characteristic; or
o The collector finds an item in the employee’s pockets or wallet which appears to be brought into the site to contaminate a specimen; or the collector notes conduct suggesting tampering.
● The Medical Review Officer (MRO) orders the direct observation because:
o The employee has no legitimate medical reason for certain atypical laboratory results; or
o The employee’s positive or refusal [adulterated / substituted] test result had to be cancelled because the split specimen test could not be performed (for example, the split was not collected).
● The test is a Follow-Up test or a Return-to-Duty test.
Below are the following downloadable documents from the DOT:
Practical Counsel: All DOT policies and employee sign offs need to upgraded to mirror these mandated changes and avoid DOT fines of up to $10,000 per violation.

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