Labor & Employment Law — 12/05/08

DOT direct observation of all return-to-duty and follow-up urine tests optional

In order to comply with a court ordered stay from the District of Columbia Circuit Court of Appeals, the US Department of Transportation (DOT) is again making its workplace drug and alcohol testing regulations (codified at 49 CFR §40.67(b)) that subject transportation industry employees to direct observation during drug tests conducted when the worker returns to work after a positive drug test and during follow-up drug tests optional rather than mandatory, according to an announcement published in the November 20, 2008, Federal Register (73 FR 70283).

BNSF Railway and eight rail labor unions filed suit on August 13 challenging DOT's regulation ( BNSF Railway Co v Dep't of Transp, DCCir, No 08-1264). The regulation, which took effect August 25, mandated that under the mandatory direct observation method employees must "raise their shirts, blouses, or dresses/skirts above the waist, and lower their pants and underpants, to show the observer, by turning around, that they do not have a prosthetic device on their person." Therefore, after August 25, employers that choose to use direct observation for follow-up and return-to-duty drug testing must follow the additional procedure of requiring employees to raise and lower their clothing to guard against the use of prosthetic devices.

The DC Circuit granted a temporary administrative stay on October 31 to allow more time for the court to consider the request for stay. But on November 12, the court issued a further order to stay the effectiveness of the section. This stay will remain in effect until the court issues a decision on the merits of petitioners' challenge to the provisions of 40.67(b). Other aspects of the regulation, including checking for prosthetic and other devices used to carry "clean" urine and urine substitutes will remain in effect. The revised section of 40.67(b), as issued by DOT as a final rule on June 25, 2008, has been removed from the Code of Federal Regulations in order to comply with the court's stay, and the prior version of 49 CFR 40.67(b), which DOT has reinstated, will remain in effect until further notice.

Under current regulations, only transportation employees whose specimens appear to show signs of tampering are required to provide urine specimens while being observed; observation is discretionary for return-to-duty and follow-up tests. Observed collections are conducted by individuals of the same-sex collectors.

The Federal Register notice can be found at: http://edocket.access.gpo.gov/2008/pdf/E8-27617.pdf.

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