DOT Direct Observation Drug Testing Delayed
September 9, 2008
Last month, we reported that effective August 25, 2008, the U.S. Department of Transportation (DOT) would be amending certain provisions of its drug testing procedures that apply to transportation employees in the aviation, motor carrier, rail, transit, maritime and pipeline industries. In particular, our alert highlighted that the amended regulations require direct observation of all return-to-duty and follow-up drug tests. Our alert also focused on the novel requirement that employees expose themselves to an observer before providing any directly observed specimen. After criticism and a lawsuit filed by transportation unions and trade associations, the DOT has announced that the effective date of the expanded direct observation requirement for return-to-duty and follow-up drug testing will be delayed until at least November 1, 2008, but the remainder of the new rule will remain in effect.
Strong Objections to Direct Observation for Return-to-Duty and Follow-Up Testing
Following the release of our alert, several parties, including the Transportation Trades Department (TTD) of the AFL-CIO, the Association of American Railroads and the Air Transport Association, submitted petitions and letters to the DOT requesting that the agency postpone and/or reconsider the regulation requiring employees to submit to return-to-duty and follow-up drug testing under direct observation. In requesting that the DOT not implement this rule, the petitioners focused on employees’ right to privacy in the collection of specimen samples. They argued that the DOT had not shown that employees were actually using prosthetic devices to cheat on drug tests nor had the agency provided another justification for the amended regulation. The petitioners also stated that the DOT’s notice requesting comments on the new regulations did not contain specifics concerning the direct observation proposal.
Possible Fourth Amendment Violation
On August 13, 2008, several transportation unions filed suit seeking to block enforcement of the amended regulations relating to direct observation testing. In their lawsuit, the unions alleged that the regulation violates the Fourth Amendment’s protection against unreasonable searches, that it was issued without proper notice, and that it is arbitrary and capricious.
On August 26, the DOT announced that it will delay the effective date of the direct observation requirement for all return-to-duty and follow-up drug tests (Section 40.67(b)) to November 1, 2008. The DOT is also requesting comments concerning this section of the proposed rule by September 25. But the remainder of the revised regulation that became effective on August 25 remains in effect. Thus, in situations in which employees were previously required to submit to drug tests under direct observation, all observers are now required to carry out the anti-prosthetic device procedure, meaning they must ensure that employees raise their shirts, blouses or dresses/skirts above the waist and lower their pants and underpants to show the observer they are not using a prosthetic device.
In response to criticism by transportation industry and labor groups, the DOT stated that these countermeasures are needed to respond to “the by-now well-recognized availability of substances and devices for substituting or adulterating specimens,” particularly “in situations in which there is a heightened incentive to cheat.” The DOT further stated that this incentive clearly exists for employees who are returning to safety sensitive positions after positive tests because such employees are “aware that they must test negative on all [return-to-duty] and [follow-up] tests in order to regain or retain their ability to perform safety-sensitive functions.” According to the DOT, given the greater opportunities to cheat on drug tests, the new rule “is appropriate to strike the balance between the Department’s interests in safety and program integrity and employees’ interest in privacy at a different point than it did two decades ago.” Nevertheless, the DOT agreed to seek comments on Section 40.67(b) and delay the effective date of the regulation because the notice of proposed rulemaking had not specifically requested comments on a proposal to make direct observation testing mandatory, rather than discretionary, for return-to-duty and follow-up testing.
The DOT will review and respond to comments that the agency receives concerning Section 40.67(b). The DOT will then reconsider the regulation, and may retain, eliminate, or modify it. We will continue to keep you up-to-date concerning the requirements for return-to-duty and follow-up drug testing as the DOT makes its decision concerning the amended regulation.
For more information, contact:
Naomi Katz
312.578.6581
naomi.katz@hklaw.com
toll free: 1.888.688.8500
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