Amended DOT Drug Testing Regulations: Employees Now Required to Expose Themselves
 
August 6, 2008
 
Naomi F. Katz- Chicago

Effective August 25, 2008, the U.S. Department of Transportation (DOT) is amending certain provisions of its drug testing procedures that apply to transportation employees in aviation, motor carrier, rail, transit, maritime and pipeline industries. Two amendments, in particular, are controversial:

1. Direct Observation

The DOT will now require that all urine samples for return-to-duty and follow-up drug tests required of individuals who previously violated the drug testing regulations be collected under direct observation. Before the amendments, such observed testing was only required under rare circumstances that suggested an employee had attempted to tamper with a specimen. Although direct-observation collections were previously optional for employers conducting return-to-duty and follow-up testing, few employers chose to impose this restriction.

2. Pre-Specimen Exposure

Even more shocking to many employees, they will also be required to expose themselves to the observer before providing a directly-observed specimen. Based on the DOT’s finding that a “wide variety of products for adulteration of urine” and “various mechanical devices are now readily available” in the marketplace, the observer must now request that an employee who is undergoing a directly-observed collection “raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show [the observer], by turning around, that they do not have a prosthetic device.” After this is done, the employee may return his or her clothing to its proper position and provide an observed specimen “in such a way that the observer can see the urine exiting directly from the individual into the collection container.” Although many employees may object to revealing their body parts before giving a specimen (even though the collector must be of the same sex as the individual providing the specimen), the DOT stated that “[c]hecking for devices prior to observed collections is the most effective way to ensure the integrity of the testing process while providing individual privacy as much as practicable.” The DOT also stressed that the new regulations for directly-observed collections only apply to employees who have shown a need for this procedure by engaging in such conduct as providing specimens that indicated signs of tampering or violating drug testing regulations, resulting in the need for return-to-duty or follow-up testing.

Refusal to Test Issues and New Rules

The amended regulations demonstrate the DOT’s strong concern about the proliferation of adulteration products. In addition to the testing requirements discussed above, the DOT has supplemented the actions that constitute a refusal to test to include an employee’s failure to follow instructions to raise his or her clothing above the waist, lower clothing and underpants, or to allow an observer to check for devices before undergoing an observed collection, as well as an attempt to subvert the collection process by wearing a prosthetic or other device. An individual’s admission to a collector or an MRO that he or she adulterated or substituted a specimen is also now considered a refusal to test. Additionally, the examples of a refusal to test have been revised to include an individual’s refusal to wash his or her hands.

The amendments to the DOT regulations also modify a variety of other rules relating to adulterated, substituted, diluted or invalid urine specimen results. While the majority of these rules alter the responsibilities of MROs and testing laboratories, some also affect the duties of employers and/or collectors. The amended regulations also made specimen validity testing (SVT) mandatory for all DOT-regulated specimens. Moreover, the reporting requirements for test results have been revised.

Revise Your Policies, Train Supervisors

As with any significant change in a testing process, affected employers should revise their DOT drug testing policies to reflect the new requirements and advise their employees of the amendments. Employees who have not been educated concerning the new requirements are more likely to object to the testing process when facing a directly-observed collection, which could result in a refusal to test. Affected employers should also train their supervisors and collectors to ensure that the amendments are properly implemented. Holland & Knight attorneys are available to assist you with this process.

For more information, contact:

Naomi Katz
312.578.6581
naomi.katz@hklaw.com
toll free: 1.888.688.8500


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