An undivided panel of the United States Court of Appeals for the District of Columbia Circuit has upheld a new drug testing regulation that requires employers in the aviation, rail, motor carrier, mass transit, maritime and pipeline industries to directly observe every employee who must produce a urine sample for return-to-work and follow-up drug tests. The regulation, issued by the U.S. Department of Transportation (DOT) in June 2008, requires employees subject to observed collections “to 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. After this is done, they may return their clothing to its proper position,” and produce a specimen “in such a manner that the observer can see the urine exiting directly from the individual into the collection container.”

Although the Omnibus Transportation Employee Testing Act directs the DOT to adopt procedures that “promote[], to the maximum extent practicable, individual privacy in the collection of specimen samples,” the agency justified the intrusive regulation given the vast and increasing number of products designed to defeat urine drug tests. A group of employers and unions, however, challenged the regulation, arguing first that it violated the Administrative Procedure Act (APA), which prohibits arbitrary and capricious agency action, and second, that it was unconstitutional under the Fourth Amendment, which prohibits unreasonable government searches.

The D.C. Circuit held that “the combination of the vital importance of transportation safety, the employees’ participation in a pervasively regulated industry, their prior violations of the drug regulations, and the ease of obtaining cheating devices capable of defeating standard testing procedures” make direct observation a “reasonable procedure for situations posing such a heightened risk of cheating.”

The parties now have the opportunity to seek review by either the entire D.C. Circuit or by the U.S. Supreme Court. Until then, the existing regulations permit, but do not require, employers in the transportation industry to conduct observed collections for return-to-work and follow-up tests. The case is BNSF Railway Co. v. United States Department of Transportation, No. 08-1264 (D.C. Cir. May 15, 2009).

For additional insight into this development, see Littler ASAP “Court Rules Transportation Industry Employers Must Implement Observed Urine Collection Testing Procedures,” by Nancy N. Delogu.

This entry was co-authored by Benjamin Garner, an intern in Littler's Washington D.C. office.