UPDATE: After the regulations described below were published, implementation of a portion of the rules was delayed. Specifically, implementation of the regulation requiring observed urine collections be performed for all workers scheduled to take return-to-duty or follow-up tests was voluntarily delayed by the DOT until November 1, 2008. On October 31, 2008, the U.S. Circuit Court for the District of Columbia issued an order imposing a temporary stay on the implementation to give the Court time to review the new requirements, which have been challenged by a group of transportation unions. Thus, observed collections are not required for return-to-duty or follow-up tests at this time, although other regulations calling for observed collections remain in effect.

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In a classic case of a few bad apples ruining the barrel, drug testing practices for regulated employees are about to become stricter as a result of recent modifications by the U.S. Department of Transportation (DOT). 

On Wednesday, June 25, the DOT issued new drug testing regulations in what amounts to the most significant overhaul of the transportation industry drug and alcohol rules (codified at 49 CFR Part 40) since 2001.

The DOT frames this change as addressing “specimen validity,” and includes various mandatory tests and changes to the rules on adulterant testing, yet truly the most significant change for employers and collectors is that far more urine specimen collections must be directly observed. Commencing with the rule’s effective date, August 25, 2008, all return-to-work and follow-up urine collections must be observed collections. (In an announcement in the August 26 Federal Register, the DOT changed the effective date of observed urine collections to November 1, 2008.)

In the preamble to the new final rule, the DOT acknowledges that the Omnibus Transportation Employee Testing Act directs the DOT to use procedures that “promote[ ], to the maximum extent practicable, individual privacy in the collection of specimen samples,” the agency stated however, that given the vast and growing numbers of products designed and marketed to beat urine drug tests, “the measure of what is the maximum extent of privacy has shifted somewhat.”

The new rule will require employees “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.”

The DOT points out that presently, observed collections (which currently require no disarrangement of clothes and which are conducted by same-sex collectors) are required only of people who have given the collector reason to believe they have tampered with a test. The addition of mandatory observed collections for return-to-work and follow-up tests--required of workers who have tested positive for a prohibited drug in the past--are clearly designed to target those transportation workers most likely to have resumed illegal drug use, and thus have the greatest interest in ensuring a negative test result by whatever means necessary.

Although the new rules may seem draconian in nature, the DOT’s action follows a number of well-publicized events calling into question the current rules’ ability to weed out drug abusers. In May 2008, a report released by the Government Accounting Office on the drug and alcohol testing program administered by the Federal Motor Carrier Safety Administration cited as a significant concern the widespread availability of adulterants, mechanical delivery devices and synthetic urine as effective to mask evidence of substance abuse. One source estimated that as many adulterated specimens as positive specimens are received. A study conducted roadside on anonymous truckers by the Oregon State Police last spring found that one in ten tested positive for a banned substance. Last fall, the U.S. House of Representatives’ Committee on Infrastructure and Transportation held Subcommittee hearings that revealed widespread problems with collectors who were not implementing the DOT regulations correctly. It’s plain to see why regulators have concluded that privacy mores must “shift.”

Employers have approximately one month to amend their policies to reflect the new regulatory requirements, and ensure that their managers and collectors are trained to implement them correctly. Employers who are not subject to DOT regulation, but who, nonetheless, model their drug and alcohol testing program for non-regulated employees on the DOT regulations should beware; many states bar observed collections, making it more important than ever that employers accurately distinguish between which tests are employer-mandated and which are required by federal regulation.

For further analysis, please see Littler ASAP: Transportation Workers In All Industries Face Tougher Drug Testing Procedures: Observed Collections Designed to Thwart Abuses by Nancy N. Delogu and Donald W. Benson.