LEGAL CORNER
REINSTATES DIRECT OBSERVATION COLLECTIONS O
n July 30, 2009, the Department of Transportation (DOT) published a final rule reinstating the requirement for direct observation collections for
return-to-duty and follow-up drug and alcohol tests. The direct observation provision was origi- nally included in the DOT’s June 25, 2008 final rule. However, the provision was stayed by the United States Court of Appeals for the District of Columbia Circuit effective November 1, 2008. On July 1, 2009 the Court’s stay was lifted and the DOT’s July 30, 2009 final rule followed.
After the final rule was issued, DOT received Gregory J. Reigel
several requests for it to delay the effective date of the modifications and to seek and consider fur- ther comment on the direct observation require- ment. Although the DOT initially agreed to delay part of the modifications, and did, in fact, open a comment period for the final rule, ultimately the DOT remained convinced that conducting all return-to-duty and follow-up tests under direct observation was the “most prudent course from
the viewpoint of safety.”
BACKGROUND On June 25, 2008, the DOT issued a final rule that, among other changes, modified 49 C.F.R. 40.67(b) (drug and alcohol testing procedures) and added a new paragraph (§ 40.67(i)) addressing the use of direct observation collections as a method to combat attempts by employees to cheat on their drug tests. Direct observation requires an observer of the same gender as the tested employee to actually observe the urine go directly from the employee’s body into the col- lection container. The amended rule specifically required direct observation collections for all return-to-duty and follow-up tests (e.g., testing of employees who have already failed or refused to take a prior drug test) and also required that the observer be allowed to check the individual for prosthetic or other cheating devices used to carry “clean” urine and urine sub- stitutes (e.g., the “Whizzinator,” the “Urinator,” or the “Ex- ecutive Ultra Realistic Kit,” etc.). Under this latter require- ment, an employee being tested must lift his or her shirt and expose himself or herself sufficiently enough to allow the observer to inspect for cheating devices (e.g., “please lift up your shirt and drop your shorts”).
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THE COURT CASE Prior to the effective date of the June 25, 2008 final rule, several affected parties filed a motion for stay with the United States Court of Appeals for the District of Columbia Circuit. The Court granted the motion and stayed the effec- tiveness of the direct collection requirement. In responses to the stay, on November 20, 2008, the DOT issued a final rule to return to the language of section 40.67(b) that existed prior to its June 25 final rule “pending further order of the Court.” As a result, direct observation collections for return- to-duty and follow-up testing remained an employer option, rather than mandatory, although all other requirements of the June 25, 2008 final rule, including the direct observa- tion provision at 40.67(i) (directing observers to check for prosthetic and other cheating devices) continued in effect. On May 15, 2009, the United States Court of Appeals for the District of Columbia Circuit unanimously upheld DOT’s direct observation drug testing rules. The Court determined that direct observation drug testing for return- to-duty employees was not arbitrary and capricious because the DOT had chosen a reasonable way of responding to the recent development and availability of cheating devices and the substantial incentive for return-to-duty employees to
DOMmagazine
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