Labor and Employment Update
DOT Requires Observed Urination Procedure For Return-to-Duty and Follow-up Drug Testing of Employees in Safety-Sensitive Positions
Effective August 31, 2009, the Department of Transportation (“DOT”) will require employees in safety-sensitive positions to submit to “observed” urination drug testing for all follow-up and return-to-duty drug tests. Previously, only transportation workers suspected of tampering with their urine samples in some way were required to undergo direct observation testing. The DOT initially promulgated the change in June 2008, but the rule was challenged in court and not implemented, pending a final ruling. During the time the regulation was being challenged, employers had the option to directly observe the collection of urine specimens for return-to-duty and follow-up testing but were not required to do so. In May 2009, the regulation was upheld by the U.S. Court of Appeals for the District of Columbia Circuit. The DOT announced in the July 30 Federal Register that the rule will now be mandatory as of August 31.
Which Employers and Employees are Affected by the Change?
The Omnibus Transportation Employee Testing Act requires drug and alcohol testing of employees in certain safety-sensitive positions in the aviation, trucking, railroad, mass transit, pipeline and other transportation industries. Each individual DOT agency specific to a transportation industry outlines which employees are subject to drug and alcohol testing. For example, the Federal Motor Carrier Safety Administration (“FMCSA”) regulates drivers of motor vehicles in interstate commerce and designates which drivers must be subject to drug and alcohol testing. Under its regulations, drivers required to obtain a commercial driver’s license (“CDL”) and operating “commercial motor vehicles” must undergo drug and alcohol testing. Commercial motor vehicles generally include only vehicles with a gross combination weight rating of 26,001 pounds or more, vehicles designed to transport 16 or more passengers or vehicles transporting hazardous materials. Thus, a driver operating a truck with a gross combination weight rating of less than 26,001 pounds and not transporting hazardous materials would not be subject to the drug and alcohol testing regulations. Similarly, drivers of any vehicles who are not required to obtain a CDL under the regulations also are not subject to the drug and alcohol testing regulations. For guidance on whether an employer or employee is covered by the DOT’s drug and alcohol testing regulations.
The new regulation affects employees who are required to undergo drug and alcohol testing under DOT regulations and who fail or refuse to take a drug test. DOT regulations already require these employees to complete substance abuse programs before returning to their safety-sensitive positions. After completing such a program, employees must take and pass a return-to-duty test. Moreover, employers must also subject returning employees to a minimum of six unannounced follow-up tests in the first twelve months of their return to safety-sensitive duty.
What Does the New Regulation Require of Employers?
During the return-to-duty and follow-up testing of employees who failed or refused a drug test, employers must ensure that urine specimen collectors utilize “direct observation” procedures. Direct observation, as its name implies, is quite intrusive. It requires that a same-gender observer watch the urine go from the employee’s body into the collection container. In addition, employees must also raise their shirt or blouse above the waist, lower their clothing or underpants, and turn around in front of the observer, exposing their genitals. The purpose of this is to ensure the employee is not wearing a prosthetic device to cheat on the test.
Although recognizing that the requirements are intrusive, the DOT sought to balance the privacy interests of employees against its interest in maintaining transportation safety by limiting direct observation to only those situations where DOT believes there is a heightened incentive for an employee to cheat. The DOT purposely did not expand the direct observation requirement to the great majority of testing situations, which typically involve pre-employment and general random testing. The DOT concluded that employees returning after refusing or failing a test have a heightened incentive to cheat because of the heavy sanctions employers impose on repeat violators. In fact, the DOT pointed to data showing the failure rate for return-to-duty and follow-up testing is two or four times higher than that of random drug testing. The DOT was also prompted to make the change requiring direct observation on follow-up and return-to-duty tests because of the increasing proliferation of products designed and sold to help workers pass drug tests by cheating.
What About Contrary Provisions in Collective Bargaining Agreements?
Some collective bargaining agreements prohibit or otherwise limit the use of direct observation specimen collection. The DOT has made clear that any such provisions in current or future collective bargaining agreements will not be effective because employers and employees “do not have the authority to agree to avoid compliance with the requirements of Federal law.” Thus, regardless of contrary language in a collective bargaining agreement, employers are required after August 31, 2009 to use direct observation collection for return-to-duty and follow-up tests.
For questions about the DOT’s direct observation requirements and for assistance implementing appropriate procedures and guidelines, please contact Ellen Girard at 312-715-5051 /
or your Quarles & Brady attorney.