Court Delays Transportation Drug-Testing Rule; Maritime Rule Set

By Roy Maurer Dec 16, 2008
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A U.S. Department of Transportation (DOT) worker drug-testing rule has been delayed by a federal judge while U.S. Coast Guard (USCG)​ drug-testing quotas for 2009 are set for implementation.

The DOT’s proposed drug-testing rule for the transportation industry, which allows direct observation (DO) of urine specimen collection, remains optional because of a court-issued stay, the U.S. government says.

The DOT issued a rule on June 25, 2008, making DO urine collection mandatory for all return-to-duty (RTD) and follow-up (FU) testing, but on Nov. 12, 2008, the U.S. Court of Appeals for the District of Columbia Circuit issued a stay in the case BNSF Railway Company v. Department of Transportation, No. 08-1265, halting implementation of the new rule and causing the current DOT rules on RTD and FU drug testing to continue unchanged.

The revised rule would have made DO collection mandatory for all RTD and FU testing, as well as in situations where there is the high incentive to cheat or where circumstances demonstrate the likelihood of cheating.

DO urine specimen collection—where the conducting official observes as the subject of the drug test urinates into the collection receptacle—are to be conducted when:

A laboratory reports an invalid specimen without medical explanation.

A medical review officer (MRO) reports that a non-negative specimen had to be canceled.

A MRO reports a negative-dilute specimen with high concentrations of creatinine.

Any evidence of specimen tampering is found.

Several petitioners to the final rule, including the Association of American Railroads, the American Short Line and Regional Railroad Association, the AFL-CIO, the Regional Airline Association and the Air Transport Association, asked the DOT to delay the effective date of the revised ruling and to open an extended comment period. On Oct. 22, 2008, the DOT said, “the Department remains convinced that conducting [RTU] and [FU] tests under DO is the most prudent course from the viewpoint of safety.”

Coast Guard Sets 2009 Testing Rate

The Coast Guard has set the 2009 minimum random drug-testing rate for the maritime industry at 50 percent of covered crew members, according to a Nov. 28, 2008, Federal Register notice.

The maritime industry drug-testing rate is effective Jan. 1, 2009, through Dec. 31, 2009, and marine employers subject to the rule must submit their 2008 “management information system (MIS) reports—which the Coast Guard uses to monitor drug-test activity—by March 15, 2009. The 2007 MIS data reported that the maritime industry had a positive-drug test rate greater than 1 percent (1.33 percent), which requires the Coast Guard to set the minimum drug-testing rate at 50 percent of covered crew members. The Coast Guard can lower the drug-testing rate if the MIS data indicate a positive rate of less than 1 percent for two consecutive years.

Marine employers can submit MIS reports to Commandant (CG-545), U.S. Coast Guard Headquarters, 2100 Second St., SW, Room 2404, Washington, DC 20593-0001 or to http://homeport.uscg.mil/Drugtestreports.

Roy Maurer is a staff writer for SHRM.

Related Resource:

Procedures for Transportation Workplace Drug and Alcohol Testing Programs, Federal Register Notice

Random Drug Testing for Covered Crewmembers, Federal Register Notice

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