Transportation Employers Must Observe Some Drug Tests

By Beth Mirza Aug 3, 2009
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The U.S. Department of Transportation (DOT) is requiring transportation industry employers to observe urine collection for all return-to-duty and follow-up tests conducted on employees who previously failed drug tests or refused to take one, in order to check for prosthetic and other “cheating” devices.

According to a final rule published July 30, 2009, in the Federal Register, the requirement takes effect Aug. 31, 2009.

The Department of Transportation (DOT) had previously issued a final rule on June 25, 2008. It added new language requiring direct observation collections, which previously had been an employer option. Petitioners asked the DOT to delay the effective date of the provision, which it did. However, the DOT stated Oct. 22, 2008, that it “remains convinced that conducting all return-to-duty and follow-up tests under direct observation is the most prudent course from the viewpoint of safety,” and it announced that the rule would go into effect Nov. 1, 2008.

Petitioners filed for a motion for stay with the U.S. Court of Appeals for the District of Columbia Circuit. On Oct. 31, 2008, the court issued a temporary administrative stay, and on Nov. 13, it issued a further order to stay the effectiveness of the section in question. On Nov. 20, 2008, the DOT issued a final rule to return the language of the section to that which existed prior to the June 25, 2008, rule “pending further order of the court.” Thus, direct observation collections for return-to-duty and follow-up testing remained an employer option.

On May 15, 2009, the Court of Appeals for the D.C. Circuit unanimously upheld DOT’s direct observation rules “applicable to return-to-duty, safety-sensitive transportation industry employees who have already failed or refused to take a prior drug test” (BNSF Railway Company v. Department of Transportation, 566 F.3d 200 (DC Cir. 2009)), according to the notice in the Federal Register.

In its decision, according to the Federal Register notice, the court found that the requirement for direct observation drug testing was “not arbitrary and capricious” because the DOT was responding in a reasonable way to preserve safety and to combat the recent development of a wide array of available cheating devices. In addition, the decision “held that the rules did not violate the Fourth Amendment constitutional prohibition on unreasonable searches and seizures, taking into account, among other factors, the diminished expectation of privacy of employees who have failed or refused a prior drug test. …”

“By choosing to violate the department’s perfectly legitimate—and hardly onerous—drug regulations, returning employees have placed themselves in a very different position from their co-workers,” the court said.

Several commenters and petitioners argued that returning employees are a lower risk because they have completed a drug treatment program. However, the DOT presented data showing that “the violation rate for return-to-duty and follow-up testing is two to four times higher than that of random testing.”

The court rejected the petitioners’ argument of continuing the status quo of allowing employers the option of conducting direct observation collections. The court agreed with DOT that employers rarely exercise the option, for fear of upsetting employees and disrupting labor-management agreements. An amicus brief from the Association of American Railroads said that direct observation tests “generate resentment and ill will towards management,” proof, the court said, that employers don’t and would not conduct the tests voluntarily.

In the Federal Register notice, the DOT acknowledged that some employers and labor organizations had collective bargaining agreements (CBAs) that prohibit or limit the use of direct observation collection tests. “Employers and employees, of course, do not have the authority to agree to avoid compliance with the requirements of federal law. When this final rule goes into effect, conducting all follow-up and return-to-duty testing using direct observation collections will be a requirement of federal law. Employers must use direct observation collections for such tests that take place after the effective date of this rule, and any contrary provision of CBAs in the present or in the future will not be effective.”

Beth Mirza is senior editor for HR News. She can be reached at

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