Recent News
Posted May 26, 2009
Court rules on direct-observation testing
The U.S. Department of Transportation (DOT) can proceed with plans to
require direct observation of all return-to-duty and follow-up drug tests
for transportation workers now that the U.S. Court of Appeals for the D.C.
Circuit has ruled in the agency’s favor. The May 15, 2009, decision means
that a June 25, 2008, DOT rule that had been delayed by the court can now go
into effect. The rule was supposed to require all commercial drivers and
other transportation employees who are undergoing return-to-duty or
follow-up drug tests to be closely observed while providing their urine
samples. Previously, such observation was optional, at the employer’s
discretion. Since return-to-duty and follow-up tests are only administered
after an employee has already violated the drug or alcohol testing rules,
the DOT was concerned that such employees may be more likely to try to cheat
on their tests. In its 2008 rule, the agency decided not only to require
direct observation of all such tests, but also to require the employees to
raise their shirts and lower their slacks so the observer can check for
adulterants or prosthetic devices. The rule immediately raised privacy
concerns. Several transportation industry unions and a railway company took
the DOT to court, arguing that the rule violates the prohibition on
“arbitrary and capricious agency action” and the Fourth Amendment’s
protection against unreasonable searches. While the case was pending, the
court required the DOT to delay the portion of the rule that would have made
direct observation of all return-to-duty and follow-up tests mandatory. The
rest of the rule took effect as planned on August 25, 2008. In its recent
decision, the court sided with the DOT, clearing the way for the DOT to put
the entire rule into place. Under 49 CFR Part 40, a “return-to-duty” test is
required before a driver can return to safety-sensitive duties — such as
driving a commercial motor vehicle — after violating the drug or alcohol
testing rules. Then, during the next twelve months, the employee must pass
at least six unannounced “follow-up” tests. The DOT has not yet announced
when it will implement its planned changes to 49 CFR §40.67(b) in light of
the court’s decision. Presently, direct observation remains optional for
return-to-duty and follow-up tests.
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