A federal appeals court recently upheld the rule changes that the U.S. Department of Transportation (DOT) made to its alcohol and drug testing procedures, despite that DOT’s changes made return-to-duty and follow-up testing more embarrassing and invasive for transportation workers.
DOT-regulated employers must follow DOT alcohol and drug testing procedures, while employers who are not DOT-regulated may voluntarily follow them, as some do. Subsequently, you might be interested in the rule changes even if you don’t work in a DOT-regulated industry.
The rule changes make direct observation mandatory for all return-to-duty and follow-up alcohol and drug tests. Employers conduct return-to-duty tests before allowing employees to return to work after they’ve tested positive for alcohol or drug abuse, while they conduct follow-up tests when they suspect that employees or job candidates have tampered with their specimens.
“Direct observation” for return-to-duty and follow-up alcohol and drug tests now means that testees must “raise their shirts, blouses, or dresses/skirts, as appropriate, above the waist and lower their pants and underpants to show the observer, by turning around, that they do not have a prosthetic device on their person.”
In other words, direct observation must now go as far as invasively requiring testees to embarrassingly expose their genitals to same-sex observers, so that observers may visually check for “cheat” devices that testees could use to tamper with their specimens. For example, observers must now check for a readily available prosthetic device that closely resembles the human male anatomy and delivers drug-free urine into a collection container.
Direct observation now also means that testees must expose themselves “in such a manner that the observer can see the urine exiting directly from the individual into the collection container”.
The rule changes also make specimen validity testing (SVT) mandatory within DOT-regulated transportation industries, to detect adulterated, substituted, diluted and invalid urine specimens. All urine specimens will be tested for validity, to better ensure that employees and job candidates haven’t tampered with their specimens in an attempt to dishonestly pass alcohol or drug testing.
DOT proposed its rule changes in June 2008. However, a railway employer and transportation unions challenged the changes in court, on the basis that they were unconstitutional under the Fourth Amendment. The case, BNSF Railway Co., et. al. v. United States Department of Transportation, made its way up to the United States Court of Appeals for the District of Columbia, which disagreed with the petitioners and sided with the Department of Transportation.
DOT proposed the changes to comply with specimen validity testing in the Mandatory Guidelines by the U.S. Department of Health and Human Services (HHS), which spawned the Model Plan for a Comprehensive Drug-Free Workplace Program for all employers who conduct alcohol and drug testing.
Under the HHS Model Plan and subsequently, under the new DOT rule, if you are busted for altering or substituting your urine specimen, then it’s likely to be good cause for your employer to fire you or another to decline to hire you. However, as indicated above, you might get a second chance by taking a more invasive follow-up test.
To read about the new DOT rule, see Procedures for Transportation Workplace Drug and Alcohol Testing Programs. For more about DOT alcohol and drug testing overall, see the information at Office of Drug & Alcohol Policy & Compliance.
Update: As a result of the court decision, DOT published an amendment to its new rule in the Federal Register on July 30, 2009. The amendment reinstates the requirement for direct observation, as outlined in the new rule linked above. The amendment and thus, the new rule, are to become effective on August 31, 2009.