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LABOR & EMPLOYMENT LAW — 7/30/08

DOL amends drug testing rules for the federally regulated transportation industry

The Department of Transportation (DOT) amended its regulations (codified at 49 CFR Part 40) for conducting workplace drug and alcohol testing for the federally regulated transportation industry. The new regulations, which take effect August 25, 2008, require that all transportation workers who were previously tested (i.e., who have tested positive for a prohibited drug in the past) or who are returning to work have their urine specimens observed by specimen collectors. "These changes are intended to create consistency with specimen validity requirements established by the US Department of Health and Human Services," as mandated by the Omnibus Transportation Employee Testing Act of 1991. Under current DOT regulations, only transportation workers whose specimens appear to show signs of tampering are required to provide urine specimens while being observed. Observed collections are conducted by individuals of the same-sex collectors. The new regulations can be found at: http://www.dot.gov/ost/dapc/NEW_DOCS/part40.html.

In the preamble to the new final rule, DOT acknowledged that the Omnibus Transportation Employee Testing Act directs it to use procedures that "promote[ ], to the maximum extent practicable, individual privacy in the collection of specimen samples." However, DOT stated that given "wide variety of products" and "mechanical devices [] now readily available to individuals who want to adulterate or substitute their urine specimen during a drug testing collection. . .the measure of what is the maximum extent of privacy has shifted somewhat." DOT confirmed that "checking for devices prior to observed collections is the most effective way to ensure the integrity of the testing process while providing individual privacy as much as practicable."

The new rule will require employees "to raise their shirts, blouses, or dresses/skirts 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. After this is done, they may return their clothing to its proper position," and produce a specimen "in such a manner that the observer can see the urine exiting directly from the individual into the collection container." The existing rule did not require moving clothing around. In addition to direct observation collections for all return-to-duty and follow-up drug tests, the DOL noted that employees who may be required to undergo a directly observed collection have provided reasons to necessitate the procedure by providing specimens that: (1) show signs of tampering; (2) were invalid with no legitimate medical explanation for the result; or (3) demonstrated a negative and dilute specimen with creatinine concentration in the 2 to 5 mg/dL range.

The new requirements are "clearly designed to target those transportation workers most likely to have resumed illegal drug use, and thus have the greatest interest in ensuring a negative test result by whatever means necessary," wrote Nancy N. Delogu in Littler Mendelson's Workplace Privacy Counsel blog. The blog can be found at: http://privacyblog.littler.com/2008/07/articles/drug-testing/dot-tightens-drug-testing-regulations-loss-of-privacy-attributed-to-cheaters/. "Employers have approximately one month to amend their policies to reflect the new regulatory requirements, and ensure that their managers and collectors are trained to implement them correctly," she wrote. "Employers who are not subject to DOT regulation, but who, nonetheless, model their drug and alcohol testing program for non-regulated employees on the DOT regulations should beware," said Delogu, because "many states bar observed collections, making it more important than ever that employers accurately distinguish between which tests are employer-mandated and which are required by federal regulation."

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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