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LABOR & EMPLOYMENT LAW — 08/11/09

DOT reinstates rule requiring direct observation of urine testing

The US Department of Transportation (DOT) has reinstated its 2008 final rule subjecting transportation industry workers in safety-sensitive positions to direct observation for all return-to-duty and follow-up drug tests, according to a notice published in the July 30, 2009, Federal Register. The rule takes effect August 31.

Acting pursuant to the Omnibus Transportation Employee Testing Act of 1991, DOT published a final rule amending its drug testing regulations (codified at 49 CFR §40.67) on July 25, 2008, to require pre-employment, random, and postaccident drug and alcohol tests for employees throughout the transportation industry. Employees who fail or refuse to take the tests are barred from performing safety-sensitive duties until they complete a treatment program under the supervision of a substance abuse professional. Employees who successfully complete the program must then pass a "return-to-duty" urine test before resuming safety-sensitive duties. During the next twelve months, employees must also pass at least six unannounced "follow-up" urine tests.

Prior to the rulemaking, employers had the option of conducting return-to-duty and follow-up tests using so-called "direct observation," a procedure that requires a same-gender observer to "watch the urine go from the employee's body into the collection container." Concerned that employers were underutilizing this option, DOT promulgated the rule to require transportation industry employers to use direct observation for all return-to-duty and follow-up testing. The regulation also requires that immediately prior to all direct observation tests, employees must raise their shirts above the waist and lower their lower clothing so as to expose their genitals and allow the observers to verify the absence of any cheating devices.

Several transportation industry unions and the BNSF Railway Company filed a petition for review on August 13, 2008, challenging the rule, which was scheduled to take effect August 27, 2008. On November 12, 2008, the DC Circuit stayed the direct observation mandatory requirement pending the court's resolution of the matter. In order to comply with the court-ordered stay, DOT again made the regulation optional (BNSF Railway Co v DOT, DCCir, No 08-1264).

On May 15, 2009, the DC Circuit held that DOT acted neither arbitrarily nor capriciously in enacting the rule, nor were they in violation of the Fourth Amendment (see ¶69,015D). The agency had a "considered justification" for the rule, wrote the circuit court, having determined that "the growth of an industry devoted to circumventing drug tests, coupled with returning employees' higher rate of drug use and heightened motivation to cheat, presented an elevated risk of cheating on return-to-duty and follow-up tests." Moreover, as the rule applied only to employees who failed or refused to take previous drug tests, the regulation balanced the government's compelling interest in transportation safety with employees' freedom from intrusive searches. Therefore, even though the DC Circuit court recognized the "highly intrusive nature of direct observation testing," it concluded that the regulations complied with the Fourth Amendment.

Because there was an opportunity for the parties to seek rehearing of the DC Circuit's ruling, the court's stay continued to effect. Ultimately, the DC Circuit issued a mandate on July 1, 2009, which finalized the decision, thereby lifting the stay.

In the Federal Register notice, DOT noted that some employers and labor organizations may have entered into collective bargaining agreements (CBAs) that prohibit or limit the use of direct observation collections in return-to-duty and follow-up testing situations. "Employers and employees, of course, do not have the authority to agree to avoid compliance with the requirements of federal law," said DOT. When the final rule takes effect, conducting all follow-up and return-to-duty testing using direct observation collections will be a requirement of federal law and "[e]mployers must use direct observation collections for such tests that take place after the effective date of this rule, and any contrary provisions of CBAs in the present or in the future will not be effective," confirmed DOT.

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

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