New Drug Testing Rules


Direct observation rules on drug testing


The direct observation rules for drug testing went into effect August 31, despite the best efforts of the Transportation Trades Department of the AFLCIO and other unions and organizations.  This rule is mandatory and applies to bus drivers and other transportation driving positions. 


On May 15, the U.S. Court of Appeals in Washington unanimously upheld DOT’s direct observation drug testing rules applicable to return-to-duty, safety-sensitive transportation industry employees who have already failed or refused to take a previous drug test. The court found that the rules were not arbitrary or capricious and did not violate the Fourth Amendment constitutional prohibition on unreasonable searches and seizures. 


As with other DOT direct observation collections conducted since 1998, DOT return-to-duty and follow-up drug testing will now require that a same gender observer check for prosthetic and other devices that could be used to cheat a drug test.  This is in addition to the observer’s subsequently watching the employee urinate into the collection container.


DOT’s 49 CFR Part 40 directly observed collections are authorized and required only when:


• The employee attempts to tamper with his or her specimen at the collection site.
• The specimen temperature is outside the acceptable range.
• The specimen shows signs of tampering, such as unusual color or odor or other characteristic.
• The collector finds an item in the employee’s pockets or wallet that appears to be brought into the site to contaminate a specimen, or the collector notes conduct suggesting tampering.
• The medical review officer orders the direct observation because the employee has no legitimate medical reason for certain atypical laboratory results; or the employee’s positive or refusal (adulterated/substituted) test result had to be cancelled because the split specimen test could not be performed (for example, the split was not collected); or the test is a follow-up test or a return-to-duty test.

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