October/November 2008

Labor unites to challenge DOT mandate for more frequent direct observation of urine specimen

In the August/September edition of this newspaper, TAP reported on the Department of Transportation's August 25, 2008 implementation date for mandatory observed urine specimen collections and new collection procedures for all return-to-duty and follow- up drug testing.

Unions and transportation industry groups (including IBT General President James P. Hoffa, Association of American Railroads, Transportation Trades Department-AFL-CIO, and Air Transport Association), submitted letters and petitions challenging the proposed regulations.

In response, the DOT delayed the effective date for mandatory direct observation for follow-up and return-toduty testing to November 1, 2008. However, the rest rule went into effect on August 25, 2008 as scheduled-including the new direct observation procedures detailed in this article.

DOT also announced that it is seeking comments for 30 days about whether direct observation for follow-up and return to duty testing should be mandatory, but not concerning how directly observed collections would be done.

Critiquing the new procedures

Commenters criticized the new procedures for being too intrusive, excessively disregarding employee privacy concerns and not being supported by adequate research. They stated that DOT's only reference to support its rule change is that, "realistic-looking prosthetic devices which hold and heat urine (or water mixed with powdered urine" are available for purchase and are known to have been used during observed collections." The extent to which such devices are used has never been established, and the mere availability of them does not warrant the level of intrusion upon personal privacy imposed by the new observed collection procedures.

Commenters also noted the unclear language in the DOT's Guidance document which states that "an observed collection is required when the employer or designated employer representative directs the collector or collection site to conduct a collection under direct observation." Commenters complained that this gives employers sole discretion and authority to require directly observed collections, in direct conflict with the regulations that carefully limit the circumstances when observed collections may or must occur.

DOT's response

DOT pointed out that directly observed drug tests are only a tiny percentage of all drug tests conducted each year under the testing rules because they are used "only in those situations in which there is a heightened incentive to cheat or circumstances demonstrating the likelihood of cheating."

Currently, directly observed urine specimen collections are required in four circumstances: 1) when the laboratory reports an invalid specimen and the MRO reports no adequate medical explanation for the result; 2) when the MRO reports to the employer that the original non-negative result had to be cancelled because no split specimen was available for testing; 3) when the MRO reports a negative-dilute specimen with an abnormal low creatinine concentration; or 4) if the collector finds materials brought to the collection site to tamper with a specimen, determines a specimen is out of temperature range, or detects other evidence indicating an attempt to tamper with a specimen.

DOT pointed out that observed collections are not required for random, pre-employment, reasonable suspicion or post-accident tests. They stressed that the only change was to make mandatory what was already optional for employers-requiring observed collections for employees who had already violated the drug and alcohol testing regulations and were therefore subject to return-to-duty and follow-up testing.

DOT remained firm that the August 25, 2008, effective date be postponed for only one of two provisions of the rule concerning the direct observation of urine collections:

Provision 1: Making direct observation mandatory rather than optional in all follow-up and return-to-duty collections.DOT ordered a 30-day comment period on this provision, and changed the effective date of mandatory direct observation for follow-up and return-to-duty testing provision to November 1, 2008.

Provision 2: Requiring observers in all direct observation collections to check employees for prosthetic and other devices used to cheat on tests, by having employees raise and lower their clothing. The effective date of this provision remains August 25, 2008.

TAP will report on the outcome of the comments that DOT receives and their response.