August 29, 2008

DOT Delays Implementing Direct Observation

Requirement in Return-to-Duty and Follow-Up Drug Tests

Over the past two weeks, members have been contacting the Union office to express their outrage at the latest changes to the U.S. Department of Transportation (DOT) required Drug and Alcohol Testing Program regulations.  In addition, many union members, labor organizations and advocacy groups across the country have conveyed similar messages to the federal government since the initial announcement and have requested the DOT reconsider this extremely invasive modification to the program.

Recognizing that “direct observation” collections “are, and always have been, controversial,” the U.S. Department of Transportation announced on August 26, 2008, that it was delaying until November 1, 2008, the effective date of a provision of its new drug testing rule (section 40.67(b)) requiring that employers assure all mandated return-to-duty and follow-up drug tests be conducted under such observation.  In the meantime, DOT is seeking comments on this aspect of the rule until September 25, 2008.  After that, it will “reconsider” this section and “may retain, eliminate or modify it,” according to a notice published in the Federal Register.

For now, using direct observation for such tests remains discretionary.  The DOT’s action came in response to petitions filed with the Department by transportation industry and labor groups.

The rest of the new rule, however, including the more intrusive procedure for “direct observation”, remains effective as of August 25th.  Direct observation now includes having the employee raise his or her shirt, blouse, dress or shirt, as appropriate, above the waist and lower clothing and underpants to show the collector, by turning around, that the employee is not wearing a prosthetic device. Therefore, any tests presently conducted under direct observation must adhere to the method prescribed in the new rule.  DOT justifies this approach by citing the risks posed to the integrity of its testing by readily available prosthetic devices containing drug-free human urine. “There would be nothing gained by delaying this significant anti-cheating, pro-safety initiative,” the agency explained.

For more information, visit our website at:  www.uwua132.org