The U.S. Department of Transportation (DOT) issued a final rule on July 30, 2009, mandating direct observations of all return-to-duty and follow-up drug tests. Previously, it was up to an employer whether or not to have return-to-duty and follow-up drug tests observed.

In addition, under the new rule, direct observation procedures have become more invasive. DOT employees who must provide urine samples for drug tests (after previously failing a test) must now “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 provide the sample.

Originally adopted in June, 2008, DOT’s rule changes were designed to make cheating on drug tests more difficult. Cheating has typically been accomplished by using adulterants or urine substitutes with one of several vehicles including prosthetic devices. The new rules mandate laboratory tests for adulterants and require direct observation to prevent offenders from tampering with their urine sample.

Before the new rule became effective, an open comment period allowed individuals or organizations to respond to the proposed changes. LIUNA joined others last fall in submitting comments to the DOT questioning the necessity of such an invasive direct observation procedure, suggesting that it amounted to a “strip search.” Because the direct observation requirement had not been made clear in the first-published rule change, opponents asked the United States Court of Appeals to stay execution of the change until further comment was received. A stay was temporarily granted; however, after considering submitted comments, the Court decided to accept DOT’s rationale and lifted the stay on July 1, 2009. The final rule took effect on August 31, 2009.

Employers subject to DOT regulations must now amend their drug and alcohol testing policies to incorporate the new regulatory requirements. They must also ensure that their employees are trained to implement them correctly.

While LIUNA supports strong drug testing and drug-free workplace programs to help ensure the safety, health and wellness of members, it does not support the tougher direct observation requirements. Although covered employers and employees must now adhere to these new rules, LIUNA and the LHSFNA will continue to fight for more dignified methods. Encouraging the use of alternative test specimens, such as oral fluids (saliva) and hair, and discouraging employers that are not subject to DOT testing from including more invasive procedures are two ways to address member concerns. 

To help ensure effective and fair drug-testing, as well as comprehensive policies and programs, the Fund assists local unions and contractors in program design and evaluation. More information on drug-free workplace programs is available through the LHSFNA’s Health Promotion Division (202-628-5465) and through the Department of Labor’s Working Partners website.

[Steve Clark]