Last June, in the most significant overhaul of the transportation industry’s drug testing rules since 2001, the Department of Transportation (DOT) issued major changes to its CFR 49 Part 40 Regulations. The changes took effect on August 25, 2008.

“In our continuing efforts to support effective, fair drug-free workplace programs, we feel the changes proposed by the DOT – with one exception – advance this goal,” says LIUNA General Secretary-Treasurer and LHSFNA Labor Co-Chairman Armand E. Sabitoni, noting LIUNA’s opposition to the rule on direct observation (see below).

A summary of the new rules is as follows:

  • It is mandatory for laboratories to test all DOT specimens for specimen validity, which means testing for adulterants and urine substitutes. Laboratories are to follow all Department of Health and Human Services’ protocols for doing so.
  • The final rule will no longer have easy-to-follow tables and charts outlining the adulterants for which laboratories are testing and the scientific cutoff levels for which laboratories test. This is an effort to make it more difficult for those who manufacture products designed to “beat” drug tests to do so.
  • The following occurrences are now considered a refusal to test:
    • The donor is found to posses or wear a prosthetic or other device that could be used to interfere with the collection process.
    • The donor admits to the collector or medical review officer (MRO) that he/she adulterated or substituted the specimen.
  • The final rules will streamline and simplify the confirmation process to reduce the number of complicated, laboratory-confirmed and MRO-verified drug test results.
  • The final rule requires drug-testing laboratories to report to DOT semi-annual statistical summaries on all of their drug testing.

DOT has delayed the effective date for one provision, 40.67 (b), in response to petitions to postpone the date and will allow for a 30-day comment period on the provision and for DOT’s response to submitted comments. This provision, which would make it mandatory for all follow-up and return-to-duty collections to be conducted as directly observed collections, is scheduled to go into effect November 1, 2008.  Previously, observed collections were required only of workers whose specimens appeared to have shown signs of tampering.

If the provision stands as it is currently written, the new observed collection procedures will take effect. The rules will require workers whose collection is to be observed “to 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.”

LIUNA plans on submitting comments opposing this controversial provision. “Stronger safeguards against adulterations are necessary,” says Sabitoni, “but requiring, in effect, a strip search goes too far.” He notes as well that DOT did not make this provision clear until after the public comment period on the original proposal had closed.

Employers subject to DOT regulations will need to amend their drug and alcohol testing policies to reflect the new regulatory requirements and ensure that their managers and collectors are trained to implement them correctly. Ultimately, the new rules are intended to make “cheating” on drug tests more difficult and to streamline the drug-testing process from start to finish.

If you are considered a covered employer, you should know about the revised regulations, guidelines and supporting publications. In addition, we encourage all workers to make themselves familiar with the recent changes.

The new regulations can be found at:

[Jamie Becker is the LHSFNA’s Associate Director, Health Promotion.]