Mandatory Direct Observation Drug Testing to Prevent Truck Accidents begins Today

In a move designed to reduce the number of truck accidents linked to drug use by truck drivers, the Department of Transportation now requires any employee in “safety-sensitive” positions to submit to directly observed urination drug testing when taking return-to-duty or follow-up drug tests. Such tests are required of employees who, after completing mandatory substance abuse programs and taking and passing a return-to-duty test, are seeking to return to work in safety-sensitive positions.

Direct observation drug testing is exactly what it sounds like: A same gender observer watches to insure that urine passes directly from the employee’s body into the collection container. In addition, tested employees are required to raise their blouse or shirt above the waist, lower their clothing or underpants to expose their genitals, and rotate to reveal their back. This is to prevent the use of mechanical or prosthetic devices to cheat the test.

While the civil libertarian in me pauses for a moment, I think about one of the many cases I’ve handled involving drugs and alcohol. The truck driver was taken to a testing facility for an alcohol test. We had reason to believe that he brought in somebody else’s clean urine. We know that people will sometimes place a vial of urine under their armpit to keep it at body temperature. This truck driver went into the bathroom–and ran out before the test could be completed–soaked with urine from his armpit down. He claimed that he urinated on himself, but even my children when they were young never hit their armpit. In any event, a few dishonest truck drivers like this one have necessitated the need for direct observation.

The new rule, which takes effect today–August 31, 2009–was originally intended by the DOT to be implemented in June of 2008, but it was challenged in court at that time, and final implementation was delayed. The U.S. Court of Appeals for the District of Columbia Circuit upheld the new rule in May of 2009 and the DOT announced the rule’s effective date in the July 30 Federal Register.

Previous rules required direct observation urination tests only in the case of transportation workers who were suspected of tampering with urine samples in prior testing. Otherwise, direct observation was optional.

Known as the Omnibus Transportation Employee Testing Act, the rule applies to employees within the aviation, trucking, railroad, mass transit, pipeline and other transportation industries who perform jobs that are safety-sensitive. It falls to each DOT agency to determine which employees are subject to the direct observation testing.

For commercial truck drivers, the decision on direct observation drug testing falls to the Federal Motor Carrier Safety Administration (FMCSA), which requires such testing for certain drivers with a commercial driver’s license and operating commercial motor vehicles. Drivers operating commercial vehicles weighing greater than 26,001 pounds, designed to transport 16 or more passengers, or transporting hazardous materials are required to submit to drug testing.

Drivers of vehicles weighing less than 26,001 and not transporting hazardous materials would not be subject to the new regulations for drug and alcohol testing even if they were returning to work in safety-sensitive positions. Drivers who are not required to obtain a commercial driver’s license under DOT regulations would also be exempt from the new drug testing rule. The rule requires employers to subject returning employees to no fewer than six unannounced follow-up tests with the first year of their return to duty.

Because the new rule is Federal law, it will be immune to efforts to challenge it in collective bargaining agreements.

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