July 24, 2008: Under regulations that take effect Aug. 25, the Transportation Department will begin requiring transportation workers who previously tested positive for a prohibited drug to give their urine specimens while being watched by specimen collectors.

Currently, only transportation workers suspected of tampering with their specimen are required to provide urine specimens while being observed.

The rule applies to workers in safety-sensitive positions in the aviation, motor carrier, rail, transit, maritime, and pipeline industries. The regulations have been in the works since December 2000 (65 Fed. Reg. 79526) and were amended by a final rule on June 25 (73 Fed. Reg. 35961).

DOT said the changes are intended to "create consistency with specimen validity requirements" established by the Health and Human Services Department, as mandated by the Omnibus Transportation Employee Testing Act of 1991.

In the rule's preamble, DOT explains that a "wide variety of products for adulteration of urine" and "various mechanical devices are now readily available to individuals who want to adulterate or substitute their urine specimen during a drug testing collection" and that therefore "the measure of what is the maximum extent of privacy has shifted somewhat." According to DOT, "Checking for devices prior to observed collections is the most effective way to ensure the integrity of the testing process while providing individual privacy as much as practicable."

The agency further points out that "employees who may be required to undergo a directly observed collection have provided reasons to necessitate this procedure" by furnishing specimens that showed signs of tampering or by being subject to return-to-duty or follow-up tests because of their previous drug violations.

Raising Shirts and Lowering Pants

The new rule amends 49 C.F.R. § 40.67 to "require employees who are undergoing directly observed collections to raise their shirts, blouses, or dresses/skirts, as appropriate, 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," the preamble says. It continues, "After this is done, they may return their clothing to its proper position and contribute a specimen in such manner that the observer can see the urine exiting directly from the individual into the collection container."

Nancy Delogu, a lawyer at Littler Mendelson in Washington, D.C., told BNA July 22 that approximately 8 million transportation workers are covered by DOT regulations and would be subject to the new procedures after violating drug rules or tampering with a specimen. In her practice, Delogu advises employers and testing service providers on complying with DOT drug-testing programs.

According to Delogu, a return-to-work test is conducted after a substance abuse professional determines that a worker who was found to have used drugs is ready to go back to work. Once the cleared individual returns to work, follow-up tests are conducted for up to 60 months to ensure that the worker remains in compliance with the drug rules.

Delogu pointed out that the existing rule does not call for any disarrangement of clothing, as the new rule does. She stressed, however, that the new rule will not change the existing rule's requirement that the specimen collector will be of the same sex as the specimen giver.

Delogu cautioned corporations that use the DOT regulations as a model for their own drug-testing programs that many states do not permit observed specimen collections for workers unless such testing is required by federal law.

"There's no certifying entity for collectors," the attorney said. She added that a large company may have occupational nurses or risk mangers collect specimens, while smaller employers may outsource the collections to third party administrators located off the employers' premises.

LaMont Byrd, safety and health director for the International Brotherhood of Teamsters, told BNA July 23 that the new procedures are "going to make some drivers uncomfortable, but in the interest of safety, we understand why the bar is being raised." He added, "There have been numerous reports of individuals having prosthetic devices attached to their body."

Text of the rule may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=gcii-7gsmn5.

By Gayle Cinquegrani