Sudden Delay in Part of DOT's Drug Testing Changes

The U.S. Department of Transportation today changed the effective date for part of its toughened workplace drug testing rule from Aug. 25, 2008, to Nov. 1, 2008, and also asked for comments on the content of Sec. 40.67(b) for 30 days. That section requires employers to ensure all follow-up and return-to-duty drug tests are directly observed. DOT said it decided to take these steps based on petitions from "certain transportation industry and labor groups."

Comments are due by Sept. 25 (identified by the docket number OST-2003-15245 and submitted via www.regulations.gov or faxed to 202-493-2251.)

Petitioners include the Association of American Railroads, which was joined by the American Short Line and Regional Railroad Association; the Transportation Trades Department of the AFCL-CIO; the International Brotherhood of Teamsters; and the Air Transport Association, joined by the Regional Airline Association.

The notice published today points out that directly observed drug tests are only a tiny percentage of all drug tests conducted each year under DOT's testing rules because they are used "only in those situations in which there is a heightened incentive to cheat or circumstances demonstrating the likelihood of cheating." Currently, section 40.67(a) requires an immediate, directly observed urine specimen collection in three circumstances: 1) when the laboratory reported an invalid specimen and the MRO reported there was not an adequate medical explanation for the result; 2) when the MRO reports to the employer that the original non-negative result had to be cancelled because there was not a split specimen available for testing; and 3) when the MRO reports a negative-dilute specimen with a creatinine concentration greater than or equal to 2 mg/L or less than or equal to 5 mg/L. Direct observation is also mandatory if the collector finds materials brought to the collection site to tamper with a specimen, determines a specimen is out of temperature range, or detects other evidence indicating an attempt to tamper with a specimen.

"We acknowledge that DO collections are, and always have been, controversial . . . because of their greater impact on employee privacy. They can be useful because they reduce the opportunity for tampering. On privacy grounds, some commenters, including unions and some service agents, would prefer not to conduct directly observed collections at all," DOT noted.

The new Section 40.67(i), which requires employees to raise and lower their clothing to show the collector or observer that the employee is not using a prosthetic device to cheat on the test, has taken effect Aug. 25 as planned, according to today's notice, which calls this section a "significant anti-cheating, pro-safety initiative."

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