Drug Test Rule Allows 'Direct Observation' of Urine Collection

New transportation industry drug testing rules permit direct observation of urine collection and the partial removal of clothing, including underwear, to ensure that no devices containing drug-free urine are being used to cheat the test.

The U.S. Department of Transportation (DOT) implemented part of its new drug testing rules on Aug. 25, 2008—a day before the DOT posted a notice about the regulation on the Federal Register—and delayed implementing some provisions of the rule until Nov. 1, 2008.

On Oct. 31, 2005, the DOT issued a notice of proposed rulemaking (NPRM) to make “specimen validity testing” mandatory as a way to reduce efforts at drug test cheating. However, sections of the 2005 NPRM requiring “direct observation” (DO) of urine collection—having an official watch as the subject of the drug test urinates into the collection receptacle—to ensure specimen validity are “intrusive,” the DOT says. Therefore, along with making DO mandatory in certain situations, the DOT has limited when DO would be used, saying it is not appropriate for all pre-employment and random drug tests. DO should be limited to situations where there is a high incentive to cheat, or where circumstances demonstrate the likelihood of cheating, the DOT said. By limiting when DO can be implemented, a balance of the legitimate privacy expectations of employees and the integrity of the DOT’s safety concerns is maintained, the department says. “As a result, DO tests constitute only a tiny percentage of the drug tests conducted each year under DOT drug testing rules,” the department says. In addition, employers are required to “direct an immediate collection under direct observations in three circumstances,” the DOT says. Those circumstances are:

When a laboratory reports an invalid specimen and the “medical review officer” (MRO) reports that there is no adequate medical explanation for the result.

When the MRO reports that the original non-negative result had to be canceled because there was not a split specimen available for testing.

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.

In addition, direct observation is required at urine collection sites if a collector finds materials at the site designed to tamper with a specimen; if a specimen is out of temperature range; or if other evidence is detected that indicates an attempt to tamper with a specimen. In addition, employers are currently allowed—but not required—to order a DO test for follow-up (FU) and return-to-duty (RTD) urine specimen collections.

The DOT says DO collections are—and always have been—controversial “because of their greater impact on employee privacy” and some service providers “would prefer not to conduct directly observed collections at all.” However, DO collections can be useful because they reduce the opportunity for specimen tampering, the DOT says. In addition, because the use of “prosthetic devices that look like real human anatomy” have proved to be highly effective at beating a urine drug test, a transportation industry employee can now be compelled to lower his or her “pants and underwear so that the collector or observer could determine whether the employee was using such a device,” under the rule that became effective Aug. 25, 2008.

However, while DO collections are allowed under the new rule, implementation of the provision concerning DO collections for FU and RTD tests has been delayed until Nov. 1, 2008 so the DOT can receive more comments on that aspect of the regulation. Requiring DO for FU and RTD urine specimen collections is “a logical outgrowth of the development of the department’s increasing efforts to deal with the problem of cheating in drug tests,” the DOT says. However, petitioners have argued that the DOT’s NPRM “did not specifically raise for comment a proposal to make DO testing mandatory, rather than discretionary, in FU and RTD testing.”

Because of the growth and availability of products designed to beat a drug test, the DOT is concerned about specimen tampering and about the heightened motivation of employees returning to safety sensitive positions after positive tests to tamper with their specimens, the rule says. Such concerns have increased as information about the widespread availability of cheating products has become available, it says. Therefore, the DOT is adding a provision requiring DO collections of FU and RTD tests because transportation industry employees who have to take an FU or RTD test have already violated regulations by testing positive or refusing to test, the rule says. In addition, the DOT will accept comments on the section of the drug testing rule covering DO for FU and RTD urine specimen collections until Sept. 25, 2008, and implementation of the DO requirement for those drug test collections is delayed until Nov. 1, 2008.

All comments on the DOT’s drug testing rules need to include the docket number OST-2003-15245 at the beginning of the submission. Comments can be submitted electronically, by facsimile, by hand delivery, or by the U.S. Postal Service.

To submit comments electronically, petitioners should go to the Federal eRulemaking Portal at http://www.regulations.gov, and follow the online instructions for submitting comments. To submit comments by facsimile, call 1-202-493-2251.

The address to hand deliver comments is Docket Operations, Room W12-140 on the ground floor of the West Building, 1200 New Jersey Ave., SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays.

To submit comments by the U.S. Postal Service, mail them to Docket Operations, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Ave., SE, Washington, DC 20590.

J.J. Smith is an online editor/manager for SHRM.