United States: Transportation Workers Face Tougher Drug Testing Procedures: Observed Collections Designed To Thwart Abuses

Last Updated: August 8 2008
Article by Nancy N. Delogu and Donald W. Benson

More than eight million regulated workers in the transportation and pipeline industries will face more stringent drug testing collection procedures when new federal transportation regulations go into effect August 25, 2008. The new rules, which are included in and modify 49 C.F.R. Part 40, address "specimen validity" and seek to deal with what appear to be widespread efforts by workers to "beat" drug tests.

The new final rules include various mandatory laboratory-based tests intended to improve the detection of samples that have been adulterated by masking agents or diluted by water. Concern about the proliferation of mechanical devices designed to be worn by an individual to simulate the act of urination while delivering a "clean" urine sample has also triggered new, broader requirements for observed collections. Commencing with the rule's effective date, all return-to-work and follow-up urine collections must be observed collections.

At present, observed collections are required only in a handful of situations, such as when the collector believes that the specimen donor has attempted to tamper with or adulterate his test specimen. The new rules will require any employee who is taking either a return-to-work drug test (after a prior positive result) or who is subject to follow-up testing (after having violated the regulations and completing an evaluation and prescribed treatment) to submit to observed collections.

Affected workers will be required "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," and produce a specimen "in such a manner that the observer can see the urine exiting directly from the individual into the collection container." Observed collections will continue to be monitored by same-gender collection site personnel.

Workers in the U.S. transportation industry are subject to drug and alcohol prohibitions and testing requirements pursuant to the Omnibus Transportation Employee Testing Act (OTETA). As currently drafted, the Department of Transportation (DOT), which is charged with implementing that law, requires workers subject to regulation by the Federal Aviation Administration (FAA), Federal Motor Carrier Safety Administration (FMCSA), Federal Railroad Administration (FRA), Federal Transit Administration (FTA), and Pipeline and Hazardous Materials Administration (PHMSA), to be tested according to a uniform set of procedural guidelines, codified at 49 C.F.R. Part 40. (Individual agencies have adopted unique regulations regarding when an employee or applicant may be subject to testing.) The most recent announcement amounts to the most significant change to the "Part 40" guidelines since 2001.

Although the new rules may seem draconian, the DOT's action follows a number of well-publicized events calling into question the current rules' ability to identify drug abusers. In May 2008, a report released by the Government Accounting Office (GAO) on the drug and alcohol testing program administered by the FMCSA found widespread noncompliance with testing and collection procedures and recommended several changes to existing DOT rules. In particular, the report suggested that: (1) the FMCSA should strengthen its enforcement of safety audits for new carriers; (2) Congress should authorize FMCSA to levy fines when collection sites do not follow federal drug and alcohol testing protocols; and (3) Congress should create a national database of drug testing information for reducing the number of drivers who test positive but who continue to drive, so that states can more effectively revoke commercial motor vehicle licenses.

The report cited as a significant concern the widespread availability and use of adulterants, mechanical delivery devices, and synthetic urine that can effectively mask evidence of substance abuse. Moreover, the GAO report found that a significant number of collection sites appear to be out of compliance in ensuring that DOT protocols are followed when specimen testing occurs under the existing regulations. In one GAO investigation, collectors at 10 of 24 sites failed to ask the undercover drivers to empty their pants pockets to ensure that no items were present that could be used to adulterate the specimen, as required by DOT protocols. The investigators also were able to purchase adulterants and synthetic urine and to use them in 8 of the 24 tests; the laboratories failed to discover the adulterants or substitutes.

Last fall, the U.S. House of Representatives' Committee on Infrastructure and Transportation held subcommittee hearings that revealed widespread problems with collectors who were not implementing the DOT regulations correctly.

One source estimated that as many adulterated specimens as positive specimens are received. A study conducted roadside on anonymous truckers by the Oregon State Police last spring found that one in ten tested positive for a banned substance. While the GAO report and congressional hearings focused on the FMCSA and not the other DOT operating administrations subject to testing (i.e., the FAA, FRA, FTA and PHMSA), drivers represent the greatest number of covered transportation workers subject to testing, and the new rules will apply to all DOT-mandated drug testing programs.

Advice To Employers

Employers with regulated workers should review and consider amending their DOT drug and alcohol testing programs, particularly for those workers where regulatory oversight rules require that they be presented with detailed information on the testing process, so as to ensure that workers understand the circumstances in which observed collections may occur. More importantly, perhaps, employers should consider auditing their collection processes to ensure compliance with the rules and should make sure that those charged with implementing the policy, from management to outside collection personnel, are aware of the new regulatory requirements.

Businesses that conduct drug testing according to DOT procedures, but which are not actually subject to DOT requirements, should also consider updating their policies and procedures. However, observed collections, soon to become common within the DOT regulatory framework, are clearly prohibited by statute in a number of states and are not advised for non-regulated workers in jurisdictions with strong privacy protections. Although the DOT regulations do preempt contrary state law as to regulated transportation workers, state law will take precedence for those not actually subject to DOT regulation.

The new regulations can be found in the Federal Register at 73 Fed. Reg. 33735 (June 13, 2008) and are effective August 25, 2008.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Nancy N. Delogu
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions