What is the impact of DOT Regulation Changes on Employer Drug Free Work Place Testing?

The recent revision to DOT regulation 49 CFR Part 40, specifically §40.67 “When and how is a directly observed collection conducted”, added paragraph (b) “As an employer, you must direct a collection under direct observation of an employee if the drug test is a return-to-duty test or a follow-up test.” The rule change, initially issued in June 2008 was stayed by the United States Court of Appeals for the District of Columbia Circuit effective November 1, 2008, but that stay was lifted on July 1, 2009. §40.67(b) thus became effective August 31, 2009.

For employers who conduct drug and alcohol testing under their own authority as part of a Drug Free Workplace Program, DOT’s rule change may impact their policy and procedures related to urine specimen collection, and specifically, their post-rehabilitation, aftercare, or follow-up testing. Many employers who have urine drug testing programs that are not DOT-mandated, choose to conduct those programs as “DOT look-alike” or “mirroring DOT”.

However, employers need to recognize that State or local statutes, regulations, administrative procedures, or ordinances, often limit, restrict or prohibit employers from applying DOT regulatory provisions to employee testing programs administered under their own, not federal, authority. Another potentially limiting factor in applying DOT testing requirements in a non-DOT testing program is the terms or conditions of a collective bargaining agreement.

Using the DOT’s rule revision requiring that employers must direct a collection under direct observation for all DOT return to duty and follow-up drug tests as an example, what are the potential impacts for employers applying this requirement to their non-DOT testing programs?

State Laws Restrictions on Direct Observation Specimen Collection

  • 4 states expressly prohibit direct observation of urine specimen collections (CT, ME, OK, RI)
  • Boulder, CO prohibits directly observed specimen collections
  • PR prohibits directly observed collections except where there is reason to believe original specimen has been adulterated
  • HI prohibits directly observed collections except following suspected adulteration
  • In LA specimen collection procedures must follow SAMSHA Guidelines, not DOT procedures
  • Under the UT voluntary drug testing statute-specimens must be collected with due regard for the privacy of the person tested
  • State Case Law Affecting Direct Observation Specimen Collection

      • AK-Direct observation collections may be considered violation of state privacy protections
      • CA-state employer could not use direct observation without “substantial cause” (i.e. evidence of adulteration) Hansen v. CA Dept of Corrections
      • MA-Direct Observation collection of non-safety-sensitive employee may be a problem. A drug test is considered “non-invasive” if not directly observed (O’Brien v. MA Bay Transit Authority)

    Employers conducting testing in any of the states or locales identified in the above paragraphs may not be able to apply the DOT provisions for direct observation of specimen collections in their non-DOT testing programs. The restrictions or prohibitions on direct observation of urine specimen collections would govern any circumstance for testing, not only return to duty, follow-up or post-rehabilitation tests. These state laws and applications from relevant case law are preempted when the testing is DOT-mandated, but such preemption does not extend to testing the employer conducts under its own authority.