You may remember reading a couple of months ago about DOT publishing new rules for direct observation collection of urine specimens. Now, DOT is postponing implementation of some parts of that rule until November 1, 2008.
What exactly is going on?
There is definitely some confusion going on, and as an employer, you are not alone in trying to understand the issues that seem to be in question.
Let us look at what actually happened:
On June 25, 2008 DOT published a final rule addressing a number of directives related to specimen validity testing and a modification in procedures for collecting urine specimens under direct observation (DO).
Because of the wide availability of prosthetic devices for providing clean urine, and findings by the Government Accounting Office that collectors are frequently less than diligent in preventing cheating during urine specimen collections, DOT directed that all DO collections also include the employee raising his/her shirt up to the navel and lowering pants/skirt to mid thigh. This was to ensure that no prosthetic devise was concealed on their person. This procedure was explained in the DOT notice of proposed rulemaking (NPRM) published on October 31, 2005.
In the June 25 final rule, DOT also mandated that all return-to-duty and follow-up tests (collections) be conducted under DO. Previously, DO collections for these type of tests were an employer option. Several labor organizations petitioned DOT to suspend this requirement since it had not been discussed in the October 31, 2005 NPRM. On August 26, 2008 DOT published a notice in the Federal Register changing the implementation date (for 40.67(b) – the section addressing mandatory DO collections for return-to-duty and follow-up) from August 25 to November 1, 2008 and provided a 30-day period for interested parties to provide comments.
What does all of this mean to you?
Simply put, all DO collections will require the new procedure to raise the shirt and lower pants/skirt. As an employer, you need to make sure that your collection site(s) or Third Party Administrator is aware of this requirement and will abide by it. Second issue – requirement for DO collections for return-to-duty and follow-up tests will remain employer option – until November 1 – when DOT will make a final decision.
That sounds pretty simple and employers may question what all the fuss is about? To a large degree, it’s all a matter of misinterpretation and misunderstanding. There are about 50 comments in the DOT docket from individuals and associations providing their views on this issue. Some commenters seem to think that DO collections are a new requirement and question the procedure’s invasiveness as well as the difficulty of meeting the requirement to have the same gender observer. This is puzzling, since the DO requirement has been in existence since August 2000. One may suspect that these individuals or companies have not been conducting DO collections in the past and are now surprised and think it is a new requirement.
Individual Comments
Some comments are from individual employees who are subject to these rules. Understandably, many of them are responding to the new procedure of lifting the shirt and lowering pants/skirt as overreaching and invasive to the extreme. Many labor organizations in addition to objecting to the shirt and pants/skirt procedure are lumping together the original DO requirement and the new directive making DO mandatory for return-to-duty and follow-up testing. Their original concern was that there was no comment period for requiring DO collections for return-to-duty and follow-up. DOT is now providing a 30-day period for comments on this subject.
SAP Comments
Quite a number of comments are from substance abuse professionals (SAP) and other individuals who provide treatment to drug and alcohol abusers. Most of them favor DO collections for return-to-duty and follow-up collections on the basis that these individuals have already provided evidence that they are users and/or dependent on drugs. In the SAP’s experiences, drug addicts often revert back to their destructive behavior and will use any means possible to avoid detection of their continued drug use. Drug testing is one way to not only detect use, but to also help and deter these individuals from reverting to their drug use behavior. Additionally, some SAPs indicated that many employers are reluctant to direct DO collections for return-to-duty and follow-up tests, thereby providing a potential opportunity for an employee who already is at risk to try and cheat on a drug test. Many of the comments state that if the concern is for safety of the traveling public, then DO collections for return-to-duty and follow-up are more than appropriate.
Collection Facility Comments
A number of collection sites made comments that they would not be able to meet these new DO requirements because their entire staff is female and most of the employees requiring drug testing are male. Here again, if this is what an employer hears from a collection site, the employer needs to ask what the site is doing now to meet the current DO requirement. There were some comments suggesting that if employers/ supervisors identified an individual for testing (return-to-duty and follow-up) and then accompanied that individual to the collection site, there would be no opportunity for the employee to obtain adulterants or prosthetic devices prior to the test. That may be true, but most employers do not follow these procedures, plus a return-to-duty test is usually scheduled to a certain degree.
BOTTOM LINE: Direct observation testing, to include raising shirt and lowering pants/skirt is here to stay. An employer and/or collection site must conduct these under certain criteria spelled out in the regulations. Mandatory DO collections for return-to-duty and follow-up testing is suspended until November 1, 2008 (Note: employers currently have the option to require this type of collection.) As an employer, you have the opportunity to make comments to the DOT docket on this issue (htt;://www.regulations.gov The Docket number is OST-2003-15245). Your comments are always important.
Stay tuned to this publication; as soon as DOT makes a determination related to mandating DO collections for return-to-duty and follow-up, we will publish the information in this Newsletter.