DOT MAKES A FINAL, FINAL, FINAL DECISION ON DIRECT OBSERVATION COLLECTIONS

Those of you who have been reading this column over the last few months are probably saying enough is enough, and rightfully so. It has taken DOT a year to resolve a simple aspect of their rule – mandatory direct observation (DO) urine specimen collection for return-to-duty (RTD) and follow-up (FU) drug testing. As the saying goes, the wheels of government grind slowly.

So, what is the final, final answer? Believe it or not, confusion still reigns. Although DOT has to be complimented on sticking to their guns, the courts dragged this issue out ad infinitum. So, here is the final, final answer: as of August 31, 2009, all RTD and FU urine specimen collections must be conducted using DO procedures; no ands, ifs, or buts.

Now you are asking yourself, so what’s the big deal? Well, not everyone gets the word and not everyone interprets it the same way. Some individuals and organizations are interpreting this final rule guidance from DOT as meaning that the requirement to lower pants/skirt and raise shirt/blouse as affecting only RTD and FU collections. Wrong! First, the whole legal issue for a year has been about making DO mandatory for RTD and FU. That’s it!

The requirement to drop pant/skirt and raise shirt/blouse for DO collections has been in effect for all DO collections since August 25, 2008 – to include DRT and FU if the employer directed it. So, the bottom line for this item is: ALL DO COLLECTIONS REQUIRED BY THE RULES ARE MANDATORY AND REQUIRE DROPPING PANTS/SKIRT AND RAISING SHIRT/BLOUSE. In other words, as an employer, you now have no discretion to determine if a DO collection should or should not be conducted. At this point, these are the triggering events that cause a DO collection – and you must do that – no options:

· The employee attempts to tamper with his or her specimen at the collection site.
-- The specimen temperature is outside the acceptable range;
-- The specimen shows signs of tampering ~ unusual color / odor / characteristic; or
-- The collector finds an item in the employee’s pockets or wallet, which appears to be brought into the site to contaminate a specimen; or
-- The collector notes conduct suggesting tampering.

● The Medical Review Officer (MRO) orders the direct observation because:
-- The employee has no legitimate medical reason for certain atypical laboratory results; or
-- The employee’s positive or refusal [adulterated / substituted] test result had to be cancelled because the split specimen test could not be performed (for example, the split was not collected).

● The test is a Return-to-Duty or a Follow-Up test.

What else is happening? Well, there are collection sites that apparently still have not gotten the word and conduct RTD and FU collections under the old procedures. Guess what? If that happens, you as the employer will be out some money! Why? Because § 40.67(n) reads: As the collector, when you learn that a directly observed collection should have been collected but was not, you must inform the employer that it must direct the employee to have an immediate recollection under direct observation.

This statement is a little confusing because it lays the responsibility on the collector, but that’s because § 40.67 addresses the whole direct observation collection process – and that mostly deals with the collector. In essence, as an employer, if you find out that a DO collection was to take place and did not, your responsibility is to send the employee for another test and ensure that it is done under DO conditions. Here’s the catch: you will have to pay for another test, because the first one (not observed) does not count.

If you have any employees who will be returning to safety-sensitive duty or are currently in a FU program, it is to your benefit to do two things. One, inform these employees that the rules have changed – when they take an RTD or FU test, it will be observed (and don’t forget to tell them that they will have to drop their pants/skirt and lift their shirt/blouse – if they don’t know this, they will absolutely go bonkers and may refuse to take the test). Secondly, when an RTD or FU collection is to take place, make the effort to call the collection site and ensure that they know what to do and that they have available a same gendered individual to conduct the collection. If need be, as an employer, you may have to send a management person with the employee to be the observer. It would also not hurt to contact your consortium/third party administrator (if you have one) to make sure that they are also on the same sheet of music.

Bottom line: All DO collections involve the employee having to drop his/her pants/skirt to mid-thigh, raise shirt/blouse up to the navel, and turn around completely once. The observer must be of the same gender. The employer no longer has the option to determine if a DO collection is to be conducted; if it’s required by the rules, it must be done. And finally, all RTD and FU collections must be conducted using DO procedures. If the required DO is not accomplished, a second re-collection under DO must be done. So, lets shelf this DO issue and concentrate on operating a viable and cost-effective drug and alcohol testing program.