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Federal rules change process for repeat drug tests

The U.S. Department of Transportation issued new rules in June that improve protections against cheating on drug and alcohol tests. New rules include the mandatory use of specimen validity testing.

Recently, the USDOT received petitions from some transportation labor and management organizations asking that the Aug. 25 effective date be postponed for two provisions of the rule concerning the direct observation of urine collections.

Provision 1: The first of the two provisions would make direct observation mandatory in all follow-up and return-to-duty collections. Direct observation is currently authorized, but not required, in these circumstances.

Because notice of proposed rulemaking for the June 25 final rule had not specifically asked for comment on this provision, the department decided to hold a 30-day comment period. To allow for the comment period and the department’s response, the effective date of mandatory direct observation for the follow-up and return-to-duty testing provision has been changed to Nov. 1.

Provision 2: The second provision would require observers in all direct observation collections to check employees for the presence of prosthetic and other devices used to cheat on tests, by having employees raise and lower their clothing. The effective date of this provision will remain Aug. 25.

Nearly 800 ITD employees hold commercial drivers licenses, more than half of whom are maintenance employees, explains Cheryl Rost, manager of ITD Safety & Risk Management. Anyone whose specimen is invalid, according to lab results, must be re-tested and be subjected to the USDOT’s rule regarding direct observation.

“Employees with a positive test must sign an agreement to see a substance abuse professional, attend counselingas established by the substance abuse professional, and have follow-up testing at least 12 times within the calendar year.”

They also are subject to random selections.

The USDOT emphasizes that the new direct observation procedure will apply only to direct observation tests authorized or required by the current 49 CFR Part 40, and the rules going into effect on Aug. 25 will not result in any increase in the situations in which direct observation is used. Direct observation occurs in only a very small percentage of DOT test situations, where there is a heightened risk of an attempt to cheat.

The Department’s Notice was published in the Federal Register today, Aug. 26 and is on the ODAPC Website at:

http://www.dot.gov/ost/dapc/frpubs.html

“We want all interested parties to realize that the single change in the effective date affects ONLY 40.67(b) – mandatory direct observation for follow-up and return-to-duty testing. The rest of the June 25, 2008, final rule went into effect on Aug. 25 as scheduled,” said Jim L. Swart, director of the USDOT’s Office of Drug and Alcohol Policy and Compliance.