On July 30, 2009, the Department of Transportation (“DOT”) published a Final Rule reinstating the requirement for direct observation collections for return-to-duty and follow-up drug and alcohol tests. The direct observation provision was originally included in a final rule published June 25, 2008. The June 25, 2008 Final Rule modified 49 C.F.R. 40.67(b) (drug and alcohol testing procedures) and added a new paragraph (§ 40.67(i)) addressing the use of direct observation collections, as a method to combat attempts by employees to cheat on their drug tests. Direct observation requires an observer of the same gender as the tested employee to actual observe the urine go directly from the employee’s body into the collection container.
The amended rule specifically required direct observation collections for all return-to-duty and follow-up tests (e.g. testing of employees who have already failed or refused to take a prior drug test) and also required that the observer be allowed to check the individual for prosthetic or other cheating devices used to carry “clean” urine and urine substitutes (e.g. the “Whizzinator”, the “Urinator” or the “Executive Ultra Realistic Kit” etc.). Under this latter requirement, an employee being tested must lift his or her shirt and expose himself or herself sufficiently enough to allow the observer to inspect for cheating devices (e.g. “please lift up your shirt and drop your shorts”).
However, the direct observation provision of the June 25, 2008 final rule was stayed by the United States Court of Appeals for the District of Columbia Circuit effective November 1, 2008. Subsequently, on July 1, 2009 the Court issued a Mandate which lifted the stay. In effect, the Court’s Mandate reinstated the direct-observation requirements of DOT’s June 25, 2008 final rule. The DOT’s July 30, 2009 final rule was then published to implement the Court’s ruling.
Effective August 31, 2009, direct observation of return-to-duty and follow-up tests will be the law. “Lift up your shirt and drop your shorts” will be mandatory for employees who have already failed or refused to take a prior drug test.