On November 12, 2008, the U.S. Court of Appeals for the D.C. Circuit temporarily delayed the requirement for Department of Transportation (DOT) mandatory direct observation (DO) return-to-duty and follow-up drug testing, that ordinarily would apply to all DOT-regulated employers. Order, BNSF Railway Co. v. Department of Transportation, No. 08-1264 (D.C. Cir. November 12, 2008). This is the second time the D.C. circuit court delayed a November 1, 2008, requirement for DOT mandatory DO testing. Order, BNSF Railway Co. v. Department of Transportation, No. 08-1264 (D.C. Cir. October 31, 2008) (temporarily delaying the rule with an administrative stay). As recently as October 22, 2008, DOT reaffirmed its intent to make testing requirements in 49 C.F.R. § 40.67(b) mandatory as part of a final rule issued on June 25, 2008, and scheduled to go into effect on November 1, 2008. 73 Fed. Reg. 62910 (October 22, 2008). The amendment to § 40.67(b) requires employers to implement mandatory DO collections for all return-to-duty and follow-up drug testing.
To balance employee privacy expectations and safety interests, DOT reserves DO to situations in which employees have heightened incentives to cheat on drug tests. DOT found that employees have an increased incentive to cheat on return-toduty and follow-up drug testing. 73 Fed. Reg. 62910 (October 22, 2008). Possible alternatives to DO urine testing, such as oral fluid and sweat specimen testing, must await approval by the Department of Health and Human Services and adoption by DOT. Id. The new § 40.67(b) changes an option for employers to a mandatory directive: “as an employer, you must direct a collection under direct observation of an employee if the drug test is a return-toduty test or a follow-up test.” Id. (emphasis added).
The circuit court delayed the date for mandatory compliance with the regulation, however, in order to give the court ample time to consider the merits of a motion for a stay regarding the amendment. Order, BNSF Railway Co. v. Department of Transportation, No. 08-1264 (D.C. Cir. November 12, 2008). On November 12, 2008, the court granted the motion for stay pending a decision on the merits of challenges to the amendment of 40.67(b). As a result, DO for return-to-duty and follow-up drug testing will continue to be a discretionary option for employers, rather than mandatory. Importantly, this stay of the amendment to 49 C.F.R. § 40.67(b) affects all DOT-regulated employers, including airlines, pipelines, trucking companies and railways. All other requirements of 49 C.F.R. Part 40 that went into effect on August 25, 2008, remain in effect, including the DO provision at 40.67(i) that requires a testing observer to check for prosthetic devises used to carry “clean” urine and urine substitutes. 73 Fed. Reg. 35,970 (June 25, 2008).