Beginning November 1, 2008, employers covered by the United States Department of Transportation’s controlled-substance testing regulations must conduct direct observation collection for “return to duty” and “follow-up” controlled substance tests. These regulations apply to employers governed by the Federal Highway Administration (such as private motor carriers), the Federal Railroad Administration (which regulates railroad operators), the Federal Aviation Administration (which regulates airlines and related industries), the Federal Transit Authority (which regulates companies doing business with mass transit providers), and the Research and Special Programs Administration (which regulates pipeline industries).

Part of the DOT’s rationale for requiring direct observation for these two types of tests is the fact that the individuals subject to these two tests have already tested positive or refused to submit to testing in violation of DOT’s controlled-substance testing requirements. The DOT believes the individuals in these categories have a greater than average likelihood of using illegal drugs in the future and, consequently, higher than average motivation to cheat on a test. In addition, the Department has studied the dramatic increase in available cheating products on the market, which are solely designed to help illegal drug users defeat drug tests. Some of these products that are now sold to help employees avoid detection include prosthetic devices that look like real human anatomy, even color matched.

The DOT is implementing this observation requirement while attempting to strike an appropriate balance between the safety of employees and the public and individual privacy concerns. Thus, for example, the direct observation collection of urine specimens will require the use of a same-gender observer.

Employers subject to the DOT’s new direct observation requirements for return to duty and follow-up testing should consult with their collection facilities regarding these requirements. In addition, employers should consider how best to notify the employees in their work force who potentially will be subject to this requirement. That way, if and when a direct observation test arises down the road, the employee in question will not be shocked or surprised by the requirement.