Effective August 25, 2008, the U.S. Department of Transportation amended certain procedures for drug testing aviation, motor carrier, rail, transit, maritime and pipeline industry employees who are subject to the Omnibus Transportation Employee Testing Act (OTETA). The new regulations are expected to affect more than eight million employees. In seeking to address unscrupulous efforts by employees to provide a “clean” urine specimen by, among other ways, wearing a mechanical device designed to simulate the act of urination while delivering a “clean” urine sample, the DOT is instituting new, broader requirements for drug testing collection procedures.

Previously, direct observation for the collection of a urine sample was required only for those employees who had tampered or attempted to tamper with a specimen. Employers also had the option of using direct observation for employees who were conducting return-to-duty test (after a prior positive result) and follow-up testing (after having violated the regulations and completing an evaluation and prescribed treatment). The new rules will require any employee who is taking either a return-to-duty drug test or who is subject to follow-up testing to submit to observed collections, beginning on November 1, 2008. Covered workers will be required “to raise their shirts, blouses, or dresses/skirts above the waist, and lower their pants and underpants, to show the observer, by turning around, that they do not have a prosthetic device on their person. After this is done, they may return their clothing to its proper position,” and produce a specimen “in such a manner that the observer can see the urine exiting directly from the individual into the collection container.” Observed collections will continue to be monitored by same-gender collection site personnel.